Bill Text: NY S04722 | 2019-2020 | General Assembly | Introduced

---

Bill Title: Requires the petitioner for appointment as the guardian for an incapacitated person to identify all other persons who may be able to manage the affairs of such incapacitated person; prohibits appointment solely for the purposes of bill collection or resolving a bill collection dispute.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES [S04722 Detail]

Download: New_York-2019-S04722-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________
                                          4722
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 22, 2019
                                       ___________
        Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
          printed to be committed to the Committee on Mental Health and Develop-
          mental Disabilities
        AN ACT to amend the mental hygiene law, in relation to  requiring  peti-
          tioners  for  appointment  of a guardian to identify other persons who
          may be able to manage the affairs of an incapacitated person
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section 1. Subdivision (e) of section 81.03 of the mental hygiene law,
     2  as  amended  by  chapter  438 of the laws of 2004, is amended to read as
     3  follows:
     4    (e) "available resources" means resources such as, but not limited to,
     5  all persons identified in subparagraphs (i) through  (iv)  of  paragraph
     6  one  of subdivision (g) of section 81.07 of this article, visiting nurs-
     7  es, homemakers, home health  aides,  adult  day  care  and  multipurpose
     8  senior citizen centers, powers of attorney, health care proxies, trusts,
     9  representative and protective payees, and residential care facilities.
    10    §  2.  Paragraph  7  of subdivision (a) of section 81.06 of the mental
    11  hygiene law, as amended by chapter 438 of the laws of 2004,  is  amended
    12  to read as follows:
    13    7. the chief executive officer, or the designee of the chief executive
    14  officer,  of  a facility in which the person alleged to be incapacitated
    15  is a patient or resident, except  for  where  the  petition  is  brought
    16  primarily for purposes of bill collection or resolving a bill collection
    17  dispute.   Provided, however, where there is no other legally authorized
    18  or otherwise available resource, the chief executive officer, or  desig-
    19  nee  of  the chief executive officer, of such facility described in this
    20  article may file a petition under this article where a guardian is need-
    21  ed to apply for or engage in planning necessary to establish eligibility
    22  for medical assistance as provided under title eleven of article five of
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00873-01-9
        S. 4722                             2
     1  the social services law for the benefit of  the  person  alleged  to  be
     2  incapacitated.
     3    §  3.  Subparagraph (iii) of paragraph 1 of subdivision (g) of section
     4  81.07 of the mental hygiene law, as amended by chapter 438 of  the  laws
     5  of 2004, is amended to read as follows:
     6    (iii)  any  person  or persons designated by the alleged incapacitated
     7  person with authority pursuant to [sections 5-1501, 5-1505, and  5-1506]
     8  title  fifteen  of  article  five  of  the  general  obligations law, or
     9  sections two thousand nine hundred [five] sixty-five  and  two  thousand
    10  nine  hundred eighty-one of the public health law, if known to the peti-
    11  tioner; and
    12    § 4. Paragraph 14 of subdivision (a) of section 81.08  of  the  mental
    13  hygiene  law, as added by chapter 698 of the laws of 1992, is amended to
    14  read as follows:
    15    14. the available resources, if any, that have been considered by  the
    16  petitioner,  the  steps  taken  to identify available resources, and the
    17  petitioner's opinion as to [their sufficiency and reliability] why  such
    18  resources  are  not  sufficient  or  reliable enough to meet the alleged
    19  incapacitated person's needs without the appointment of a guardian;
    20    § 5. Paragraph 15 of subdivision (a) of section 81.08  of  the  mental
    21  hygiene  law is renumbered paragraph 18, and three new paragraphs 15, 16
    22  and 17 are added to read as follows:
    23    15. for all available resources  considered  by  the  petitioner,  the
    24  name,  address,  telephone  number along with any other contact informa-
    25  tion, relationship to the alleged incapacitated person and any documents
    26  known to the petitioner that grant the available resource legal authori-
    27  ty to manage the personal,  medical  and/or  financial  affairs  of  the
