Bill Text: NY S05154 | 2015-2016 | General Assembly | Introduced

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

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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 (Republican 1-0)

Status: (Engrossed - Dead) 2016-06-14 - SUBSTITUTED BY A3461C [S05154 Detail]

Download: New_York-2015-S05154-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5154
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                      May 5, 2015
                                      ___________
       Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
         when printed to be committed to the Committee  on  Mental  Health  and
         Developmental Disabilities
       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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07225-01-5
       S. 5154                             2
    1  LIMITATIONS  THAT RESTRICT HIS OR HER ABILITY TO CARRY OUT NORMAL ACTIV-
    2  ITIES OR TO PROTECT HIS OR HER RIGHTS, INCLUDING, BUT  NOT  LIMITED  TO,
    3  PERSONS  WHO HAVE PHYSICAL OR DEVELOPMENTAL DISABILITIES, OR WHOSE PHYS-
    4  ICAL OR MENTAL ABILITIES HAVE DIMINISHED BECAUSE OF AGE.
    5    3. "ISOLATION" SHALL MEAN:
    6    (I)  ACTS  INTENTIONALLY  COMMITTED FOR THE PURPOSE OF PREVENTING, AND
    7  THAT DO SERVE TO PREVENT, AN ELDER OR DEPENDENT ADULT FROM RECEIVING HIS
    8  OR HER MAIL OR TELEPHONE CALLS.
    9    (II) TELLING A CALLER OR PROSPECTIVE VISITOR THAT AN ELDER OR  DEPEND-
   10  ENT  ADULT  IS NOT PRESENT, OR DOES NOT WISH TO TALK WITH THE CALLER, OR
   11  DOES NOT WISH TO MEET WITH THE VISITOR WHERE THE STATEMENT IS FALSE,  IS
   12  CONTRARY  TO  THE  EXPRESS  WISHES  OF THE ELDER OR THE DEPENDENT ADULT,
   13  WHETHER HE OR SHE IS COMPETENT OR NOT, AND IS MADE FOR  THE  PURPOSE  OF
   14  PREVENTING THE ELDER OR DEPENDENT ADULT FROM HAVING CONTACT WITH FAMILY,
   15  FRIENDS, OR CONCERNED PERSONS.
   16    (III)  PHYSICAL  RESTRAINT  OF  AN  ELDER  OR DEPENDENT ADULT, FOR THE
   17  PURPOSE OF PREVENTING THE ELDER OR DEPENDENT  ADULT  FROM  MEETING  WITH
   18  VISITORS.
   19    4."PETITIONER"  SHALL  MEAN  A  PERSON  WHO IS A RELATIVE IN THE FIRST
   20  DEGREE OF THE PROPOSED VISITEE.
   21    5. "PROPOSED VISITEE" SHALL MEAN THE ELDER OR DEPENDENT ADULT, WHO  IS
   22  UNDER  THE  CARE  OR  CUSTODY  OF THE RESPONDENT, TO BE PROTECTED BY THE
   23  VISITATION ORDER AND, IF THE COURT GRANTS THE  PETITION,  THE  PROTECTED
   24  PERSON.
   25    6.  "RESPONDENT"  SHALL MEAN THE PERSON WHO IS ALLEGED TO BE ISOLATING
   26  THE PROPOSED VISITEE, AND IF THE PETITION  IS  GRANTED,  THE  RESTRAINED
   27  PERSON.
   28    7.  "VISITATION"  SHALL  MEAN ANY IN-PERSON MEETING BETWEEN A PROPOSED
   29  VISITEE AND THE PETITIONER.
   30    8. "VISITATION ORDER" SHALL MEAN AN ORDER ENJOINING A PARTY FROM KEEP-
   31  ING THE PROPOSED VISITEE IN ISOLATION FROM CONTACT WITH  THE  PETITIONER
   32  THAT IS ISSUED BY A COURT AFTER NOTICE AND HEARING.
   33    (C)  ORDER.  1.  AN ORDER MAY BE ISSUED UNDER THIS SECTION TO RESTRAIN
   34  THE RESPONDENT FOR THE PURPOSE OF PREVENTING A RECURRENCE  OF  ISOLATION
   35  IF  THE  PETITIONER HAS SHOWN BY A PREPONDERANCE OF THE EVIDENCE, TO THE
   36  SATISFACTION OF THE COURT, REASONABLE PROOF OF A PAST  ACT  OR  ACTS  OF
   37  ISOLATION  OF THE PROPOSED VISITEE FROM CONTACT WITH THE PETITIONER, AND
   38  UPON A SHOWING THAT THE PROPOSED VISITEE DESIRES CONTACT WITH THE  PETI-
   39  TIONER OR THAT VISITATION IS IN THE BEST INTERESTS OF THE PROPOSED VISI-
   40  TEE.
   41    2.  THE  ORDER MAY SPECIFY THE FREQUENCY, TIME, PLACE, AND LOCATION OF
   42  VISITATION.
   43    3. IN DECIDING WHETHER VISITATION WITH THE PETITIONER IS IN  THE  BEST
   44  INTEREST OF THE PROPOSED VISITEE THE COURT MAY CONSIDER WHETHER THE BEST
