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[T] In re Application of D.G.9/14/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
In this proceeding brought pursuant to Article 81 of the Mental Hygiene Law petitioner's counsel sought discharge of the Court Evaluator and thereafter petitioner sought to discharge her counsel. This decision explains the Court's rulings on these applications.
In December of 2003, the Alleged Incapacitated Person, (hereinafter "AIP"), age 56, suffered a major stroke. The half sister of the AIP, the petitioner herein, was appointed temporary guardian pending the hearing. Petitioner also sought to be appointed permanent guardian. In her petition for appointment of a guardian neither petitioner nor her counsel revealed that there was a potential medical malpractice action or that a Notice of Claim against the New York City Health and Hospitals Corporation had in fact been filed .
In her report investigating the appointment of a guardian for the AIP , the Court Evaluator, pursuant to her duties under Article 81 of the Mental Hygiene Law, observed the AIP, the aunt and cousin of the AIP, and spoke with another half sister of the AIP. The Court Evaluator, spoke to the petitioner and proposed guardian, on several occasions, in addition to meeting with her once at the Center for Nursing and Rehabilitation in Brooklyn, where the AIP currently resides. In attendance at this meeting was an occupational therapist and the AIP's aunt. In her report, the Court Evaluator raised several cautions and concerns regarding the appointment of petitioner as guardian.
In court proceedings on August 4, 2004, counsel for the proposed guardian, made an application to the court to strike the Court Evaluator's report, and for the Court Evaluator to recuse herself or for an order for her removal from the case, due to the fact that the Court Evaluator met with petitioner and observed her without counsel being present. The court denied petitioner counsel's application for the following reasons and notes the irony of counsel's application against the backdrop of his law firm's actions regarding the potential and real conflicts of interest in the representation of the petitioner herein.
The court notes that the Court Evaluator is mandated under Article 81 to interview the petitioner. Mental Hygiene Law §81.09 (b) provides in pertinent part that a Court Evaluator may be anyone from an office of court administration list that has "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". A Court Evaluator may be "an attorney-at-law, physician, psychologist, accountant, social worker , or nurse." The statute, however, expressedly does not limit those who may be appointed as a Court Evaluator to these specific occupations. M.H.L. §81.09(b) then continues by articulating the various duties of the Court Evaluator including "interviewing the petitioner."
The Court Evaluator when appointed as such, serves not as an attorney even if she happens to be, but as an arm of the Court. The Court Evaluator is the eyes and ears of the Court in conducting an independent investigation in the best interests of the Alleged Incapacitated Person.
Counsel for petitioner argues that by not being present when the Court Evaluator spoke to his client, he was unable to serve as a "buffer" between the Court Evaluator and his client. Petitioner's counsel argued that the Court Evaluator is an adversarial party to his client. The Law Revision Commission Comments following §81.10 explain that, "The role of Court Evaluator is to act to provide an independent asse
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