Bill Text: NY A06510 | 2015-2016 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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 24-0)

Status: (Engrossed - Dead) 2016-03-17 - REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES [A06510 Detail]

Download: New_York-2015-A06510-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6510
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                    March 25, 2015
                                      ___________
       Introduced  by  M. of A. WEINSTEIN, GOTTFRIED, LENTOL, STECK, ZEBROWSKI,
         COLTON, ROBINSON, ROSENTHAL -- Multi-Sponsored by -- M. of A.  ARROYO,
         BLAKE,  BRENNAN, CLARK, COOK, CRESPO, DAVILA, DenDEKKER, GALEF, GLICK,
         JAFFEE, PICHARDO, STIRPE -- read once and referred to the Committee on
         Judiciary
       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    S  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.
   18    S  3.  Subparagraph (iii) of paragraph 1 of subdivision (g) of section
   19  81.07 of the mental hygiene law, as amended by chapter 438 of  the  laws
   20  of 2004, is amended to read as follows:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09900-03-5
       A. 6510                             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 and two  thousand  nine  hundred
    5  eighty-one of the public health law, if known to the petitioner; and
    6    S  4.  Paragraph  14 of subdivision (a) of section 81.08 of the mental
    7  hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
    8  read as follows:
    9    14.  the available resources, if any, that have been considered by the
   10  petitioner, THE STEPS TAKEN TO IDENTIFY  AVAILABLE  RESOURCES,  and  the
   11  petitioner's  opinion as to [their sufficiency and reliability] WHY SUCH
   12  RESOURCES ARE NOT SUFFICIENT OR RELIABLE  ENOUGH  TO  MEET  THE  ALLEGED
   13  INCAPACITATED PERSON'S NEEDS WITHOUT THE APPOINTMENT OF A GUARDIAN;
   14    S  5.  Paragraph  15 of subdivision (a) of section 81.08 of the mental
   15  hygiene law is renumbered paragraph 18, and three new paragraphs 15,  16
   16  and 17 are added to read as follows:
   17    15.  FOR  ALL  AVAILABLE  RESOURCES  CONSIDERED BY THE PETITIONER, THE
   18  NAME, ADDRESS, TELEPHONE NUMBER ALONG WITH ANY  OTHER  CONTACT  INFORMA-
   19  TION, RELATIONSHIP TO THE ALLEGED INCAPACITATED PERSON AND ANY DOCUMENTS
   20  KNOWN TO THE PETITIONER THAT GRANT THE AVAILABLE RESOURCE LEGAL AUTHORI-
   21  TY  TO  MANAGE  THE  PERSONAL,  MEDICAL  AND/OR FINANCIAL AFFAIRS OF THE
   22  ALLEGED INCAPACITATED PERSON;
   23    16. IF THE PETITIONER SEEKS TO REVOKE ANY LAWFULLY  EXECUTED  APPOINT-
   24  MENT  OR DELEGATION MADE BY THE ALLEGED INCAPACITATED PERSON PURSUANT TO
   25  TITLE FIFTEEN OF ARTICLE FIVE OF THE GENERAL  OBLIGATIONS  LAW,  SECTION
   26  TWENTY-NINE  HUNDRED SIXTY-FIVE OR TWENTY-NINE HUNDRED EIGHTY-ONE OF THE
   27  PUBLIC HEALTH LAW, OR ANY LIVING WILL,  THE  PETITION  SHALL  SET  FORTH
   28  SPECIFIC REASONS FOR THE REVOCATION;
   29    17. AN AFFIRMATIVE STATEMENT THAT THE PETITION IS NOT BROUGHT PRIMARI-
   30  LY  FOR  THE  PURPOSE  OF BILL COLLECTION OR RESOLVING A BILL COLLECTION
   31  DISPUTE;
   32    S 6. Subparagraph (xi) of paragraph 5 of subdivision  (c)  of  section
   33  81.09  of  the mental hygiene law, as amended by chapter 438 of the laws
   34  of 2004, is amended to read as follows;
   35    (xi) has the person alleged to be incapacitated made  any  appointment
   36  or  delegation  pursuant  to  [section  5-1501, 5-1505, or 5-1506] TITLE
   37  FIFTEEN OF ARTICLE FIVE of the  general  obligations  law,  section  two
   38  thousand nine hundred sixty-five or two thousand nine hundred eighty-one
   39  of the public health law, or a living will;
