Bill Text: NY S07132 | 2015-2016 | General Assembly | Amended
Bill Title: Relates to guardianship of people who are intellectually disabled and people who are developmentally disabled.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2016-07-21 - SIGNED CHAP.198 [S07132 Detail]
Download: New_York-2015-S07132-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7132--A Cal. No. 793 IN SENATE March 30, 2016 ___________ Introduced by Sen. ORTT -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the surrogate's court procedure act, in relation to people with intellectual disabilities The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The article heading of article 17-A of the surrogate's 2 court procedure act, as added by chapter 675 of the laws of 1989, is 3 amended to read as follows: 4 GUARDIANS OF [MENTALLY RETARDED] 5 PERSONS WHO ARE INTELLECTUALLY DISABLED AND 6 DEVELOPMENTALLY DISABLED [PERSONS] 7 § 2. Section 1750 of the surrogate's court procedure act, as amended 8 by chapter 500 of the laws of 2002, is amended to read as follows: 9 § 1750. Guardianship of [mentally retarded] persons who are intellectu- 10 ally disabled 11 When it shall appear to the satisfaction of the court that a person is 12 a [mentally retarded] person who is intellectually disabled, the court 13 is authorized to appoint a guardian of the person or of the property or 14 of both if such appointment of a guardian or guardians is in the best 15 interest of the [mentally retarded] person who is intellectually disa- 16 bled. Such appointment shall be made pursuant to the provisions of this 17 article, provided however that the provisions of section seventeen 18 hundred fifty-a of this article shall not apply to the appointment of a 19 guardian or guardians of a [mentally retarded] person who is intellectu- 20 ally disabled. 21 1. For the purposes of this article, a [mentally retarded] person who 22 is intellectually disabled is a person who has been certified by one 23 licensed physician and one licensed psychologist, or by two licensed 24 physicians at least one of whom is familiar with or has professional 25 knowledge in the care and treatment of persons with [mental retardation] EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04196-02-6S. 7132--A 2 1 an intellectual disability, having qualifications to make such certif- 2 ication, as being incapable to manage him or herself and/or his or her 3 affairs by reason of [mental retardation] intellectual disability and 4 that such condition is permanent in nature or likely to continue indefi- 5 nitely. 6 2. Every such certification pursuant to subdivision one of this 7 section, made on or after the effective date of this subdivision, shall 8 include a specific determination by such physician and psychologist, or 9 by such physicians, as to whether the [mentally retarded] person who is 10 intellectually disabled has the capacity to make health care decisions, 11 as defined by subdivision three of section twenty-nine hundred eighty of 12 the public health law, for himself or herself. A determination that the 13 [mentally retarded] person who is intellectually disabled has the capac- 14 ity to make health care decisions shall not preclude the appointment of 15 a guardian pursuant to this section to make other decisions on behalf of 16 the [mentally retarded] person who is intellectually disabled. The 17 absence of this determination in the case of guardians appointed prior 18 to the effective date of this subdivision shall not preclude such guard- 19 ians from making health care decisions. 20 § 3. Section 1750-a of the surrogate's court procedure act, as amended 21 by chapter 744 of the laws of 2005, is amended to read as follows: 22 § 1750-a. Guardianship of persons who are developmentally disabled 23 [persons] 24 1. When it shall appear to the satisfaction of the court that a person 25 is a person who is developmentally disabled [person], the court is 26 authorized to appoint a guardian of the person or of the property or of 27 both if such appointment of a guardian or guardians is in the best 28 interest of the person who is developmentally disabled [person]. Such 29 appointments shall be made pursuant to the provisions of this article, 30 provided however that the provisions of section seventeen hundred fifty 31 of this article shall not apply to the appointment of a guardian or 32 guardians of a person who is developmentally disabled [person]. For the 33 purposes of this article, a person who is developmentally disabled 34 [person] is a person who has been certified by one licensed physician 35 and one licensed psychologist, or by two licensed physicians at least 36 one of whom is familiar with or has professional knowledge in the care 37 and treatment of persons with developmental disabilities, having quali- 38 fications to make such certification, as having an impaired ability to 39 understand and appreciate the nature and consequences of decisions which 40 result in such person being incapable of managing himself or herself 41 and/or his or her affairs by reason of developmental disability and that 42 such condition is permanent in nature or likely to continue indefinite- 43 ly, and whose disability: 44 (a) is attributable to cerebral palsy, epilepsy, neurological impair- 45 ment, autism or traumatic head injury; 46 (b) is attributable to any other condition of a person found to be 47 closely related to [mental retardation] intellectual disability because 48 such condition results in similar impairment of general intellectual 49 functioning or adaptive behavior to that of [mentally retarded] persons 50 with intellectual disabilities; or 51 (c) is attributable to dyslexia resulting from a disability described 52 in subdivision one or two of this section or from [mental retardation] 53 intellectual disability; and 54 (d) originates before such person attains age twenty-two, provided, 55 however, that no such age of origination shall apply for the purposes of 56 this article to a person with traumatic head injury.S. 7132--A 3 1 2. Notwithstanding any provision of law to the contrary, for the 2 purposes of subdivision two of section seventeen hundred fifty and 3 section seventeen hundred fifty-b of this article, "a person [with4mental retardation] who is intellectually disabled and his or her guard- 5 ian" shall also mean a person and his or her guardian appointed pursuant 6 to this section; provided that such person has been certified by the 7 physicians and/or psychologists, specified in subdivision one of this 8 section, as (i) having [mental retardation] an intellectual disability, 9 or (ii) having a developmental disability, as defined in section 1.03 of 10 the mental hygiene law, which (A) includes [mental retardation] intel- 11 lectual disability, or (B) results in a similar impairment of general 12 intellectual functioning or adaptive behavior so that such person is 13 incapable of managing himself or herself, and/or his or her affairs by 14 reason of such developmental disability. 