Bill Text: NY A03461 | 2015-2016 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Provides for an appointment of a guardian for personal needs or property management; provides that the order of appointment shall identify the persons entitled to receive notice of the incapacitated person's death, funeral arrangements, receive notice of the incapacitated person's transfer to a medical facility and persons entitled to visit such person.
Spectrum: Partisan Bill (Democrat 13-0)
Status: (Passed) 2016-07-21 - signed chap.98 [A03461 Detail]
Download: New_York-2015-A03461-Introduced.html
Bill Title: Provides for an appointment of a guardian for personal needs or property management; provides that the order of appointment shall identify the persons entitled to receive notice of the incapacitated person's death, funeral arrangements, receive notice of the incapacitated person's transfer to a medical facility and persons entitled to visit such person.
Spectrum: Partisan Bill (Democrat 13-0)
Status: (Passed) 2016-07-21 - signed chap.98 [A03461 Detail]
Download: New_York-2015-A03461-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3461
2015-2016 Regular Sessions
I N A S S E M B L Y
January 23, 2015
___________
Introduced by M. of A. MAGNARELLI -- read once and referred to the
Committee on Judiciary
AN ACT to amend the mental hygiene law and the civil practice law and
rules, in relation to guardianship duties and visitation claims
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. subdivision (a) of section 81.20 of the mental hygiene law
2 is amended by adding a new paragraph 8 to read as follows:
3 8. A GUARDIAN SHALL INFORM THE RELATIVES, INCLUDING BUT NOT LIMITED TO
4 THE CHILDREN, OF AN ELDER OR DEPENDENT INCAPACITATED ADULT WHENEVER THEY
5 ARE ADMITTED TO A MEDICAL FACILITY FOR ACUTE CARE FOR A PERIOD OF THREE
6 DAYS OR MORE OR IN THE EVENT OF DEATH. IN THE CASE OF DEATH, THE GUARDI-
7 AN SHALL INFORM THE RELATIVES OF ANY FUNERAL ARRANGEMENTS AND THE
8 LOCATION OF THE INCAPACITATED PERSON'S FINAL RESTING PLACE.
9 S 2. The article heading of article 12 of the civil practice law and
10 rules, as amended by chapter 115 of the laws of 1981, is amended to read
11 as follows:
12 INFANTS, INCOMPETENTS [AND], CONSERVATEES
13 AND THE ELDERLY
14 S 3. The civil practice law and rules is amended by adding a new section
15 1212 to read as follows:
16 S 1212. ELDERLY VISITATION CLAIMS. (A) PETITION TO THE SUPREME COURT.
17 A PETITION MAY BE BROUGHT FOR A VISITATION ORDER TO ENJOIN A RESPONDENT
18 FROM KEEPING A PROPOSED VISITEE IN ISOLATION FROM CONTACT WITH THE PETI-
19 TIONER.
20 (B) DEFINITIONS. FOR THE PURPOSES OF THIS SECTION:
21 1. "ELDER" SHALL HAVE THE SAME MEANING AS PARAGRAPH (B) OF SUBDIVISION
22 ONE OF SECTION TWO HUNDRED FOURTEEN OF THE ELDER LAW.
23 2. "DEPENDENT ADULT" SHALL MEAN ANY PERSON BETWEEN THE AGES OF EIGH-
24 TEEN AND SIXTY WHO RESIDES IN THIS STATE AND WHO HAS PHYSICAL OR MENTAL
25 LIMITATIONS THAT RESTRICT HIS OR HER ABILITY TO CARRY OUT NORMAL ACTIV-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07225-01-5
A. 3461 2
1 ITIES OR TO PROTECT HIS OR HER RIGHTS, INCLUDING, BUT NOT LIMITED TO,
2 PERSONS WHO HAVE PHYSICAL OR DEVELOPMENTAL DISABILITIES, OR WHOSE PHYS-
3 ICAL OR MENTAL ABILITIES HAVE DIMINISHED BECAUSE OF AGE.
4 3. "ISOLATION" SHALL MEAN:
5 (I) ACTS INTENTIONALLY COMMITTED FOR THE PURPOSE OF PREVENTING, AND
6 THAT DO SERVE TO PREVENT, AN ELDER OR DEPENDENT ADULT FROM RECEIVING HIS
7 OR HER MAIL OR TELEPHONE CALLS.
8 (II) TELLING A CALLER OR PROSPECTIVE VISITOR THAT AN ELDER OR DEPEND-
9 ENT ADULT IS NOT PRESENT, OR DOES NOT WISH TO TALK WITH THE CALLER, OR
10 DOES NOT WISH TO MEET WITH THE VISITOR WHERE THE STATEMENT IS FALSE, IS
11 CONTRARY TO THE EXPRESS WISHES OF THE ELDER OR THE DEPENDENT ADULT,
12 WHETHER HE OR SHE IS COMPETENT OR NOT, AND IS MADE FOR THE PURPOSE OF
13 PREVENTING THE ELDER OR DEPENDENT ADULT FROM HAVING CONTACT WITH FAMILY,
14 FRIENDS, OR CONCERNED PERSONS.
15 (III) PHYSICAL RESTRAINT OF AN ELDER OR DEPENDENT ADULT, FOR THE
16 PURPOSE OF PREVENTING THE ELDER OR DEPENDENT ADULT FROM MEETING WITH
17 VISITORS.
18 4."PETITIONER" SHALL MEAN A PERSON WHO IS A RELATIVE IN THE FIRST
19 DEGREE OF THE PROPOSED VISITEE.
20 5. "PROPOSED VISITEE" SHALL MEAN THE ELDER OR DEPENDENT ADULT, WHO IS
21 UNDER THE CARE OR CUSTODY OF THE RESPONDENT, TO BE PROTECTED BY THE
22 VISITATION ORDER AND, IF THE COURT GRANTS THE PETITION, THE PROTECTED
23 PERSON.
24 6. "RESPONDENT" SHALL MEAN THE PERSON WHO IS ALLEGED TO BE ISOLATING
25 THE PROPOSED VISITEE, AND IF THE PETITION IS GRANTED, THE RESTRAINED
26 PERSON.
27 7. "VISITATION" SHALL MEAN ANY IN-PERSON MEETING BETWEEN A PROPOSED
28 VISITEE AND THE PETITIONER.
29 8. "VISITATION ORDER" SHALL MEAN AN ORDER ENJOINING A PARTY FROM KEEP-
30 ING THE PROPOSED VISITEE IN ISOLATION FROM CONTACT WITH THE PETITIONER
31 THAT IS ISSUED BY A COURT AFTER NOTICE AND HEARING.
32 (C) ORDER. 1. AN ORDER MAY BE ISSUED UNDER THIS SECTION TO RESTRAIN
33 THE RESPONDENT FOR THE PURPOSE OF PREVENTING A RECURRENCE OF ISOLATION
34 IF THE PETITIONER HAS SHOWN BY A PREPONDERANCE OF THE EVIDENCE, TO THE
35 SATISFACTION OF THE COURT, REASONABLE PROOF OF A PAST ACT OR ACTS OF
36 ISOLATION OF THE PROPOSED VISITEE FROM CONTACT WITH THE PETITIONER, AND
37 UPON A SHOWING THAT THE PROPOSED VISITEE DESIRES CONTACT WITH THE PETI-
38 TIONER OR THAT VISITATION IS IN THE BEST INTERESTS OF THE PROPOSED VISI-
39 TEE.
40 2. THE ORDER MAY SPECIFY THE FREQUENCY, TIME, PLACE, AND LOCATION OF
41 VISITATION.
42 3. IN DECIDING WHETHER VISITATION WITH THE PETITIONER IS IN THE BEST
43 INTEREST OF THE PROPOSED VISITEE THE COURT MAY CONSIDER WHETHER THE BEST
44 INTEREST OF THE PROPOSED VISITEE REQUIRES THAT ANY VISITATION BY THE
45 PETITIONER BE LIMITED TO SITUATIONS IN WHICH A THIRD PERSON, SPECIFIED
46 BY THE COURT, IS PRESENT, OR WHETHER VISITATION SHALL BE SUSPENDED OR
47 DENIED. THE PETITIONER, PROPOSED VISITEE, OR RESPONDENT MAY SUBMIT TO
48 THE COURT THE NAME OF A PERSON WHO MAY BE SUITABLE TO BE PRESENT DURING
49 VISITATION.
50 4. IN DECIDING WHETHER VISITATION WITH THE PETITIONER IS IN THE BEST
51 INTEREST OF THE PROPOSED VISITEE, THE COURT SHALL CONSIDER ANY PRIOR
52 PROTECTIVE ORDERS ISSUED AGAINST THE PETITIONER.