   40    S  7.  Paragraph  1  of subdivision (d) of section 81.19 of the mental
   41  hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
   42  read as follows:
   43    1.  any  appointment  or  delegation  made by the person alleged to be
   44  incapacitated in accordance with  the  provisions  of  [section  5-1501,
   45  5-1601  or  5-1602]  TITLE  FIFTEEN OF ARTICLE FIVE of the general obli-
   46  gations law and sections two thousand nine hundred  sixty-five  and  two
   47  thousand nine hundred eighty-one of the public health law;
   48    S  8.  Subdivision  (e) of section 81.19 of the mental hygiene law, as
   49  added by chapter 698 of the laws of 1992, is amended to read as follows:
   50    (e) [Unless the court finds that no other  person  or  corporation  is
   51  available  or  willing to act as guardian, or to provide needed services
   52  for the incapacitated person, the] THE following persons or corporations
   53  may not serve as guardian:
   54    1. one whose only interest in the person alleged to  be  incapacitated
   55  is that of a creditor;
       A. 6510                             3
    1    2. one, other than a relative, who is a provider, or the employee of a
    2  provider,  of  [health  care,]  day  care[, educational,] or residential
    3  services to the incapacitated person, whether direct or indirect.
    4    S  9.  Paragraph  2  of subdivision (b) of section 81.22 of the mental
    5  hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
    6  read as follows:
    7    2.  revoke  any  appointment  or  delegation made by the incapacitated
    8  person pursuant to [sections 5-1501, 5-1601 and 5-1602] TITLE FIFTEEN OF
    9  ARTICLE FIVE of the general obligations law, sections two thousand  nine
   10  hundred  sixty-five  and  two  thousand  nine  hundred eighty-one of the
   11  public health law, or any living will.
   12    S 10. Subdivision (d) of section 81.29 of the mental hygiene  law,  as
   13  amended  by  chapter  176  of  the  laws  of 2008, is amended to read as
   14  follows:
   15    (d) If the court determines  that  the  person  is  incapacitated  and
   16  appoints  a  guardian, the court may modify, amend, or revoke any previ-
   17  ously executed appointment, power, or delegation under [section  5-1501,
   18  5-1505,  or  5-1506]  TITLE FIFTEEN OF ARTICLE FIVE of the general obli-
   19  gations law or section two  thousand  nine  hundred  sixty-five  of  the
   20  public  health  law,  or section two thousand nine hundred eighty-one of
   21  the public health law notwithstanding section two thousand nine  hundred
   22  ninety-two  of  the  public  health law, or any contract, conveyance, or
   23  disposition during lifetime or to take effect upon death,  made  by  the
   24  incapacitated  person  prior  to  the appointment of the guardian if the
   25  court finds that the previously executed appointment, power, delegation,
   26  contract, conveyance, or disposition during lifetime or to  take  effect
   27  upon  death, was made while the person was incapacitated or if the court
   28  determines that there has been a breach of fiduciary duty by the  previ-
   29  ously  appointed  agent. In such event, the court shall require that the
   30  agent account to the guardian. The court shall not, however,  invalidate
   31  or  revoke  a  will  or  a codicil of an incapacitated person during the
   32  lifetime of such person.
   33    S 11. This act shall take effect on  the  one  hundred  eightieth  day
   34  after  it shall have become a law, provided that, effective immediately,
   35  any rules and regulations necessary to implement the provisions of  this
   36  act on its effective date are authorized and directed to be completed on
   37  or before such date.