The Court Evaluator is not only a critical player in an article 81 guardianship proceeding, its role is unique to all other court proceedings.
The Court Evaluator is frequently described as the “eyes and ears of the court”. Their job, in essence, is that of an investigator, tasked with gathering detailed information about the case to assist the Court in reaching its decision as to whether a guardian should be appointed.
The Court Evaluator is not a party to a Mental Hygiene Law (MHL) article 81 adult guardianship proceeding, and is impartial in its outcome, except to the extent that the Court Evaluator asserts its own independent position. Instead, “a court evaluator is a neutral appointee entrusted with duties and responsibilities as set forth by statute, to assist the court in determining whether a guardian should be appointed, or whether there are less restrictive measures that can be employed to protect the subject of the proceeding.”
The Court Evaluator is not an adversarial party and does not serve as an attorney (although Court Evaluators often happen to be lawyers). The Court Evaluator works as an arm of the Court and the assessment it makes is independent in nature.
In Matter of Wogelt, the Court opined:
The evaluator’s role under article 81 is that of an independent investigator, empowered to assist the court in independently assessing the totality of circumstances affecting the person alleged to be incapacitated (AIP), determining the AIP’s personal capabilities, marshalling the AIP’s resources, selecting and empowering an appropriate guardian, and assuring that the due process rights of the AIP are not violated.
MHL § 81.09 lays out the exhaustive and detailed list of the Court Evaluator’s duties, which includes, among other things,
- Meeting and interviewing the Alleged Incapacitated Person (AIP);
- Explaining to the AIP their rights and the nature of a guardianship proceeding;
- Interviewing the Petitioner (the party who seeks to have a guardian appointed for the AIP);
- Investigating what the AIP owns and their financial resources;
- Investigating the AIP’s mental capacity; and
- Filing a report with the Court detailing the Court Evaluator’s findings.
The Court Evaluator may also apply to the Court for permission to inspect the AIP’s medical records and records of psychological or psychiatric examinations.
The Court Evaluator’s investigatory capabilities and information gathering powers are especially important because there is no CPLR article 31 discovery in an adult guardianship proceeding in New York.
The Court Evaluator also serves as a safety mechanism, and has the authority to take the steps necessary to preserve the property and money of the AIP if it is in danger of waste, misappropriation, or loss.
Court Evaluators often are attorneys, but they don’t have to be. Pursuant of MHL § 81.09:
[T]he 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;
Once the Court Evaluator conducts its investigation, it will issue a written report to the Court. Usually the Judge will allow the parties to review the Court Evaluator’s report, but not always. Judges consistently require the Court Evaluator to seek permission before sharing their report with the parties prior to a hearing. Although there is no specific rule in the statute in this regard, it is a common practice, and is customary. Judges prevent the disclosure of the Court Evaluator’s report without authorization in order to ensure no private information is revealed unnecessarily, such as social security numbers.
Per MHL § 81.12, the Court Evaluator’s report will only be admitted into evidence if the Court Evaluator testifies and is subject to cross-examination.
While the Court Evaluator’s job usually ends after the Hearing, if a guardian is appointed it is not uncommon for judges to name a Court Evaluator as an interested person entitled to notice of further proceedings pursuant to MHL § 81.16(c)(3).
The Court Evaluator plays unique and critical role in the guardianship proceeding, serving as a third-party neutral and the Court’s chief investigator.