15 § 4. Section 1750-b of the surrogate's court procedure act, as added 16 by chapter 500 of the laws of 2002, subdivision 1 as amended by chapter 17 105 of the laws of 2007, the opening paragraph, paragraphs (a) and (b) 18 of subdivision 1, and the opening paragraph of subdivision 4 as amended 19 by chapter 8 of the laws of 2010, subparagraph (i) of paragraph (a) and 20 clause A of subparagraph (i) of paragraph (e) of subdivision 4 as 21 amended by section 18 of part J of chapter 56 of the laws of 2012, and 22 paragraph (d) of subdivision 5 as added by chapter 262 of the laws of 23 2008, is amended to read as follows: 24 § 1750-b. Health care decisions for [mentally retarded] persons who are 25 intellectually disabled 26 1. Scope of authority. Unless specifically prohibited by the court 27 after consideration of the determination, if any, regarding a [mentally28retarded person's] person who is intellectually disabled's capacity to 29 make health care decisions, which is required by section seventeen 30 hundred fifty of this article, the guardian of such person appointed 31 pursuant to section seventeen hundred fifty of this article shall have 32 the authority to make any and all health care decisions, as defined by 33 subdivision six of section twenty-nine hundred eighty of the public 34 health law, on behalf of the [mentally retarded] person who is intellec- 35 tually disabled that such person could make if such person had capacity. 36 Such decisions may include decisions to withhold or withdraw life-sus- 37 taining treatment. For purposes of this section, "life-sustaining treat- 38 ment" means medical treatment, including cardiopulmonary resuscitation 39 and nutrition and hydration provided by means of medical treatment, 40 which is sustaining life functions and without which, according to 41 reasonable medical judgment, the patient will die within a relatively 42 short time period. Cardiopulmonary resuscitation is presumed to be life- 43 sustaining treatment without the necessity of a medical judgment by an 44 attending physician. The provisions of this article are not intended to 45 permit or promote suicide, assisted suicide or euthanasia; accordingly, 46 nothing in this section shall be construed to permit a guardian to 47 consent to any act or omission to which the [mentally retarded] person 48 who is intellectually disabled could not consent if such person had 49 capacity. 50 (a) For the purposes of making a decision to withhold or withdraw 51 life-sustaining treatment pursuant to this section, in the case of a 52 person for whom no guardian has been appointed pursuant to section 53 seventeen hundred fifty or seventeen hundred fifty-a of this article, a 54 "guardian" shall also mean a family member of a person who (i) has 55 [mental retardation] intellectual disability, or (ii) has a develop- 56 mental disability, as defined in section 1.03 of the mental hygiene law,S. 7132--A 4 1 which (A) includes [mental retardation] intellectual disability, or (B) 2 results in a similar impairment of general intellectual functioning or 3 adaptive behavior so that such person is incapable of managing himself 4 or herself, and/or his or her affairs by reason of such developmental 5 disability. Qualified family members shall be included in a prioritized 6 list of said family members pursuant to regulations established by the 7 commissioner of [mental retardation and] the office for people with 8 developmental disabilities. Such family members must have a significant 9 and ongoing involvement in a person's life so as to have sufficient 10 knowledge of their needs and, when reasonably known or ascertainable, 11 the person's wishes, including moral and religious beliefs. In the case 12 of a person who was a resident of the former Willowbrook state school on 13 March seventeenth, nineteen hundred seventy-two and those individuals 14 who were in community care status on that date and subsequently returned 15 to Willowbrook or a related facility, who are fully represented by the 16 consumer advisory board and who have no guardians appointed pursuant to 17 this article or have no qualified family members to make such a deci- 18 sion, then a "guardian" shall also mean the Willowbrook consumer advi- 19 sory board. A decision of such family member or the Willowbrook consumer 20 advisory board to withhold or withdraw life-sustaining treatment shall 21 be subject to all of the protections, procedures and safeguards which 22 apply to the decision of a guardian to withhold or withdraw life-sus- 23 taining treatment pursuant to this section. 24 In the case of a person for whom no guardian has been appointed pursu- 25 ant to this article or for whom there is no qualified family member or 26 the Willowbrook consumer advisory board available to make such a deci- 27 sion, a "guardian" shall also mean, notwithstanding the definitions in 28 section 80.03 of the mental hygiene law, a surrogate decision-making 29 committee, as defined in article eighty of the mental hygiene law. All 30 declarations and procedures, including expedited procedures, to comply 31 with this section shall be established by regulations promulgated by the 32 commission on quality of care and advocacy for persons with disabili- 33 ties. 34 (b) Regulations establishing the prioritized list of qualified family 35 members required by paragraph (a) of this subdivision shall be developed 36 by the commissioner of [mental retardation and] the office for people 37 with developmental disabilities in conjunction with parents, advocates 38 and family members of persons who are [mentally retarded] intellectually 39 disabled. Regulations to implement the authority of the Willowbrook 40 consumer advisory board pursuant to paragraph (a) of this subdivision 41 may be promulgated by the commissioner of the office [of mental retarda-42tion and] for people with developmental disabilities with advice from 43 the Willowbrook consumer advisory board. 44 (c) Notwithstanding any provision of law to the contrary, the formal 45 determinations required pursuant to section seventeen hundred fifty of 46 this article shall only apply to guardians appointed pursuant to section 47 seventeen hundred fifty or seventeen hundred fifty-a of this article. 48 2. Decision-making standard. (a) The guardian shall base all advocacy 49 and health care decision-making solely and exclusively on the best 50 interests of the [mentally retarded] person who is intellectually disa- 51 bled and, when reasonably known or ascertainable with reasonable dili- 52 gence, on the [mentally retarded person's] person who is intellectually 53 disabled's wishes, including moral and religious beliefs. 