2023 New York Laws › MHY - Mental Hygiene › Title E - General Provisions › Article 81 - Proceedings for Appointment of a Guardian for Personal Needs or Property Management › 81.09 - Appointment of Court Evaluator.

§ 81.09 Appointment of court evaluator.
(a)  At the time of the issuance of the order to show cause, the court
shall appoint a court evaluator.
(b) 1. the court may appoint as court evaluator any person  including,
but  not  limited  to,  the mental hygiene legal service in the judicial
department where the person resides, a  not-for-profit  corporation,  an
attorney-at-law,  physician, psychologist, accountant, social worker, or
nurse, with knowledge of property management, personal care skills,  the
problems  associated  with  disabilities,  and  the  private  and public
resources available for the type of limitations the person is alleged to
have. The name of the  court  evaluator  shall  be  drawn  from  a  list
maintained by the office of court administration;
2.  if  the  court  appoints  the  mental hygiene legal service as the
evaluator and upon investigation in accordance  with  section  81.10  of
this  article  it  appears  to the mental hygiene legal service that the
mental hygiene  legal  service  represents  the  person  alleged  to  be
incapacitated  as counsel, or that counsel should otherwise be appointed
in accordance with section 81.10 of this article for the person  alleged
to be incapacitated, the mental hygiene legal service shall so report to
the  court.  The  mental  hygiene legal service shall be relieved of its
appointment as court evaluator whenever the mental hygiene legal service
represents as counsel, or is  assigned  to  represent  as  counsel,  the
person alleged to be incapacitated.
(c) The duties of the court evaluator shall include the following:
1. meeting, interviewing, and consulting with the person alleged to be
incapacitated regarding the proceeding.
2.  determining  whether  the alleged incapacitated person understands
English or only another language, and explaining to the  person  alleged
to  be  incapacitated,  in  a  manner which the person can reasonably be
expected to understand, the nature  and  possible  consequences  of  the
proceeding,  the  general  powers  and  duties  of a guardian, available
resources, and the rights to which the person is entitled, including the
right to counsel.
3. determining whether the person alleged to be  incapacitated  wishes
legal  counsel  of  his  or her own choice to be appointed and otherwise
evaluating whether legal counsel should be appointed in accordance  with
section 81.10 of this article.
4. interviewing the petitioner, or, if the petitioner is a facility or
government agency, a person within the facility or agency fully familiar
with the person's condition, affairs and situation.
5.  investigating  and  making a written report and recommendations to
the court; the  report  and  recommendations  shall  include  the  court
evaluator's  personal  observations  as  to  the  person  alleged  to be
incapacitated and his or her condition, affairs and situation,  as  well
as information in response to the following questions:
(i)  does  the  person  alleged  to  be  incapacitated  agree  to  the
appointment of the proposed guardian and to the powers proposed for  the
guardian;
(ii) does the person wish legal counsel of his or her own choice to be
appointed  or  is  the appointment of counsel in accordance with section
81.10 of this article otherwise appropriate;
(iii)  can  the  person  alleged  to  be  incapacitated  come  to  the
courthouse for the hearing;
(iv)  if  the  person  alleged  to be incapacitated cannot come to the
courthouse, is the  person  completely  unable  to  participate  in  the
hearing;
(v)  if  the  person  alleged  to  be incapacitated cannot come to the
courthouse, would any meaningful participation result from the  person's
presence at the hearing;
(vi)  are  available  resources sufficient and reliable to provide for
personal needs or property  management  without  the  appointment  of  a
guardian;
(vii)  how  is the person alleged to be incapacitated functioning with
respect to the activities of daily living and what is the prognosis  and
reversibility  of  any  physical  and mental disabilities, alcoholism or
substance dependence? The response to this question shall  be  based  on
the evaluator's own assessment of the person alleged to be incapacitated
to  the  extent  possible,  and  where  necessary, on the examination of
assessments  by   third   parties,   including   records   of   medical,
psychological  and/or  psychiatric  examinations  obtained  pursuant  to
subdivision (d) of this section. As  part  of  this  review,  the  court
evaluator  shall  consider the diagnostic and assessment procedures used
to determine the prognosis and reversibility of any disability  and  the
necessity, efficacy, and dose of each prescribed medication;
(viii)  what  is  the  person's  understanding and appreciation of the
nature and consequences of any inability to  manage  the  activities  of
daily living;
(ix)  what  is  the  approximate  value  and  nature  of the financial
