Bill Text: NY S08133 | 2023-2024 | 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) 2024-01-08 - REFERRED TO MENTAL HEALTH [S08133 Detail]
Download: New_York-2023-S08133-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8133 IN SENATE January 8, 2024 ___________ Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health 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 23 the social services law for the benefit of the person alleged to be 24 incapacitated. 25 § 3. Subparagraph (iii) of paragraph 1 of subdivision (g) of section 26 81.07 of the mental hygiene law, as amended by chapter 438 of the laws 27 of 2004, is amended to read as follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00063-01-3S. 8133 2 1 (iii) any person or persons designated by the alleged incapacitated 2 person with authority pursuant to [sections 5-1501, 5-1505, and 5-1506] 3 title fifteen of article five of the general obligations law, or 4 sections two thousand nine hundred [five] sixty-five and two thousand 5 nine hundred eighty-one of the public health law, if known to the peti- 6 tioner; and 7 § 4. Paragraph 14 of subdivision (a) of section 81.08 of the mental 8 hygiene law, as added by chapter 698 of the laws of 1992, is amended to 9 read as follows: 10 14. the available resources, if any, that have been considered by the 11 petitioner, the steps taken to identify available resources, and the 12 petitioner's opinion as to [their sufficiency and reliability] why such 13 resources are not sufficient or reliable enough to meet the alleged 14 incapacitated person's needs without the appointment of a guardian; 15 § 5. Paragraph 15 of subdivision (a) of section 81.08 of the mental 16 hygiene law is renumbered paragraph 18, and three new paragraphs 15, 16 17 and 17 are added to read as follows: 18 15. for all available resources considered by the petitioner, the 19 name, address, telephone number along with any other contact informa- 20 tion, relationship to the alleged incapacitated person and any documents 21 known to the petitioner that grant the available resource legal authori- 22 ty to manage the personal, medical and/or financial affairs of the 23 alleged incapacitated person; 24 16. if the petitioner seeks to revoke any lawfully executed appoint- 25 ment or delegation made by the alleged incapacitated person pursuant to 26 title fifteen of article five of the general obligations law, section 27 twenty-nine hundred sixty-five or twenty-nine hundred eighty-one of the 28 public health law, or any living will, the petition shall set forth 29 specific reasons for the revocation; 30 17. an affirmative statement that the petition is not brought primari- 31 ly for the purpose of bill collection or resolving a bill collection 32 dispute; 33 § 6. Subparagraph (xi) of paragraph 5 of subdivision (c) of section 34 81.09 of the mental hygiene law, as amended by chapter 438 of the laws 35 of 2004, is amended to read as follows: 36 (xi) has the person alleged to be incapacitated made any appointment 37 or delegation pursuant to [section 5-1501, 5-1505, or 5-1506] title 38 fifteen of article five of the general obligations law, section two 39 thousand nine hundred sixty-five or two thousand nine hundred eighty-one 40 of the public health law, or a living will; 41 § 7. Paragraph 1 of subdivision (d) of section 81.19 of the mental 42 hygiene law, as added by chapter 698 of the laws of 1992, is amended to 43 read as follows: 44 1. any appointment or delegation made by the person alleged to be 45 incapacitated in accordance with the provisions of [section 5-1501,465-1601 or 5-1602] title fifteen of article five of the general obli- 47 gations law and sections two thousand nine hundred sixty-five and two 48 thousand nine hundred eighty-one of the public health law; 49 § 8. The opening paragraph of subdivision (e) of section 81.19 of the 50 mental hygiene law, as added by chapter 698 of the laws of 1992, is 51 amended to read as follows: 52 [Unless the court finds that no other person or corporation is avail-53able or willing to act as guardian, or to provide needed services for54the incapacitated person, the] The following persons or corporations may 55 not serve as guardian:S. 8133 3 1 § 9. Paragraph 2 of subdivision (b) of section 81.22 of the mental 2 hygiene law, as added by chapter 698 of the laws of 1992, is amended to 3 read as follows: 4 2. revoke any appointment or delegation made by the incapacitated 5 person pursuant to [sections 5-1501, 5-1601 and 5-1602] title fifteen of 6 article five of the general obligations law, sections two thousand nine 7 hundred sixty-five and two thousand nine hundred eighty-one of the 8 public health law, or any living will. 9 § 10. Subdivision (d) of section 81.29 of the mental hygiene law, as 10 amended by chapter 176 of the laws of 2008, is amended to read as 11 follows: 12 (d) If the court determines that the person is incapacitated and 13 appoints a guardian, the court may modify, amend, or revoke any previ- 14 ously executed appointment, power, or delegation under [section 5-1501,155-1505, or 5-1506] title fifteen of article five of the general obli- 16 gations law or section two thousand nine hundred sixty-five of the 17 public health law, or section two thousand nine hundred eighty-one of 18 the public health law notwithstanding section two thousand nine hundred 19 ninety-two of the public health law, or any contract, conveyance, or 20 disposition during lifetime or to take effect upon death, made by the 21 incapacitated person prior to the appointment of the guardian if the 22 court finds that the previously executed appointment, power, delegation, 23 contract, conveyance, or disposition during lifetime or to take effect 24 upon death, was made while the person was incapacitated or if the court 25 determines that there has been a breach of fiduciary duty by the previ- 26 ously appointed agent. In such event, the court shall require that the 27 agent account to the guardian. The court shall not, however, invalidate 28 or revoke a will or a codicil of an incapacitated person during the 29 lifetime of such person. 30 § 11. This act shall take effect on the one hundred eightieth day 31 after it shall have become a law. Effective immediately, any rules and 32 regulations necessary to implement the provisions of this act on its 33 effective date are authorized to be made and completed on or before such 34 effective date.
