New York Probate Lawyer Blog
In a New York Mental Hygiene Law Article 81 Guardianship proceeding, the Court typically appoints a Court Evaluator. The Court Evaluator performs an independent investigation and assists the Court in determining whether a person is incapacitated and who should be appointed as Guardian. The Court Evaluator’s fee is often paid from the funds of the Incapacitated Person, although the fee may be paid by the petitioner.
In a recent decision, Matter of A.M., dated 6/1/10 reported in the New York Law Journal, on Friday, June 11, 2010, p. 27, Justice Alexander W. Hunter, Jr. directed that a successor Guardian pay the fee of a Court Evaluator from funds the Guardian had collected on behalf of the Incapacitated Person. The Guardian had previously collected sufficient funds to pay the Court Evaluator’s fee but had spent the funds by making payments which included paying itself fees on account of the Guardian’s statutory commission. In effect, the Court ruled that the Court Evaluator’s court awarded fee took priority over the subsequently earned commission.
Judge Hunter’s decision shows that a Court Evaluator serves an important role in Guardianship proceedings. The information presented to the Court by the Court Evaluator is vital for a full determination.
The duties of the Court Evaluator include interviewing the Alleged Incapacitated Person, explaining the proceeding to the Alleged Incapacitated Person, determining whether the Alleged Incapacitated Person wants legal counsel, interviewing the petitioner and preparing a report and recommendations for the Court.
The Article 81 Guardianship statutes establish a procedure for the appointment of a property and/or personal needs Guardian that is beneficial and protective of the Incapacitated Person. These proceedings require a hearing in front of the Court and testimony from witnesses. Many times the hearings are contested and deal with disputes regarding incapacity, competing family members or others who desire to be appointed as Guardian, and issues concerning the misappropriation of the Alleged Incapacitated Person’s assets.