resources of the person alleged to be incapacitated;
(x) what are the person's preferences, wishes, and values with  regard
to managing the activities of daily living;
(xi)  has  the person alleged to be incapacitated made any appointment
or delegation pursuant to section  5-1501,  5-1505,  or  5-1506  of  the
general obligations law, section two thousand nine hundred sixty-five or
two  thousand  nine  hundred  eighty-one  of the public health law, or a
living will;
(xii) what  would  be  the  least  restrictive  form  of  intervention
consistent  with  the  person's functional level and the powers proposed
for the guardian;
(xiii) what assistance is necessary  for  those  who  are  financially
dependent upon the person alleged to be incapacitated;
(xiv)  is  the  choice  of  proposed guardian appropriate, including a
guardian nominated by the allegedly  incapacitated  person  pursuant  to
section  81.17  or subdivision (c) of section 81.19 of this article; and
what steps has the proposed guardian taken or does the proposed guardian
intend to take to identify and meet the current and  emerging  needs  of
the  person alleged to be incapacitated unless that information has been
provided to the court by the local department of  social  services  when
the proposed guardian is a community guardian program operating pursuant
to  the  provisions  of  title  three  of  article  nine-B of the social
services law;
(xv) what potential conflicts of interest, if any,  exist  between  or
among  family  members  and/or  other  interested  parties regarding the
proposed guardian or the proposed relief;
(xvi) what potential conflicts of interest, if  any,  exist  involving
the person alleged to be incapacitated, the petitioner, and the proposed
guardian; and
(xvii) are there any additional persons who should be given notice and
an opportunity to be heard.
In   addition,  the  report  and  recommendations  shall  include  any
information required under subdivision (e)  of  this  section,  and  any
additional information required by the court.
6.  interviewing  or  consulting with professionals having specialized
knowledge in the area of the person's alleged incapacity  including  but

not  limited to developmental disabilities, alcohol and substance abuse,
and geriatrics.
7. retaining an independent medical expert where the court finds it is
appropriate,  the  cost  of  which is to be charged to the estate of the
allegedly incapacitated person unless the person is indigent.
8. conducting any other investigations or making recommendations  with
respect to other subjects as the court deems appropriate.
9. attending all court proceedings and conferences.
(d)  The  court  evaluator  may  apply  to the court for permission to
inspect   records   of   medical,   psychological   and/or   psychiatric
examinations  of  the  person  alleged  to  be  incapacitated; except as
otherwise provided by federal or state law, if the court determines that
such records are likely to contain information  which  will  assist  the
court  evaluator in completing his or her report to the court, the court
may order the  disclosure  of  such  records  to  the  court  evaluator,
notwithstanding      the      physician/patient      privilege,      the
psychologist/patient privilege, or the social worker/client privilege as
set forth in sections four thousand five  hundred  four,  four  thousand
five  hundred  seven,  and four thousand five hundred eight of the civil
practice law and rules;  if  the  court  orders  that  such  records  be
disclosed  to  the  court evaluator, the court may, upon the court's own
motion, at the request of the court evaluator, or upon  the  application
of   counsel  for  the  person  alleged  to  be  incapacitated,  or  the
petitioner, also direct such further disclosure of such records  as  the
court deems proper.
(e)  The  court  evaluator  shall have the authority to take the steps
necessary  to  preserve  the  property  of  the  person  alleged  to  be
incapacitated pending the hearing in the event the property is in danger
of  waste,  misappropriation,  or loss; if the court evaluator exercises
authority under this subdivision, the court evaluator shall  immediately
advise  the  court of the actions taken and include in his or her report
to the court an explanation of the actions the court evaluator has taken
and the reasons for such actions.
(f) When judgment grants a petition, the court may award a  reasonable
compensation  to  a  court evaluator, including the mental hygiene legal
service, payable by the estate of the  allegedly  incapacitated  person.
When  a  judgment  denies or dismisses a petition, the court may award a
reasonable allowance to a court evaluator, including the mental  hygiene
legal  service, payable by the petitioner or by the person alleged to be
incapacitated, or both in such proportions as the court may  deem  just.
When   the   person   alleged   to  be  incapacitated  dies  before  the
determination  is  made  in  the  proceeding,  the  court  may  award  a
reasonable  allowance to a court evaluator, payable by the petitioner or
by the estate of the decedent, or by both in  such  proportions  as  the
court may deem just.