54 (b) An assessment of the [mentally retarded person's] person who is 55 intellectually disabled's best interests shall include consideration of: 56 (i) the dignity and uniqueness of every person;S. 7132--A 5 1 (ii) the preservation, improvement or restoration of the [mentally2retarded person's] person who is intellectually disabled's health; 3 (iii) the relief of the [mentally retarded person's] person who is 4 intellectually disabled's suffering by means of palliative care and pain 5 management; 6 (iv) the unique nature of artificially provided nutrition or 7 hydration, and the effect it may have on the [mentally retarded] person 8 who is intellectually disabled; and 9 (v) the entire medical condition of the person. 10 (c) No health care decision shall be influenced in any way by: 11 (i) a presumption that persons [with mental retardation] who are 12 intellectually disabled are not entitled to the full and equal rights, 13 equal protection, respect, medical care and dignity afforded to persons 14 without [mental retardation] an intellectual disability or a develop- 15 mental [disabilities] disability; or 16 (ii) financial considerations of the guardian, as such considerations 17 affect the guardian, a health care provider or any other party. 18 3. Right to receive information. Subject to the provisions of sections 19 33.13 and 33.16 of the mental hygiene law, the guardian shall have the 20 right to receive all medical information and medical and clinical 21 records necessary to make informed decisions regarding the [mentally22retarded person's] person who is intellectually disabled's health care. 23 4. Life-sustaining treatment. The guardian shall have the affirmative 24 obligation to advocate for the full and efficacious provision of health 25 care, including life-sustaining treatment. In the event that a guardian 26 makes a decision to withdraw or withhold life-sustaining treatment from 27 a [mentally retarded] person who is intellectually disabled: 28 (a) The attending physician, as defined in subdivision two of section 29 twenty-nine hundred eighty of the public health law, must confirm to a 30 reasonable degree of medical certainty that the [mentally retarded] 31 person who is intellectually disabled lacks capacity to make health care 32 decisions. The determination thereof shall be included in the [mentally33retarded person's] person who is intellectually disabled's medical 34 record, and shall contain such attending physician's opinion regarding 35 the cause and nature of the [mentally retarded person's] person who is 36 intellectually disabled's incapacity as well as its extent and probable 37 duration. The attending physician who makes the confirmation shall 38 consult with another physician, or a licensed psychologist, to further 39 confirm the [mentally retarded person's] person who is intellectually 40 disabled's lack of capacity. The attending physician who makes the 41 confirmation, or the physician or licensed psychologist with whom the 42 attending physician consults, must (i) be employed by a developmental 43 disabilities services office named in section 13.17 of the mental 44 hygiene law or employed by the office for people with developmental 45 disabilities to provide treatment and care to people with developmental 46 disabilities, or (ii) have been employed for a minimum of two years to 47 render care and service in a facility or program operated, licensed or 48 authorized by the office [of mental retardation and] for people with 49 developmental disabilities, or (iii) have been approved by the commis- 50 sioner of [mental retardation and] the office for people with develop- 51 mental disabilities in accordance with regulations promulgated by such 52 commissioner. Such regulations shall require that a physician or 53 licensed psychologist possess specialized training or three years expe- 54 rience in treating [mental retardation] intellectual disability. A 55 record of such consultation shall be included in the [mentally retarded56person's] person who is intellectually disabled's medical record.S. 7132--A 6 1 (b) The attending physician, as defined in subdivision two of section 2 twenty-nine hundred eighty of the public health law, with the concur- 3 rence of another physician with whom such attending physician shall 4 consult, must determine to a reasonable degree of medical certainty and 5 note on the [mentally retarded person's] person who is intellectually 6 disabled's chart that: 7 (i) the [mentally retarded] person who is intellectually disabled has 8 a medical condition as follows: 9 A. a terminal condition, as defined in subdivision twenty-three of 10 section twenty-nine hundred sixty-one of the public health law; or 11 B. permanent unconsciousness; or 12 C. a medical condition other than such person's [mental retardation] 13 intellectual disability which requires life-sustaining treatment, is 14 irreversible and which will continue indefinitely; and 15 (ii) the life-sustaining treatment would impose an extraordinary 16 burden on such person, in light of: 17 A. such person's medical condition, other than such person's [mental18retardation] intellectual disability; and 19 B. the expected outcome of the life-sustaining treatment, notwith- 20 standing such person's [mental retardation] intellectual disability; and 21 (iii) in the case of a decision to withdraw or withhold artificially 22 provided nutrition or hydration: 23 A. there is no reasonable hope of maintaining life; or 24 B. the artificially provided nutrition or hydration poses an extraor- 25 dinary burden. 26 (c) The guardian shall express a decision to withhold or withdraw 27 life-sustaining treatment either: 28 (i) in writing, dated and signed in the presence of one witness eigh- 29 teen years of age or older who shall sign the decision, and presented to 30 the attending physician, as defined in subdivision two of section twen- 31 ty-nine hundred eighty of the public health law; or 32 (ii) orally, to two persons eighteen years of age or older, at least 33 one of whom is the [mentally retarded person's] person who is intellec- 34 tually disabled's attending physician, as defined in subdivision two of 35 section twenty-nine hundred eighty of the public health law. 36 (d) The attending physician, as defined in subdivision two of section 37 twenty-nine hundred eighty of the public health law, who is provided 38 with the decision of a guardian shall include the decision in the 39 [mentally retarded person's] person who is intellectually disabled's 40 medical chart, and shall either: 41 (i) promptly issue an order to withhold or withdraw life-sustaining 42 treatment from the [mentally retarded] person who is intellectually 43 disabled, and inform the staff responsible for such person's care, if 44 any, of the order; or 45 (ii) promptly object to such decision, in accordance with subdivision 46 five of this section. 