§ 81.09 Appointment of court evaluator.

(a) At the time of the issuance of the order to show cause, the court
shall appoint a court evaluator.

(b) 1. the court may appoint as court evaluator any person including,
but not limited to, the mental hygiene legal service in the judicial
department where the person resides, a not-for-profit corporation, an
attorney-at-law, physician, psychologist, accountant, social worker, or
nurse, with knowledge of property management, personal care skills, the
problems associated with disabilities, and the private and public
resources available for the type of limitations the person is alleged to
have. The name of the court evaluator shall be drawn from a list
maintained by the office of court administration;

2. if the court appoints the mental hygiene legal service as the
evaluator and upon investigation in accordance with section 81.10 of
this article it appears to the mental hygiene legal service that the
mental hygiene legal service represents the person alleged to be
incapacitated as counsel, or that counsel should otherwise be appointed
in accordance with section 81.10 of this article for the person alleged
to be incapacitated, the mental hygiene legal service shall so report to
the court. The mental hygiene legal service shall be relieved of its
appointment as court evaluator whenever the mental hygiene legal service
represents as counsel, or is assigned to represent as counsel, the
person alleged to be incapacitated.

(c) The duties of the court evaluator shall include the following:

1. meeting, interviewing, and consulting with the person alleged to be
incapacitated regarding the proceeding.

2. determining whether the alleged incapacitated person understands
English or only another language, and explaining to the person alleged
to be incapacitated, in a manner which the person can reasonably be
expected to understand, the nature and possible consequences of the
proceeding, the general powers and duties of a guardian, available
resources, and the rights to which the person is entitled, including the
right to counsel.

3. determining whether the person alleged to be incapacitated wishes
legal counsel of his or her own choice to be appointed and otherwise
evaluating whether legal counsel should be appointed in accordance with
section 81.10 of this article.

4. interviewing the petitioner, or, if the petitioner is a facility or
government agency, a person within the facility or agency fully familiar
with the person's condition, affairs and situation.

5. investigating and making a written report and recommendations to
the court; the report and recommendations shall include the court
evaluator's personal observations as to the person alleged to be
incapacitated and his or her condition, affairs and situation, as well
as information in response to the following questions:

(i) does the person alleged to be incapacitated agree to the
appointment of the proposed guardian and to the powers proposed for the
guardian;

(ii) does the person wish legal counsel of his or her own choice to be
appointed or is the appointment of counsel in accordance with section
81.10 of this article otherwise appropriate;

(iii) can the person alleged to be incapacitated come to the
courthouse for the hearing;

(iv) if the person alleged to be incapacitated cannot come to the
courthouse, is the person completely unable to participate in the
hearing;

(v) if the person alleged to be incapacitated cannot come to the
courthouse, would any meaningful participation result from the person's
presence at the hearing;

(vi) are available resources sufficient and reliable to provide for
personal needs or property management without the appointment of a
guardian;

(vii) how is the person alleged to be incapacitated functioning with
respect to the activities of daily living and what is the prognosis and
reversibility of any physical and mental disabilities, alcoholism or
substance dependence? The response to this question shall be based on
the evaluator's own assessment of the person alleged to be incapacitated
to the extent possible, and where necessary, on the examination of
assessments by third parties, including records of medical,
psychological and/or psychiatric examinations obtained pursuant to
subdivision (d) of this section. As part of this review, the court
evaluator shall consider the diagnostic and assessment procedures used
to determine the prognosis and reversibility of any disability and the
necessity, efficacy, and dose of each prescribed medication;

(viii) what is the person's understanding and appreciation of the
nature and consequences of any inability to manage the activities of
daily living;

(ix) what is the approximate value and nature of the financial
resources of the person alleged to be incapacitated;

(x) what are the person's preferences, wishes, and values with regard
to managing the activities of daily living;

(xi) has the person alleged to be incapacitated made any appointment
or delegation pursuant to section 5-1501, 5-1505, or 5-1506 of the
general obligations law, section two thousand nine hundred sixty-five or
two thousand nine hundred eighty-one of the public health law, or a
living will;

(xii) what would be the least restrictive form of intervention
consistent with the person's functional level and the powers proposed
for the guardian;

(xiii) what assistance is necessary for those who are financially
dependent upon the person alleged to be incapacitated;

(xiv) is the choice of proposed guardian appropriate, including a
guardian nominated by the allegedly incapacitated person pursuant to
section 81.17 or subdivision (c) of section 81.19 of this article; and
what steps has the proposed guardian taken or does the proposed guardian
intend to take to identify and meet the current and emerging needs of
the person alleged to be incapacitated unless that information has been
provided to the court by the local department of social services when
the proposed guardian is a community guardian program operating pursuant
to the provisions of title three of article nine-B of the social
services law;

(xv) what potential conflicts of interest, if any, exist between or
among family members and/or other interested parties regarding the
proposed guardian or the proposed relief;

(xvi) what potential conflicts of interest, if any, exist involving
the person alleged to be incapacitated, the petitioner, and the proposed
guardian; and

(xvii) are there any additional persons who should be given notice and
an opportunity to be heard.

In addition, the report and recommendations shall include any
information required under subdivision (e) of this section, and any
additional information required by the court.

6. interviewing or consulting with professionals having specialized
knowledge in the area of the person's alleged incapacity including but
not limited to developmental disabilities, alcohol and substance abuse,
and geriatrics.

7. retaining an independent medical expert where the court finds it is
appropriate, the cost of which is to be charged to the estate of the
allegedly incapacitated person unless the person is indigent.

8. conducting any other investigations or making recommendations with
respect to other subjects as the court deems appropriate.

9. attending all court proceedings and conferences.

(d) The court evaluator may apply to the court for permission to
inspect records of medical, psychological and/or psychiatric
examinations of the person alleged to be incapacitated; except as
otherwise provided by federal or state law, if the court determines that
such records are likely to contain information which will assist the
court evaluator in completing his or her report to the court, the court
may order the disclosure of such records to the court evaluator,
notwithstanding the physician/patient privilege, the
psychologist/patient privilege, or the social worker/client privilege as
set forth in sections four thousand five hundred four, four thousand
five hundred seven, and four thousand five hundred eight of the civil
practice law and rules; if the court orders that such records be
disclosed to the court evaluator, the court may, upon the court's own
motion, at the request of the court evaluator, or upon the application
of counsel for the person alleged to be incapacitated, or the
petitioner, also direct such further disclosure of such records as the
court deems proper.

(e) The court evaluator shall have the authority to take the steps
necessary to preserve the property of the person alleged to be
incapacitated pending the hearing in the event the property is in danger
of waste, misappropriation, or loss; if the court evaluator exercises
authority under this subdivision, the court evaluator shall immediately
advise the court of the actions taken and include in his or her report
to the court an explanation of the actions the court evaluator has taken
and the reasons for such actions.

(f) When judgment grants a petition, the court may award a reasonable
compensation to a court evaluator, including the mental hygiene legal
service, payable by the estate of the allegedly incapacitated person.
When a judgment denies or dismisses a petition, the court may award a
reasonable allowance to a court evaluator, including the mental hygiene
legal service, payable by the petitioner or by the person alleged to be
incapacitated, or both in such proportions as the court may deem just.
When the person alleged to be incapacitated dies before the
determination is made in the proceeding, the court may award a
reasonable allowance to a court evaluator, payable by the petitioner or
by the estate of the decedent, or by both in such proportions as the
court may deem just.