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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3772
SPONSOR: Weinstein (MS) TITLE OF BILL:
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
PURPOSE OF BILL:
This legislation would prevent the use of the guardianship law for the
primary purpose of bill collection and would correct erroneous cross
references to the power of attorney law.
SUMMARY OF PROVISIONS OF BILL:
SECTION 1 of the bill amends subdivision (e) of Section 81.03 of the
mental hygiene law to expand the list of available resources, people who
would be served notice of a guardianship petition including family
members, people granted legal authority to manage the personal, medical
and/or financial affairs of the alleged incapacitated person and persons
or entities that have demonstrated a genuine interest in promoting the
best interests of the alleged incapacitated person (MP).
SECTION 2 of the bill amends paragraph 7 of subdivision (a) of Section
81.06 of the mental hygiene law to prevent nursing homes from filing
guardianship petitions where the petition is brought primarily for
purposes of bill collection or resolving a bill collection dispute.
However, where there is no other legally authorized or available
resource, hospitals or nursing homes may commence a guardianship where a
guardian is needed to facilitate planning necessary to establish the
AIP's Medicaid eligibility.
SECTION 4 of the bill amends paragraph 14, of subdivision (a) of
section 81.08 of the mental hygiene law to require the petitioner to
provide information about the steps take to identify available
resources, along with an explanation for why such resources are not
sufficient or reliable to meet the AIP's needs without the appointment
of a guardian.
SECTION 5 of the bill amends subdivision (a) of section 81.08 of the
mental hygiene law by renumbering paragraph 15 and adding new paragraphs
15, 16 and 17 that enhance the pleading requirements of a guardianship
petition relating to available resources considered. The new paragraphs
require the petitioner to provide information to the court about the
available guardianship resources considered by the petitioner, informa-
tion about any documents known to the petitioner that grant such
resources legal authority to manage the affairs of the AIP, where rele-
vant, specific reasons for seeking revocation of any appointments or
delegations made by the AIP, and a verification that the petition is not
brought for the purpose of bill collection or to resolve a bill
collection dispute.
SECTION 8 of the bill amends subdivision (e) of section 81.19 of the
mental hygiene law to preclude persons or corporations whose only inter-
est in the AIP is that of a creditor or those who provide day care,
health care, educational or residential services to the AIP from serving
as guardians.
SECTIONS 3, 6, 7, 9 AND 10 of the bill amend sections 81.09, 81.19,
81.22 and 81.29 to fix erroneous cross-references to the power of attor-
ney law that was modified in 2008.
SECTION 11 of the bill provides for an effective date of 180 days
after enactment.
JUSTIFICATION:
A recent article published in the New York Times, "To Collect Debts,
Nursing Homes Are Seizing Control Over Patients", January 25, 2015 high-
lighted a disturbing practice where some nursing homes are filing guar-
dianship petitions against vulnerable disabled nursing home residents,
over the objection of family members, primarily as a means of bill
collection. The article details how a nursing home appears to have filed
a guardianship petition against a resident of the facility suffering
from dementia, primarily for the purpose of resolving a bill collection
dispute. The petition was filed over the objections of the resident's
husband who had power of attorney and a health care proxy. Ultimately
the nursing home withdrew the petition, but the husband had to spend a
significant amount of money to challenge the petition and to assert his
legal rights.
Guardianship transfers an incapacitated person's legal rights to make
financial and personal care decisions to someone appointed by the court.
Guardianship petitions are generally filed by family members to help
them meet the personal or property management needs of an incapacitated
relative. The guardianship statue was enacted in 1993 by the legislature
to protect disabled individuals who are unable to manage their affairs
on their own because of incapacity and to help meet their needs in a
manner that affords them the greatest amount of independence and self-
determination in all decisions affecting their lives.
However, it appears that nursing homes have been increasingly using
these petitions to collect unpaid bills or to coerce settlement of bill
disputes with residents. According to a study done by researchers at
Hunter College, over twelve percent of guardianship petitions filed in
Manhattan over the last decade were brought by nursing homes against
their residents. While some of these cases may have had legitimate
purposes, there is significant concern that many of these cases were
likely used as a means to collect bills.
One judge has ruled this misuse of the guardianship statute - Article 81
of the mental hygiene law - as an abuse of the law. See
IN RE G.S.,
17 Misc. 3d 303, 841 N.Y.S.2d 428 (Sup.Ct.2007). Even if the petition is
ultimately unsuccessful, the mere filing causes the family to spend
significant sums of money for legal representation to defend against a
stranger being appointed a guardian of a loved one. As a result, fami-
lies may agree to settle bill disputes with a nursing home facility in
exchange for discontinuance or withdrawal of the guardianship petition.
We have also heard concerns from disability advocates that nursing homes
may also refuse to recognize the legal rights of relatives under health
care proxies or powers of attorney.
This proposal would help ensure that nursing home facilities do not file
guardianship petitions primarily as a means of resolving bill disputes.
The proposal would still permit hospitals or nursing homes to commence
guardianship actions to help meet the needs of an incapacitated person
e.g. to facilitate discharge planning or to assist the person with
becoming Medicaid-eligible.
The proposal will also dissuade such facilities from circumventing the
intent of the incapacitated person by making it harder for them to deny,
without legitimate basis, the legal rights of relatives, friends or
others with lawfully executed appointments or delegations made by the
alleged incapacitated person to meet his/her needs.
LEGISLATIVE HISTORY:
2021: A.2536/S.3523-A - A. Cal./S. Mental Health
2021: A.2536/S.3523-A - PA/S. Mental Health
2020: A.5609/S.4722 - PA/S. Mental Health
2019: A.5609/S.4722 - A_ Judi/S. Rules
2017-18: A.1350-A/S.4083-A - A.Codes/S. Mental Health
2016: A.6510-A/S .4642-A - PA/S .Mental Health
2015: A.6510-A/S.4642-A - PA/S.Rules
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take affect on the one hundred eightieth day after it
shall have become law.
STATE OF NEW YORK
________________________________________________________________________
3772
2023-2024 Regular Sessions
IN ASSEMBLY
February 8, 2023
___________
Introduced by M. of A. WEINSTEIN, ZEBROWSKI, SEAWRIGHT, TAYLOR --
Multi-Sponsored by -- M. of A. GLICK -- 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 § 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.
LBD00063-01-3
A. 3772 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:
A. 3772 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. Effective immediately, any rules and
36 regulations necessary to implement the provisions of this act on its
37 effective date are authorized to be made and completed on or before such
38 effective date.