47 (e) At least forty-eight hours prior to the implementation of a deci- 48 sion to withdraw life-sustaining treatment, or at the earliest possible 49 time prior to the implementation of a decision to withhold life-sustain- 50 ing treatment, the attending physician shall notify: 51 (i) the [mentally retarded] person who is intellectually disabled, 52 except if the attending physician determines, in writing and in consul- 53 tation with another physician or a licensed psychologist, that, to a 54 reasonable degree of medical certainty, the person would suffer immedi- 55 ate and severe injury from such notification. The attending physicianS. 7132--A 7 1 who makes the confirmation, or the physician or licensed psychologist 2 with whom the attending physician consults, shall: 3 A. be employed by a developmental disabilities services office named 4 in section 13.17 of the mental hygiene law or employed by the office for 5 people with developmental disabilities to provide treatment and care to 6 people with developmental disabilities, or 7 B. have been employed for a minimum of two years to render care and 8 service in a facility operated, licensed or authorized by the office [of9mental retardation and] for people with developmental disabilities, or 10 C. have been approved by the commissioner of [mental retardation and] 11 the office for people with developmental disabilities in accordance with 12 regulations promulgated by such commissioner. Such regulations shall 13 require that a physician or licensed psychologist possess specialized 14 training or three years experience in treating [mental retardation] 15 intellectual disability. A record of such consultation shall be 16 included in the [mentally retarded person's] person who is intellectual- 17 ly disabled's medical record; 18 (ii) if the person is in or was transferred from a residential facili- 19 ty operated, licensed or authorized by the office [of mental retardation20and] for people with developmental disabilities, the chief executive 21 officer of the agency or organization operating such facility and the 22 mental hygiene legal service; and 23 (iii) if the person is not in and was not transferred from such a 24 facility or program, the commissioner of [mental retardation and] the 25 office for people with developmental disabilities, or his or her desig- 26 nee. 27 5. Objection to health care decision. (a) Suspension. A health care 28 decision made pursuant to subdivision four of this section shall be 29 suspended, pending judicial review, except if the suspension would in 30 reasonable medical judgment be likely to result in the death of the 31 [mentally retarded] person who is intellectually disabled, in the event 32 of an objection to that decision at any time by: 33 (i) the [mentally retarded] person who is intellectually disabled on 34 whose behalf such decision was made; or 35 (ii) a parent or adult sibling who either resides with or has main- 36 tained substantial and continuous contact with the [mentally retarded] 37 person who is intellectually disabled; or 38 (iii) the attending physician, as defined in subdivision two of 39 section twenty-nine hundred eighty of the public health law; or 40 (iv) any other health care practitioner providing services to the 41 [mentally retarded] person who is intellectually disabled, who is 42 licensed pursuant to article one hundred thirty-one, one hundred thir- 43 ty-one-B, one hundred thirty-two, one hundred thirty-three, one hundred 44 thirty-six, one hundred thirty-nine, one hundred forty-one, one hundred 45 forty-three, one hundred forty-four, one hundred fifty-three, one 46 hundred fifty-four, one hundred fifty-six, one hundred fifty-nine or one 47 hundred sixty-four of the education law; or 48 (v) the chief executive officer identified in subparagraph (ii) of 49 paragraph (e) of subdivision four of this section; or 50 (vi) if the person is in or was transferred from a residential facili- 51 ty or program operated, approved or licensed by the office [of mental52retardation and] for people with developmental disabilities, the mental 53 hygiene legal service; or 54 (vii) if the person is not in and was not transferred from such a 55 facility or program, the commissioner of [mental retardation and] theS. 7132--A 8 1 office for people with developmental disabilities, or his or her desig- 2 nee. 3 (b) Form of objection. Such objection shall occur orally or in writ- 4 ing. 5 (c) Notification. In the event of the suspension of a health care 6 decision pursuant to this subdivision, the objecting party shall prompt- 7 ly notify the guardian and the other parties identified in paragraph (a) 8 of this subdivision, and the attending physician shall record such 9 suspension in the [mentally retarded person's] person who is intellectu- 10 ally disabled's medical chart. 11 (d) Dispute mediation. In the event of an objection pursuant to this 12 subdivision, at the request of the objecting party or person or entity 13 authorized to act as a guardian under this section, except a surrogate 14 decision making committee established pursuant to article eighty of the 15 mental hygiene law, such objection shall be referred to a dispute medi- 16 ation system, established pursuant to section two thousand nine hundred 17 seventy-two of the public health law or similar entity for mediating 18 disputes in a hospice, such as a patient's advocate's office, hospital 19 chaplain's office or ethics committee, as described in writing and 20 adopted by the governing authority of such hospice, for non-binding 21 mediation. In the event that such dispute cannot be resolved within 22 seventy-two hours or no such mediation entity exists or is reasonably 23 available for mediation of a dispute, the objection shall proceed to 24 judicial review pursuant to this subdivision. The party requesting medi- 25 ation shall provide notification to those parties entitled to notice 26 pursuant to paragraph (a) of this subdivision. 