in a memorandum as follows: The court misses the point. It decides a secondary issue of which entity pays, the City or the State (in either case it is the taxpayer), and ignores the solution which the Legislature has made available.
The petitioner hospital commenced the instant guardianship proceeding pursuant to article 81 of the Mental Hygiene Law to place, involuntarily, the respondent, an indigent alleged incapacitated person, among other things, in a nursing home.
The Supreme Court designated the Mental Hygiene Legal Service of this Judicial Department as the court evaluator required by Mental Hygiene Law § 81.09 (a). Such evaluator did not have to be a lawyer, but could have been any person with the necessary skills, including a social worker or a nurse (Mental Hygiene Law § 81.09 [b] [1]).
The Supreme Court determined that, in addition to such evaluator, counsel should also be assigned for respondent and there’s the rub. There is no provision for funding in the law and so we have this dispute about which entity should pay and can it be constitutionally mandated.
However, Mental Hygiene Law § 81.10 (g) provides: "If the court appoints counsel under this section, the court may dispense with the appointment of a court evaluator or may vacate or suspend the appointment of a previously appointed court evaluator.”
Accordingly, it was an abuse of discretion to create a divisive issue when the solution was plain to see. With the Mental Hygiene Legal Service as her counsel, respondent would be well protected while the taxpayers would have one less funding obligation.