Writing Court Evaluator Reports in Adult Guardianship Cases
Professors Joseph Rosenberg and Wendy Bach
Students in the Elder Law Clinic, supervised by Professors Wendy Bach and Joe Rosenberg, have a challenging writing assignment when the clinic is appointed as "Court Evaluator" in adult guardianship cases under Article 81 of the Mental Hygiene Law. These cases usually involve an older adult who is alleged to be incapacitated to such an extent that she is unable to make decisions about finances, health care, living arrangements, and other personal needs. The appointment of a guardian implicates liberty, privacy, and due process rights under the Constitution, and accordingly, a hearing is held in every case. The court appoints either a Court Evaluator or an attorney for the person alleged to be incapacitated, and often both. The role of the Court Evaluator is to be the "eyes and ears" of the court, conduct a thorough investigation, and, in a written report, analyze whether the facts justify the appointment of a guardian under the law and recommend to the judge how the case should be decided.
Students have approximately 28 days to write the Court Evaluator report, which is anywhere from 15-35 pages in length. Students develop a written plan for producing the report and must organize complex facts obtained from interviews with multiple people and from review of documents into a clear and concise narrative that also discusses and applies the statute and relevant case law. As a writing assignment, the Court Evaluator report involves numerous choices about structure, detail, narrative, creativity, legal analysis, editing, revising, and collaboration! The report includes an often compelling and moving narrative about the life of the person, her family, and the circumstances that culminated in the guardianship proceeding. The legal analysis requires a close reading of the statute and relevant cases to determine whether a guardian should be appointed and, if so, what powers should be granted. This mix of factual description and legal analysis has to be organized within a structure that complies with the statute and will enable the judge to obtain a complete understanding of the case, even if the judge is reading the report shortly before the hearing.
In order to produce a clear, concise, accessible, and thorough Court Evaluator report, students have to begin writing from the beginning of their investigation and make decisions about structure and content as facts are developed. After producing multiple drafts and receiving ongoing feedback in this compressed time frame, the clinic submits the final report a day or two prior to the hearing and the students testify as Court Evaluator at the hearing. Our written reports have been relied upon by judges to dismiss cases without appointing a guardian, limit the powers of a guardian, and require that an appointed guardian honor the specific wishes of the person who is incapacitated about living arrangements, health care, and other personal matters. These reports provide students with a great opportunity to integrate fact and law and write with precision and creativity.