27 6. Special proceeding authorized. The guardian, the attending physi- 28 cian, as defined in subdivision two of section twenty-nine hundred 29 eighty of the public health law, the chief executive officer identified 30 in subparagraph (ii) of paragraph (e) of subdivision four of this 31 section, the mental hygiene legal service (if the person is in or was 32 transferred from a residential facility or program operated, approved or 33 licensed by the office [of mental retardation and] for people with 34 developmental disabilities) or the commissioner of [mental retardation35and] the office for people with developmental disabilities or his or her 36 designee (if the person is not in and was not transferred from such a 37 facility or program) may commence a special proceeding in a court of 38 competent jurisdiction with respect to any dispute arising under this 39 section, including objecting to the withdrawal or withholding of life- 40 sustaining treatment because such withdrawal or withholding is not in 41 accord with the criteria set forth in this section. 42 7. Provider's obligations. (a) A health care provider shall comply 43 with the health care decisions made by a guardian in good faith pursuant 44 to this section, to the same extent as if such decisions had been made 45 by the [mentally retarded] person who is intellectually disabled, if 46 such person had capacity. 47 (b) Notwithstanding paragraph (a) of this subdivision, nothing in this 48 section shall be construed to require a private hospital to honor a 49 guardian's health care decision that the hospital would not honor if the 50 decision had been made by the [mentally retarded] person who is intel- 51 lectually disabled, if such person had capacity, because the decision is 52 contrary to a formally adopted written policy of the hospital expressly 53 based on religious beliefs or sincerely held moral convictions central 54 to the hospital's operating principles, and the hospital would be 55 permitted by law to refuse to honor the decision if made by such person, 56 provided:S. 7132--A 9 1 (i) the hospital has informed the guardian of such policy prior to or 2 upon admission, if reasonably possible; and 3 (ii) the [mentally retarded] person who is intellectually disabled is 4 transferred promptly to another hospital that is reasonably accessible 5 under the circumstances and is willing to honor the guardian's decision. 6 If the guardian is unable or unwilling to arrange such a transfer, the 7 hospital's refusal to honor the decision of the guardian shall consti- 8 tute an objection pursuant to subdivision five of this section. 9 (c) Notwithstanding paragraph (a) of this subdivision, nothing in this 10 section shall be construed to require an individual health care provider 11 to honor a guardian's health care decision that the individual would not 12 honor if the decision had been made by the [mentally retarded] person 13 who is intellectually disabled, if such person had capacity, because the 14 decision is contrary to the individual's religious beliefs or sincerely 15 held moral convictions, provided the individual health care provider 16 promptly informs the guardian and the facility, if any, of his or her 17 refusal to honor the guardian's decision. In such event, the facility 18 shall promptly transfer responsibility for the [mentally retarded] 19 person who is intellectually disabled to another individual health care 20 provider willing to honor the guardian's decision. The individual health 21 care provider shall cooperate in facilitating such transfer of the 22 patient. 23 (d) Notwithstanding the provisions of any other paragraph of this 24 subdivision, if a guardian directs the provision of life-sustaining 25 treatment, the denial of which in reasonable medical judgment would be 26 likely to result in the death of the [mentally retarded] person who is 27 intellectually disabled, a hospital or individual health care provider 28 that does not wish to provide such treatment shall nonetheless comply 29 with the guardian's decision pending either transfer of the [mentally30retarded] person who is intellectually disabled to a willing hospital or 31 individual health care provider, or judicial review. 32 (e) Nothing in this section shall affect or diminish the authority of 33 a surrogate decision-making panel to render decisions regarding major 34 medical treatment pursuant to article eighty of the mental hygiene law. 35 8. Immunity. (a) Provider immunity. No health care provider or employ- 36 ee thereof shall be subjected to criminal or civil liability, or be 37 deemed to have engaged in unprofessional conduct, for honoring reason- 38 ably and in good faith a health care decision by a guardian, or for 39 other actions taken reasonably and in good faith pursuant to this 40 section. 41 (b) Guardian immunity. No guardian shall be subjected to criminal or 42 civil liability for making a health care decision reasonably and in good 43 faith pursuant to this section. 44 § 5. Section 1751 of the surrogate's court procedure act, as added by 45 chapter 675 of the laws of 1989, is amended to read as follows: 46 § 1751. Petition for appointment; by whom made 47 A petition for the appointment of a guardian of the person or proper- 48 ty, or both, of a [mentally retarded or developmentally disabled] person 49 who is intellectually disabled or a person who is developmentally disa- 50 bled may be made by a parent, any interested person eighteen years of 51 age or older on behalf of the [mentally retarded or developmentally52disabled] person who is intellectually disabled or a person who is 53 developmentally disabled including a corporation authorized to serve as 54 a guardian as provided for by this article, or by the [mentally retarded55or developmentally disabled] person who is intellectually disabled or aS. 7132--A 10 1 person who is developmentally disabled when such person is eighteen 2 years of age or older. 3 § 6. Section 1752 of the surrogate's court procedure act, as added by 4 chapter 675 of the laws of 1989, is amended to read as follows: 5 § 1752. Petition for appointment; contents 6 The petition for the appointment of a guardian shall be filed with the 7 court on forms to be prescribed by the state chief administrator of the 8 courts. Such petition for a guardian of a [mentally retarded or develop-9mentally disabled] person who is intellectually disabled or a person who 10 is developmentally disabled shall include, but not be limited to, the 11 following information: 12 1. the full name, date of birth and residence of the [mentally13retarded or developmentally disabled] person who is intellectually disa- 14 bled or a person who is developmentally disabled; 15 2. the name, age, address and relationship or interest of the peti- 16 tioner to the [mentally retarded or developmentally disabled] person who 17 is intellectually disabled or a person who is developmentally disabled; 18 3. the names of the father, the mother, children, adult siblings if 19 eighteen years of age or older, the spouse and primary care physician if 20 other than a physician having submitted a certification with the peti- 21 tion, if any, of the [mentally retarded or