In a guardianship case, a court evaluator plays a vital role in the outcome of the proceeding. Contrary to popular beliefs, a court evaluator does not work for the Petitioner; the person filing the action, or for the person alleged to be incapacitated, known as the Alleged Incapacitated Person (“AIP”). In essence, the court evaluator serves as “the eyes and the ears” of the court. Pursuant to Article 81.09 (b) of the Mental Hygiene Law, a court will appoint a court evaluator to conduct an independent investigation to determine the capacity of the AIP and whether the AIP needs a guardian. A court evaluator is always appointed in a guardianship case, except where the court determines that the appointment is not necessary due to its appointment of counsel for the AIP.
The critical role of the court evaluator is to assist the court in reaching its decision as to the AIP’s capacity, the prognosis, and reversibility of any physical and mental disability, and the availability and reliability of sufficient resources to provide for the AIP’s personal needs or property management without the appointment of a guardian, to name a few. A court evaluator can be an agency, a not-for-profit corporation, an attorney, physician, social worker, accountant, nurse, or a person with knowledge of the personal and property affairs of the AIP. The court will select a court evaluator from a list maintained by the Office of Court Administration.
The court evaluator’s role includes, but is not limited to interviewing the Petitioner, the AIP, and the AIP’s family members and friends. The court evaluator may also conduct any additional interviews that the court evaluator deems appropriate. The AIP’s medical records are protected by patient/physician privilege and the AIP’s financial records are confidential. As such, these records will not be released without a court order. The court evaluator may seek the court’s permission to review medical and financial records to assist the court evaluator in determining whether the appointment of a guardian is necessary for the AIP.
In fact, the court evaluator will conduct an inquiry to address whether the AIP and the AIP’s finances are at risk and whether the AIP would suffer harm if a guardian is not appointed. Moreover, the court evaluator is required to take any steps necessary to protect the AIP and preserve the AIP’s property. Furthermore, the court evaluator will determine whether there AIP has any advance directives and whether the appointment of a guardian is the least restrictive alternative available for the AIP.
If you would like to learn more about your legal rights in a guardianship case, you should contact the Law Office of Tamara I. Jordan P.L.L.C.