Court evaluators are not parties to a Mental Hygiene Law article 81 guardianship proceeding, and it matters.
Court evaluators, known as the “eyes and ears” of the court, are essential actors in a guardianship proceeding, but they are not a party to the proceeding. Parties to the proceeding include the petitioner and the alleged incapacitated person (AIP).
This matters not only in a theoretical sense, but in a practical sense.
First, unlike the attorney for the AIP, who represents a party, the court evaluator cannot serve a subpoena without a court order, even if the court evaluator is an attorney. Pursuant to CPLR 2302(a):
Subpoenas may be issued without a court order by the clerk of the court, a judge where there is no clerk, the attorney general, an attorney of record for a party to an action, …(emphasis added).
Court evaluators are (unsurprisingly) absent from the list. The attorney for the AIP, “an attorney of record for a party to an action”, makes the list. This is somewhat ironic because the court evaluator is the court’s chief investigator in an article 81 proceeding, and is far more often in need of subpoena powers than AIP’s counsel. In many instances, this means that the court evaluator will need a court-ordered subpoena issued to fulfill their duties.
Second, the court evaluator has no right to appeal. In re LulaXX, the court evaluator’s cross motion for leave to appeal was dismissed by the Court of Appeals of New York “upon the ground that Mental Hygiene Legal Service [the court evaluator] is not a party to this proceeding.” (88 N.Y.2d 842, 843, 1996 N.Y. LEXIS 1021, *1, 667 N.E.2d 333, 644 N.Y.S.2d 683).
The court evaluator is not a party to an article 81 proceeding, and it matters.