developmentally disabled] 22 person who is intellectually disabled or a person who is developmentally 23 disabled and whether or not they are living, and if living, their 24 addresses and the names and addresses of the nearest distributees of 25 full age who are domiciliaries, if both parents are dead; 26 4. the name and address of the person with whom the [mentally retarded27or developmentally disabled] person who is intellectually disabled or a 28 person who is developmentally disabled resides if other than the parents 29 or spouse; 30 5. the name, age, address, education and other qualifications, and 31 consent of the proposed guardian, standby and alternate guardian, if 32 other than the parent, spouse, adult child if eighteen years of age or 33 older or adult sibling if eighteen years of age or older, and if such 34 parent, spouse or adult child be living, why any of them should not be 35 appointed guardian; 36 6. the estimated value of real and personal property and the annual 37 income therefrom and any other income including governmental entitle- 38 ments to which the [mentally retarded or developmentally disabled] 39 person who is intellectually disabled or person who is developmentally 40 disabled is entitled; and 41 7. any circumstances which the court should consider in determining 42 whether it is in the best interests of the [mentally retarded or devel-43opmentally disabled] person who is intellectually disabled or person who 44 is developmentally disabled to not be [be] present at the hearing if 45 conducted. 46 § 7. Section 1753 of the surrogate's court procedure act, as added by 47 chapter 675 of the laws of 1989, is amended to read as follows: 48 § 1753. Persons to be served 49 1. Upon presentation of the petition, process shall issue to: 50 (a) the parent or parents, adult children, if the petitioner is other 51 than a parent, adult siblings, if the petitioner is other than a parent, 52 and if the [mentally retarded or developmentally disabled] person who is 53 intellectually disabled or person who is developmentally disabled is 54 married, to the spouse, if their residences are known; 55 (b) the person having care and custody of the [mentally retarded or56developmentally disabled] person who is intellectually disabled orS. 7132--A 11 1 person who is developmentally disabled, or with whom such person resides 2 if other than the parents or spouse; and 3 (c) the [mentally retarded or developmentally disabled] person who is 4 intellectually disabled or person who is developmentally disabled if 5 fourteen years of age or older for whom an application has been made in 6 such person's behalf. 7 2. Upon presentation of the petition, notice of such petition shall be 8 served by certified mail to: 9 (a) the adult siblings if the petitioner is a parent, and adult chil- 10 dren if the petitioner is a parent; 11 (b) the mental hygiene legal service in the judicial department where 12 the facility, as defined in subdivision (a) of section 47.01 of the 13 mental hygiene law, is located if the [mentally retarded or develop-14mentally disabled] person who is intellectually disabled or person who 15 is developmentally disabled resides in such a facility; 16 (c) in all cases, to the director in charge of a facility licensed or 17 operated by an agency of the state of New York, if the [mentally18retarded or developmentally disabled] person who is intellectually disa- 19 bled or person who is developmentally disabled resides in such facility; 20 (d) one other person if designated in writing by the [mentally21retarded or developmentally disabled] person who is intellectually disa- 22 bled or person who is developmentally disabled; and 23 (e) such other persons as the court may deem proper. 24 3. No process or notice shall be necessary to a parent, adult child, 25 adult sibling, or spouse of the [mentally retarded or developmentally26disabled] person who is intellectually disabled or person who is devel- 27 opmentally disabled who has been declared by a court as being incompe- 28 tent. In addition, no process or notice shall be necessary to a spouse 29 who is divorced from the [mentally retarded or developmentally disabled] 30 person who is intellectually disabled or person who is developmentally 31 disabled, and to a parent, adult child, adult sibling when it shall 32 appear to the satisfaction of the court that such person or persons have 33 abandoned the [mentally retarded or developmentally disabled] person who 34 is intellectually disabled or person who is developmentally disabled. 35 § 8. Section 1754 of the surrogate's court procedure act, as added by 36 chapter 675 of the laws of 1989, is amended to read as follows: 37 § 1754. Hearing and trial 38 1. Upon a petition for the appointment of a guardian of a [mentally39retarded or developmentally disabled] person who is intellectually disa- 40 bled or person who is developmentally disabled eighteen years of age or 41 older, the court shall conduct a hearing at which such person shall have 42 the right to jury trial. The right to a jury trial shall be deemed 43 waived by failure to make a demand therefor. The court may in its 44 discretion dispense with a hearing for the appointment of a guardian, 45 and may in its discretion appoint a guardian ad litem, or the mental 46 hygiene legal service if such person is a resident of a mental hygiene 47 facility as defined in subdivision (a) of section 47.01 of the mental 48 hygiene law, to recommend whether the appointment of a guardian as 49 proposed in the application is in the best interest of the [mentally50retarded or developmentally disabled] person who is intellectually disa- 51 bled or person who is developmentally disabled, provided however, that 52 such application has been made by: 53 (a) both parents or the survivor; or 54 (b) one parent and the consent of the other parent; or 55 (c) any interested party and the consent of each parent.S. 7132--A 12 1 2. When it shall appear to the satisfaction of the court that a parent 2 or parents not joining in or consenting to the application have aban- 3 doned the [mentally retarded or developmentally disabled] person who is 4 intellectually disabled or person who is developmentally disabled or are 5 not otherwise required to receive notice, the court may dispense with 6 such parent's consent in determining the need to conduct a hearing for a 7 person under the age of eighteen. However, if the consent of both 8 parents or the surviving parent is dispensed with by the court, a hear- 9 ing shall be held on the application. 