    28  alleged incapacitated person;
    29    16.  if  the petitioner seeks to revoke any lawfully executed appoint-
    30  ment or delegation made by the alleged incapacitated person pursuant  to
    31  title  fifteen  of  article five of the general obligations law, section
    32  twenty-nine hundred sixty-five or twenty-nine hundred eighty-one of  the
    33  public  health  law,  or  any  living will, the petition shall set forth
    34  specific reasons for the revocation;
    35    17. an affirmative statement that the petition is not brought primari-
    36  ly for the purpose of bill collection or  resolving  a  bill  collection
    37  dispute;
    38    §  6.  Subparagraph  (xi) of paragraph 5 of subdivision (c) of section
    39  81.09 of the mental hygiene law, as amended by chapter 438 of  the  laws
    40  of 2004, is amended to read as follows:
    41    (xi)  has  the person alleged to be incapacitated made any appointment
    42  or delegation pursuant to [section  5-1501,  5-1505,  or  5-1506]  title
    43  fifteen  of  article  five  of  the general obligations law, section two
    44  thousand nine hundred sixty-five or two thousand nine hundred eighty-one
    45  of the public health law, or a living will;
    46    § 7.  Paragraph 1 of subdivision (d) of section 81.19  of  the  mental
    47  hygiene  law, as added by chapter 698 of the laws of 1992, is amended to
    48  read as follows:
    49    1. any appointment or delegation made by  the  person  alleged  to  be
    50  incapacitated  in  accordance  with  the  provisions of [section 5-1501,
    51  5-1601 or 5-1602] title fifteen of article five  of  the  general  obli-
    52  gations  law  and  sections two thousand nine hundred sixty-five and two
    53  thousand nine hundred eighty-one of the public health law;
    54    § 8. The opening paragraph of subdivision (e) of section 81.19 of  the
    55  mental  hygiene  law,  as  added  by chapter 698 of the laws of 1992, is
    56  amended to read as follows:
        S. 4722                             3
     1    [Unless the court finds that no other person or corporation is  avail-
     2  able  or  willing  to act as guardian, or to provide needed services for
     3  the incapacitated person, the] The following persons or corporations may
     4  not serve as guardian:
     5    §  9.  Paragraph  2  of subdivision (b) of section 81.22 of the mental
     6  hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
     7  read as follows:
     8    2.  revoke  any  appointment  or  delegation made by the incapacitated
     9  person pursuant to [sections 5-1501, 5-1601 and 5-1602] title fifteen of
    10  article five of the general obligations law, sections two thousand  nine
    11  hundred  sixty-five  and  two  thousand  nine  hundred eighty-one of the
    12  public health law, or any living will.
    13    § 10. Subdivision (d) of section 81.29 of the mental hygiene  law,  as
    14  amended  by  chapter  176  of  the  laws  of 2008, is amended to read as
    15  follows:
    16    (d) If the court determines  that  the  person  is  incapacitated  and
    17  appoints  a  guardian, the court may modify, amend, or revoke any previ-
    18  ously executed appointment, power, or delegation under [section  5-1501,
    19  5-1505,  or  5-1506]  title fifteen of article five of the general obli-
    20  gations law or section two  thousand  nine  hundred  sixty-five  of  the
    21  public  health  law,  or section two thousand nine hundred eighty-one of
    22  the public health law notwithstanding section two thousand nine  hundred
    23  ninety-two  of  the  public  health law, or any contract, conveyance, or
    24  disposition during lifetime or to take effect upon death,  made  by  the
    25  incapacitated  person  prior  to  the appointment of the guardian if the
    26  court finds that the previously executed appointment, power, delegation,
    27  contract, conveyance, or disposition during lifetime or to  take  effect
    28  upon  death, was made while the person was incapacitated or if the court
    29  determines that there has been a breach of fiduciary duty by the  previ-
    30  ously  appointed  agent. In such event, the court shall require that the
    31  agent account to the guardian. The court shall not, however,  invalidate
    32  or  revoke  a  will  or  a codicil of an incapacitated person during the
    33  lifetime of such person.
    34    § 11. This act shall take effect on  the  one  hundred  eightieth  day
    35  after  it shall have become a law, provided that, effective immediately,
    36  any rules and regulations necessary to implement the provisions of  this
    37  act on its effective date are authorized and directed to be completed on
    38  or before such date.