D. Court Evaluator
| Jurisdiction | New York |
D. Court Evaluator
1. Appointment of Court Evaluator
The twin statutory goals of assessing a person in terms of the person's functional level and imposing the least restrictive dispositional alternative are supported by the mandatory appointment of the court evaluator.216
a. Court Evaluator's Responsibilities
The court evaluator is intended to act as an independent investigator to gather information to aid the court in reaching a determination about the person's capacity, the availability and reliability of alternative resources, and in assigning the proper powers to the guardian and selecting the guardian.217 The court evaluator is required to investigate the person's situation and provide written responses to a statutory list of questions. These questions are designed to elicit information that will assist the court in making the required determinations regarding the necessity of the appointment of a guardian, the functional level of the person, his or her decision-making capacity and the least restrictive alternative.218 Most important, in answering these questions, the report of the court evaluator should not be a rubber stamp of how others view the person. The court evaluator must provide the court with his or her meaningful, independent exploration of all aspects of the life of the alleged incapacitated person. A court evaluator is entitled to absolute immunity in that role. As an appointed arm of the court, the court evaluator fills a quasi-judicial role.219
The court evaluator also must investigate "a guardian nominated by the allegedly incapacitated person pursuant to § 81.17 or subdivision (c) of § 81.19."220 This provision reinforces the requirement that the court evaluator investigate anyone proposed as guardian, including the nomination by the alleged incapacitated person. However, it does not diminish in any way the right of the alleged incapacitated person to make an advance nomination regarding the choice of guardian. Priority must be given to the alleged incapacitated person's choice, unless the court determines that "the nominee is unfit or the person demonstrates that he or she no longer wishes the nominee to serve."221
If information regarding a community guardian program has already been provided to the court by the local department of social services, the court evaluator does not have to duplicate this work.222
The court evaluator must carefully consider the type of "diagnostic and assessment procedures used to determine the prognosis and reversibility of any disability and the necessity, efficacy, and dose of each prescribed medication."223 Reversibility is a critical consideration. By thoroughly investigating that possibility at the outset, careful consideration can be given to tailoring the powers of the guardian and the duration of the guardianship. The person's medications must also be examined carefully to assess their effect on the person's functional abilities. The court evaluator's role is critical,224 and the failure of the court evaluator to do a thorough investigation and provide the court with detailed information can hamper the court's effectiveness.225
b. Who May Be Appointed Court Evaluator
The court may appoint as court evaluator any person drawn from a list maintained by the Office of Court Administration who has 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 court evaluator may be an attorney at law, physician, psychologist, accountant, social worker, nurse or not-for-profit corporation.226 Mental Hygiene Legal Service (MHLS) may be appointed court evaluator for anyone in the community as well as residents in any type of facility.227
The court evaluator has the authority to take steps to preserve the property of the person pending the hearing if the property is in danger of waste, misappropriation or loss.228 The court evaluator is obligated to report to the court all such temporary actions and the reasons for such actions.229
c. Court Evaluator's Fee
In the event the court grants the petition, it may award the court evaluator, including Mental Hygiene Legal Service, reasonable compensation to be paid by the allegedly incapacitated person.230 When the court denies or dismisses a petition, or the person dies before the conclusion of the matter, the court may nevertheless award reasonable compensation, payable either by the petitioner231 or by the person alleged to be incapacitated, or both along equitable lines.232
Where the court believes that the petitioner brought the proceeding based on improper motives, it will likely require petitioner to pay the court evaluator's fees.233
The Second Department has held that the court must have a hearing to establish the court evaluator's fees even when the petition is dismissed.234
2. Court Evaluator's Access to the Alleged Incapacitated Person and the Alleged Incapacitated Person's Medical Records Without His or Her Consent
a. Meeting the Alleged Incapacitated Person
One of the responsibilities of the court evaluator is to meet, interview and consult with the alleged incapacitated person.235 At this time, the court evaluator may be able to obtain the individual's consent.
As noted in In re Heckl, the court evaluator's role offers the alleged incapacitated person "the statutory protection of providing the court with the independent report of the Court Evaluator regarding her 'personal wishes, preferences and desires.' "236 However, the alleged incapacitated person in that case did not want the protection that the statute was affording her. Rather, she sought to invoke the constitutional protection of the Fifth and Fourteenth Amendments against self-incrimination. The petitioners claimed that the concern was for the alleged incapacitated person's well-being; while the alleged incapacitated person claimed that the petitioners were only "seek[ing] to benefit themselves by controlling her company and her fortune."237 Since the alleged incapacitated person had retained counsel, she argued that the appointment of a court evaluator should be excused under § 81.10(g),238 and that having to answer to any questions posed by the court evaluator violated her constitutional right against self-incrimination.
The Appellate Division affirmed the lower court decision that the right of self-incrimination does not attach in a guardianship proceeding. However, it concluded that the lower court erred in compelling the alleged incapacitated person to meet with the court evaluator under pain of an order of contempt. The court held that although the court evaluator has a statutory obligation to make every effort to meet the alleged incapacitated person, the alleged incapacitated person is under no obligation to agree to that meeting.
b. Additional Procedures
The court evaluator may apply to the court for permission to inspect the records of medical...
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