10 3. If a hearing is conducted, the [mentally retarded or develop-11mentally disabled] person who is intellectually disabled or person who 12 is developmentally disabled shall be present unless it shall appear to 13 the satisfaction of the court on the certification of the certifying 14 physician that the [mentally retarded or developmentally disabled] 15 person who is intellectually disabled or person who is developmentally 16 disabled is medically incapable of being present to the extent that 17 attendance is likely to result in physical harm to such [mentally18retarded or developmentally disabled] person who is intellectually disa- 19 bled or person who is developmentally disabled, or under such other 20 circumstances which the court finds would not be in the best interest of 21 the [mentally retarded or developmentally disabled] person who is intel- 22 lectually disabled or person who is developmentally disabled. 23 4. If either a hearing is dispensed with pursuant to subdivisions one 24 and two of this section or the [mentally retarded or developmentally25disabled] person who is intellectually disabled or person who is devel- 26 opmentally disabled is not present at the hearing pursuant to subdivi- 27 sion three of this section, the court may appoint a guardian ad litem if 28 no mental hygiene legal service attorney is authorized to act on behalf 29 of the [mentally retarded or developmentally disabled] person who is 30 intellectually disabled or person who is developmentally disabled. The 31 guardian ad litem or mental hygiene legal service attorney, if 32 appointed, shall personally interview the [mentally retarded or develop-33mentally disabled] person who is intellectually disabled or person who 34 is developmentally disabled and shall submit a written report to the 35 court. 36 5. If, upon conclusion of such hearing or jury trial or if none be 37 held upon the application, the court is satisfied that the best inter- 38 ests of the [mentally retarded or developmentally disabled] person who 39 is intellectually disabled or person who is developmentally disabled 40 will be promoted by the appointment of a guardian of the person or prop- 41 erty, or both, it shall make a decree naming such person or persons to 42 serve as such guardians. 43 § 9. Section 1755 of the surrogate's court procedure act, as added by 44 chapter 675 of the laws of 1989, is amended to read as follows: 45 § 1755. Modification order 46 Any [mentally retarded or developmentally disabled] person who is 47 intellectually disabled or person who is developmentally disabled eigh- 48 teen years of age or older, or any person on behalf of any [mentally49retarded or developmentally disabled] person who is intellectually disa- 50 bled or person who is developmental disabled for whom a guardian has 51 been appointed, may apply to the court having jurisdiction over the 52 guardianship order requesting modification of such order in order to 53 protect the [mentally retarded or developmentally disabled person's] 54 person who is intellectually disabled's, or person who is develop- 55 mentally disabled's financial situation and/or his or her personal 56 interests. The court may, upon receipt of any such request to modify theS. 7132--A 13 1 guardianship order, appoint a guardian ad litem. The court shall so 2 modify the guardianship order if in its judgment the interests of the 3 guardian are adverse to those of the [mentally retarded or develop-4mentally disabled] person who is intellectually disabled or person who 5 is developmentally disabled or if the interests of justice will be best 6 served including, but not limited to, facts showing the necessity for 7 protecting the personal and/or financial interests of the [mentally8retarded or developmentally disabled] person who is intellectually disa- 9 bled or person who is developmentally disabled. 10 § 10. Section 1756 of the surrogate's court procedure act, as added by 11 chapter 675 of the laws of 1989, is amended to read as follows: 12 § 1756. Limited guardian of the property 13 When it shall appear to the satisfaction of the court that such 14 [mentally retarded or developmentally disabled] person who is intellec- 15 tually disabled or person who is developmentally disabled for whom an 16 application for guardianship is made is eighteen years of age or older 17 and is wholly or substantially self-supporting by means of his or her 18 wages or earnings from employment, the court is authorized and empowered 19 to appoint a limited guardian of the property of such [mentally retarded20or developmentally disabled] person who is intellectually disabled or 21 person who is developmentally disabled who shall receive, manage, 22 disburse and account for only such property of said [mentally retarded23or developmentally disabled] person who is intellectually disabled or 24 person who is developmentally disabled as shall be received from other 25 than the wages or earnings of said person. 26 The [mentally retarded or developmentally disabled] person who is 27 intellectually disabled or person who is developmentally disabled for 28 whom a limited guardian of the property has been appointed shall have 29 the right to receive and expend any and all wages or other earnings of 30 his or her employment and shall have the power to contract or legally 31 bind himself or herself for such sum of money not exceeding one month's 32 wages or earnings from such employment or three hundred dollars, which- 33 ever is greater, or as otherwise authorized by the court. 34 § 11. Section 1757 of the surrogate's court procedure act, as added by 35 chapter 675 of the laws of 1989, the section heading as amended by chap- 36 ter 290 of the laws of 1992, subdivision 2 as amended by chapter 260 of 37 the laws of 2009, and subdivision 3 as added by chapter 294 of the laws 38 of 2012, is amended to read as follows: 39 § 1757. Standby guardian of a [mentally retarded or developmentally40disabled] person who is intellectually disabled or person who 41 is developmentally disabled 42 1. Upon application, a standby guardian of the person or property or 43 both of a [mentally retarded or developmentally disabled] person who is 44 intellectually disabled or person who is developmentally disabled may be 45 appointed by the court. The court may also, upon application, appoint an 46 alternate and/or successive alternates to such standby guardian, to act 47 if such standby guardian shall die, or become incapacitated, or shall 48 renounce. Such appointments by the court shall be made in accordance 49 with the provisions of this article. 50 2. Such standby guardian, or alternate in the event of such standby 51 guardian's death, incapacity or renunciation, shall without further 52 proceedings be empowered to assume the duties of his or her office imme- 53 diately upon death, renunciation or adjudication of incompetency of the 54 guardian or standby guardian appointed pursuant to this article, subject 55 only to confirmation of his or her appointment by the court within one 56 hundred eighty days following assumption of his or her duties of suchS. 