A New York Article 81 Guardianship Proceeding is commenced when a petition is filed with the Court. The general requirements of a petition were previously reviewed in a post dated August 16, 2010. Upon receipt of the petition the Court will then sign an Order to Show Cause in which Order the Court will set the date for the Court hearing and also appoint a Court Evaluator.
The job of the Court Evaluator is to make an independent investigation to assist the Court in determining whether the alleged incapacitated person is, indeed, incapacitated, and whom to select as the appropriate person to be appointed as Guardian. This investigation encompasses all other aspects surrounding the AIP such assets, the availability of advance directives such as powers of attorney and health care proxies and the future plan for the financial and personal welfare of the AIP.
Section 81.09 of the New York Mental Hygiene Law provides extensive guidelines for the Court Evaluator. For example, the statute identifies who can be appointed as a Court Evaluator which list includes an attorney-at-law, physician, social worker and the Mental Hygiene Legal Service.
The Court Evaluator will typically meet with all of the persons and witnesses involved with the proceeding, including the AIP, and review all of the papers and records that relate to the issues involved. The statute provides that the Court Evaluator may even apply to the Court for permission to review the AIP's medical and psychological records. The Court Evaluator also has authority to take emergency action to protect the AIP's property in the event the property may be misappropriated, wasted or lost before the Court hearing.
Following the investigation, the Court Evaluator will prepare a Report for the Court along with recommendations regarding issues such as the appointment of a Guardian, the appropriate person to act as Guardian and the powers of the Guardian. The Court Evaluator attends all Court proceedings and typically testifies as to the Report and recommendations. The Court relies a great deal upon the information presented by the Court Evaluator in making the final decision in a Guardianship proceeding.
I have helped many clients over the past 30 years resolve issues relating to estate planning, estate settlement and Article 81 Guardianship proceedings. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.