Senate Bill S8086

                                 
BILL NUMBER: S8086

SPONSOR: PERSAUD
 
TITLE OF BILL:

An act to amend the mental hygiene law, in relation to compensation of
individuals appointed by the court as court evaluators in guardianship
matters

 
PURPOSE:

This bill would amend the Mental Hygiene Law to expand the list of
persons who may be charged with paying the awarded compensation for
court evaluators in guardianship proceedings commenced pursuant to Arti-
cle 81 of the Mental Hygiene Law.

 
SUMMARY OF PROVISIONS:

This bill amends MHL 81.09 (f) to add petitioners as one of the parties
that the court may order to pay the compensation of court evaluators in
guardianship proceedings under Article 81 of the Mental Hygiene Law.

              

 
JUSTIFICATION:

A court evaluator is a fiduciary appointed by the court, pursuant to MHL
§ 81.09, to help determine the need for the appointment of a guardian
for an alleged incapacitated person (AIP).  The court evaluator acts as
"the eyes and ears of the court" and their work is crucial in determin-
ing the issues involved in a guardianship proceeding pursuant to Article
81 of the Mental Hygiene Law. The court evaluator interviews the AIP and
the petitioner, investigates the nature and extent of the AIP's alleged
incapacity, and ascertains the nature and value of the AIP's property.
The court evaluator will then submit a report to the court. If the peti-
tion is granted, the court evaluator is compensated from the funds of
the incapacitated person. If the petition is denied, dismissed or the
alleged incapacitated person dies before a determination is rendered by
the court, the court may order the compensation of the court evaluator
to be paid by either the petitioner, the alleged incapacitated person
(or their estate) or both in whatever proportions that the court, in its
discretion, determines is appropriate. Where the petition is granted and
the incapacitated person has insufficient assets to pay the court evalu-
ator, the court evaluator may never be compensated.

Court evaluators are essential appointees of the court in the assess-
ments required in these guardianship matters. In addition, the petition-
er who initially alerts the court to the AIP's possible need for assist-
ance, the court evaluator's investigation may alert the court to
extenuating circumstances that may require swift intervention in advance
of the statutorily mandated hearing.

The ability to grant reasonable compensation in these matters is impor-
tant to the recruitment and retention of competent individuals to
perform this work. This amendment to the statute grants the court the
discretion, in appropriate circumstances, to ensure that reasonable
compensation is paid to these individuals performing this important work
and allocated among the parties to the proceeding appropriately, at no
additional cost to the State. Current law allows this allocation only
where a petition is dismissed or denied. Even when a petition is grant-
ed, allocation of this cost may be very appropriate, particularly in low
or no asset cases, and where the cilirt evaluator's report and testimony
form a substantial part of the basis for the court's decision to appoint
a guardian. Importantly, the use of the word "may" in the proposed
amendment allows the court to utilize its discretion to ensure that the
law would not be applied in any way that chills the rights of potential
petitioners.

 
PRIOR LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This bill would take effect immediately and would also be applicable to
all proceedings where a determination of a petition for the appointment
of a guardian pursuant to Article 81 of the Mental Hygiene Law is pend-
ing.