7132--A 14 1 office. Before confirming the appointment of the standby guardian or 2 alternate guardian, the court may conduct a hearing pursuant to section 3 seventeen hundred fifty-four of this article upon petition by anyone on 4 behalf of the [mentally retarded or developmentally disabled] person who 5 is intellectually disabled or person who is developmentally disabled or 6 the [mentally retarded or developmentally disabled] person who is intel- 7 lectually disabled or person who is developmentally disabled if such 8 person is eighteen years of age or older, or upon its discretion. 9 3. Failure of a standby or alternate standby guardian to assume the 10 duties of guardian, seek court confirmation or to renounce the guardian- 11 ship within sixty days of written notice by certified mail or personal 12 delivery given by or on behalf of the [mentally retarded or develop-13mentally disabled] person who is intellectually disabled or person who 14 is developmentally disabled of a prior guardian's inability to serve and 15 the standby or alternate standby guardian's duty to serve, seek court 16 confirmation or renounce such role shall allow the court to: 17 (a) deem the failure an implied renunciation of guardianship, and 18 (b) authorize, notwithstanding the time period provided for in subdi- 19 vision two of this section to seek court confirmation, any remaining 20 standby or alternate standby guardian to serve in such capacity provided 21 (i) an application for confirmation and appropriate notices pursuant to 22 subdivision one of section seventeen hundred fifty-three of this article 23 are filed, or (ii) an application for modification of the guardianship 24 order pursuant to section seventeen hundred fifty-five of this article 25 is filed. 26 § 12. Section 1758 of the surrogate's court procedure act, as amended 27 by chapter 427 of the laws of 2013, is amended to read as follows: 28 § 1758. Court jurisdiction 29 1. The jurisdiction of the court to hear proceedings pursuant to this 30 article shall be subject to article eighty-three of the mental hygiene 31 law. 32 2. After the appointment of a guardian, standby guardian or alternate 33 guardians, the court shall have and retain general jurisdiction over the 34 [mentally retarded or developmentally disabled] person who is intellec- 35 tually disabled or person who is developmentally disabled for whom such 36 guardian shall have been appointed, to take of its own motion or to 37 entertain and adjudicate such steps and proceedings relating to such 38 guardian, standby, or alternate guardianship as may be deemed necessary 39 or proper for the welfare of such [mentally retarded or developmentally40disabled] person who is intellectually disabled or person who is devel- 41 opmentally disabled. 42 § 13. Section 1759 of the surrogate's court procedure act, as added by 43 chapter 675 of the laws of 1989, is amended to read as follows: 44 § 1759. Duration of guardianship 45 1. Such guardianship shall not terminate at the age of majority or 46 marriage of such [mentally retarded or developmentally disabled] person 47 who is intellectually disabled or person who is developmentally disabled 48 but shall continue during the life of such person, or until terminated 49 by the court. 50 2. A person eighteen years or older for whom such a guardian has been 51 previously appointed or anyone, including the guardian, on behalf of a 52 [mentally retarded or developmentally disabled] person who is intellec- 53 tually disabled or person who is developmentally disabled for whom a 54 guardian has been appointed may petition the court which made such 55 appointment or the court in his or her county of residence to have the 56 guardian discharged and a successor appointed, or to have the guardianS. 7132--A 15 1 of the property designated as a limited guardian of the property, or to 2 have the guardianship order modified, dissolved or otherwise amended. 3 Upon such a petition for review, the court shall conduct a hearing 4 pursuant to section seventeen hundred fifty-four of this article. 5 3. Upon marriage of such [mentally retarded or developmentally disa-6bled] person who is intellectually disabled or person who is develop- 7 mentally disabled for whom such a guardian has been appointed, the court 8 shall, upon request of the [mentally retarded or developmentally disa-9bled] person who is intellectually disabled or person who is develop- 10 mentally disabled, spouse, or any other person acting on behalf of the 11 [mentally retarded or developmentally disabled] person who is intellec- 12 tually disabled or person who is developmentally disabled, review the 13 need, if any, to modify, dissolve or otherwise amend the guardianship 14 order including, but not limited to, the appointment of the spouse as 15 standby guardian. The court, in its discretion, may conduct such review 16 pursuant to section seventeen hundred fifty-four of this article. 17 § 14. Section 1760 of the surrogate's court procedure act, as added by 18 chapter 675 of the laws of 1989, is amended to read as follows: 19 § 1760. Corporate guardianship 20 No corporation may be appointed guardian of the person under the 21 provisions of this article, except that a non-profit corporation organ- 22 ized and existing under the laws of the state of New York and having the 23 corporate power to act as guardian of [mentally retarded or develop-24mentally disabled persons] a person who is intellectually disabled or 25 person who is developmentally disabled may be appointed as the guardian 26 of the person only of such [mentally retarded or developmentally disa-27bled] person who is intellectually disabled or person who is develop- 28 mentally disabled. 29 § 15. Section 1761 of the surrogate's court procedure act, as added by 30 chapter 675 of the laws of 1989, is amended to read as follows: 31 § 1761. Application of other provisions 32 To the extent that the context thereof shall admit, the provisions of 33 article seventeen of this act shall apply to all proceedings under this 34 article with the same force and [affect] effect as if an "infant", as 35 therein referred to, were a ["mentally retarded" or "developmentally36disabled person"] "person who is intellectually disabled" or "person who 37 is developmentally disabled" as herein defined, and a "guardian" as 38 therein referred to were a "guardian of the [mentally retarded] person 39 who is intellectually disabled" or a "guardian of a [developmentally40disabled] person who is developmentally disabled" as herein provided 41 for. 42 § 16. This act shall take effect immediately.