53 5. THE COURT SHALL NOT ISSUE AN ORDER UNLESS THE PROPOSED VISITEE HAS
54 EXPRESSED A DESIRE FOR VISITATION. THE COURT MAY APPOINT A COURT INVES-
55 TIGATOR TO DETERMINE WHETHER THE PROPOSED VISITEE HAS EXPRESSED A DESIRE
56 FOR VISITATION.
A. 3461 3
1 6. THE COURT SHALL ISSUE AN ORDER ONLY AFTER NOTICE AND A HEARING
2 UNDER THIS SECTION, AND THE COURT SHALL NOT ISSUE AN EX PARTE ORDER
3 UNDER THIS SECTION.
4 7. IN THE DISCRETION OF THE COURT, AN ORDER ISSUED AFTER NOTICE AND A
5 HEARING UNDER THIS SECTION MAY HAVE A DURATION OF NOT MORE THAN FIVE
6 YEARS, SUBJECT TO TERMINATION OR MODIFICATION BY FURTHER ORDER OF THE
7 COURT EITHER ON WRITTEN STIPULATION FILED WITH THE COURT OR ON THE
8 MOTION OF A PARTY. THESE ORDERS MAY BE RENEWED, UPON THE REQUEST OF A
9 PARTY, EITHER FOR FIVE YEARS OR PERMANENTLY, WITHOUT A SHOWING OF ANY
10 FURTHER ISOLATION SINCE THE ISSUANCE OF THE ORIGINAL ORDER, SUBJECT TO
11 TERMINATION OR MODIFICATION BY FURTHER ORDER OF THE COURT EITHER ON
12 WRITTEN STIPULATION FILED WITH THE COURT OR ON THE MOTION OF A PARTY.
13 THE REQUEST FOR RENEWAL MAY BE BROUGHT AT ANY TIME WITHIN THE THREE
14 MONTHS BEFORE THE EXPIRATION OF THE ORDERS. THE FAILURE TO STATE THE
15 EXPIRATION DATE ON THE FACE OF THE FORM CREATES AN ORDER WITH A DURATION
16 OF THREE YEARS FROM THE DATE OF ISSUANCE.
17 (D) REPRESENTATION/APPEARANCE. THE COURT MAY REQUIRE THE PROPOSED
18 VISITEE, OR THE PROPOSED VISITEE'S ATTORNEY TO APPEAR AT THE HEARING. IF
19 THE PROPOSED VISITEE DOES NOT HAVE AN ATTORNEY, THE COURT SHALL APPOINT
20 AN ATTORNEY TO REPRESENT THE PROPOSED VISITEE'S INTERESTS.
21 (E) THE COURT SHALL SCHEDULE AN EVIDENTIARY HEARING WITHIN SIXTY DAYS
22 FROM THE DATE THAT THE PETITION IS FILED. THE COURT MAY GRANT A CONTIN-
23 UANCE OF THE HEARING FOR GOOD CAUSE.
24 (F) THE RESPONDENT AND THE PROPOSED VISITEE SHALL EACH BE PERSONALLY
25 SERVED WITH A COPY OF THE PETITION FOR VISITATION ORDER AND NOTICE OF
26 THE HEARING AT LAST TWENTY-ONE DAYS BEFORE THE HEARING DATE.
27 (G) THE NOTICE OF THE HEARING SHALL NOTIFY THE PROPOSED VISITEE AND
28 THE RESPONDENT THAT FOLLOWING THE HEARING, THE COURT MAY MAKE ORDERS NOT
29 TO EXCEED FIVE YEARS FROM THE HEARING DATE. THE NOTICE OF THE HEARING
30 SHALL ALSO NOTIFY THE PROPOSED VISITEE WHETHER THE COURT REQUIRES THAT
31 THE PROPOSED VISITEE APPEAR AT THE HEARING, AND HOW TO REQUEST THAT
32 COUNSEL BE APPOINTED IF THE PROPOSED VISITEE IS UNABLE TO RETAIN COUN-
33 SEL.
34 (H) THE RESPONDENT MAY FILE AND SERVE A RESPONSE THAT EXPLAINS OR
35 DENIES THE ALLEGED ISOLATION AT LEAST TEN DAYS BEFORE THE HEARING DATE.
36 (I) THE COURT MAY, IN ITS DISCRETION, AWARD THE PREVAILING PARTY IN
37 ANY ACTION BROUGHT UNDER THIS SECTION COURT COSTS AND ATTORNEY'S FEES,
38 IF ANY. IN NO EVENT, SHALL THE PROPOSED VISITEE BY REQUIRED TO PAY THE
39 COURT COSTS OR ATTORNEY'S FEES OF EITHER THE PREVAILING OR NON-PREVAIL-
40 ING PARTY.
41 S 4. This act shall take effect immediately.