   45  INTEREST  OF  THE  PROPOSED  VISITEE REQUIRES THAT ANY VISITATION BY THE
   46  PETITIONER BE LIMITED TO SITUATIONS IN WHICH A THIRD  PERSON,  SPECIFIED
   47  BY  THE  COURT,  IS PRESENT, OR WHETHER VISITATION SHALL BE SUSPENDED OR
   48  DENIED. THE PETITIONER, PROPOSED VISITEE, OR RESPONDENT  MAY  SUBMIT  TO
   49  THE  COURT THE NAME OF A PERSON WHO MAY BE SUITABLE TO BE PRESENT DURING
   50  VISITATION.
   51    4. IN DECIDING WHETHER VISITATION WITH THE PETITIONER IS IN  THE  BEST
   52  INTEREST  OF  THE  PROPOSED  VISITEE, THE COURT SHALL CONSIDER ANY PRIOR
   53  PROTECTIVE ORDERS ISSUED AGAINST THE PETITIONER.
   54    5. THE COURT SHALL NOT ISSUE AN ORDER UNLESS THE PROPOSED VISITEE  HAS
   55  EXPRESSED  A DESIRE FOR VISITATION. THE COURT MAY APPOINT A COURT INVES-
       S. 5154                             3
    1  TIGATOR TO DETERMINE WHETHER THE PROPOSED VISITEE HAS EXPRESSED A DESIRE
    2  FOR VISITATION.
    3    6.  THE  COURT  SHALL  ISSUE  AN ORDER ONLY AFTER NOTICE AND A HEARING
    4  UNDER THIS SECTION, AND THE COURT SHALL NOT  ISSUE  AN  EX  PARTE  ORDER
    5  UNDER THIS SECTION.
    6    7.  IN THE DISCRETION OF THE COURT, AN ORDER ISSUED AFTER NOTICE AND A
    7  HEARING UNDER THIS SECTION MAY HAVE A DURATION OF  NOT  MORE  THAN  FIVE
    8  YEARS,  SUBJECT  TO  TERMINATION OR MODIFICATION BY FURTHER ORDER OF THE
    9  COURT EITHER ON WRITTEN STIPULATION FILED  WITH  THE  COURT  OR  ON  THE
   10  MOTION  OF  A  PARTY. THESE ORDERS MAY BE RENEWED, UPON THE REQUEST OF A
   11  PARTY, EITHER FOR FIVE YEARS OR PERMANENTLY, WITHOUT A  SHOWING  OF  ANY
   12  FURTHER  ISOLATION  SINCE THE ISSUANCE OF THE ORIGINAL ORDER, SUBJECT TO
   13  TERMINATION OR MODIFICATION BY FURTHER ORDER  OF  THE  COURT  EITHER  ON
   14  WRITTEN  STIPULATION  FILED  WITH THE COURT OR ON THE MOTION OF A PARTY.
   15  THE REQUEST FOR RENEWAL MAY BE BROUGHT AT  ANY  TIME  WITHIN  THE  THREE
   16  MONTHS  BEFORE  THE  EXPIRATION  OF THE ORDERS. THE FAILURE TO STATE THE
   17  EXPIRATION DATE ON THE FACE OF THE FORM CREATES AN ORDER WITH A DURATION
   18  OF THREE YEARS FROM THE DATE OF ISSUANCE.
   19    (D) REPRESENTATION/APPEARANCE. THE  COURT  MAY  REQUIRE  THE  PROPOSED
   20  VISITEE, OR THE PROPOSED VISITEE'S ATTORNEY TO APPEAR AT THE HEARING. IF
   21  THE  PROPOSED VISITEE DOES NOT HAVE AN ATTORNEY, THE COURT SHALL APPOINT
   22  AN ATTORNEY TO REPRESENT THE PROPOSED VISITEE'S INTERESTS.
   23    (E) THE COURT SHALL SCHEDULE AN EVIDENTIARY HEARING WITHIN SIXTY  DAYS
   24  FROM  THE DATE THAT THE PETITION IS FILED. THE COURT MAY GRANT A CONTIN-
   25  UANCE OF THE HEARING FOR GOOD CAUSE.
   26    (F) THE RESPONDENT AND THE PROPOSED VISITEE SHALL EACH  BE  PERSONALLY
   27  SERVED  WITH  A  COPY OF THE PETITION FOR VISITATION ORDER AND NOTICE OF
   28  THE HEARING AT LAST TWENTY-ONE DAYS BEFORE THE HEARING DATE.
   29    (G) THE NOTICE OF THE HEARING SHALL NOTIFY THE  PROPOSED  VISITEE  AND
   30  THE RESPONDENT THAT FOLLOWING THE HEARING, THE COURT MAY MAKE ORDERS NOT
   31  TO  EXCEED  FIVE  YEARS FROM THE HEARING DATE. THE NOTICE OF THE HEARING
   32  SHALL ALSO NOTIFY THE PROPOSED VISITEE WHETHER THE COURT  REQUIRES  THAT
   33  THE  PROPOSED  VISITEE  APPEAR  AT  THE HEARING, AND HOW TO REQUEST THAT
   34  COUNSEL BE APPOINTED IF THE PROPOSED VISITEE IS UNABLE TO  RETAIN  COUN-
   35  SEL.
   36    (H)  THE  RESPONDENT  MAY  FILE  AND SERVE A RESPONSE THAT EXPLAINS OR
   37  DENIES THE ALLEGED ISOLATION AT LEAST TEN DAYS BEFORE THE HEARING DATE.
   38    (I) THE COURT MAY, IN ITS DISCRETION, AWARD THE  PREVAILING  PARTY  IN
   39  ANY  ACTION  BROUGHT UNDER THIS SECTION COURT COSTS AND ATTORNEY'S FEES,
   40  IF ANY. IN NO EVENT, SHALL THE PROPOSED VISITEE BY REQUIRED TO  PAY  THE
   41  COURT  COSTS OR ATTORNEY'S FEES OF EITHER THE PREVAILING OR NON-PREVAIL-
   42  ING PARTY.
   43    S 4. This act shall take effect immediately.