Article 81 of the New York Mental Hygiene Law (“MHL”) contains the provisions regarding the appointment of a Guardian for a person who is incapacitated. The New York Probate Lawyer Blog has previously discussed that the statute provides powers for a Guardian for property management (MHL 81.21) and for personal needs (MHL 81.22).
In most Guardianship proceedings the Court will appoint a Court Evaluator (MHL 81.09). A Court Evaluator is named in the Order to Show Cause that is signed by the Court when the Guardianship case is commenced. The Court Evaluator’s job is essentially to perform an investigation of the case and prepare a written report and recommendation for the Court. This investigation and report concerns such issues as the incapacity of the person alleged to be in need of a Guardian, the nature of such person’s property and assets and who is the most appropriate person to be appointed as Guardian.
In many instances the time expenditures for a Court Evaluator to perform a full investigation, prepare a report, and attend all Court hearings can be quite extensive. This is especially so when the Guardianship proceeding is contested. A Contested Guardianship Proceeding can involve issues regarding whether the alleged incapacitated person actually needs a Guardian or there may be intra-family fighting as to which family member is most appropriate to be appointed as Guardian.
Regardless of the complexity of the case, the Court Evaluator is usually entitled to be paid a fee for the services incurred in performing the job. MHL 81.09(f) states that when the Court appoints a Guardian and grants the petition, the Court can award a reasonable fee to be paid from the incapacitated person’s assets. However, when the Guardianship application is denied, the Court may direct that a Court Evaluator’s fee be paid from the alleged incapacitated person’s assets and/or directly by the person who commenced the proceeding.
Sometimes, the alleged incapacitated person dies during the Guardianship case. In this circumstance, the statute provides that the Court may award a fee to be paid by the person’s estate and/or the petitioner. A recent case decided by Justice Alexander W. Hunter, Jr. (Supreme Court, Bronx County) entitled Matter of Soto, decided on August 2, 2013 and reported in the New York Law Journal on August 29, 2013, concerned this latter situation. In Soto, the Court had issued an Order and Judgment appointing a Guardian and had awarded a fee to the Court Evaluator. However, before the Guardianship actually commenced the incapacitated person died. Therefore, the Guardian could not pay the Court Evaluator’s fee. Thereafter, when the Court Evaluator made an application to the Court to have the petitioner personally pay the fee, the Court denied the application and directed the Court Evaluator to file a claim in the Surrogate’s Court against the incapacitated person’s estate for payment of the fees.
Guardianship cases can be very complicated and require the assistance of an experienced New York Guardianship Attorney. I have represented clients who have filed petitions to be appointed as Guardians for family members and friends. All aspects of these matters need to be considered including the necessary proof of incapacity and the manner in which expenses such as Court Evaluator’s fees are to be paid.
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