S04983 Summary:

BILL NOS04983
 
SAME ASNo Same As
 
SPONSORORTT
 
COSPNSRADDABBO, HAMILTON
 
MLTSPNSR
 
Rpld S1750-a, amd SCPA, generally
 
Relates to guardianship and health care decisions of persons with developmental disabilities; repeals certain provisions of such law relating thereto.
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S04983 Actions:

BILL NOS04983
 
04/27/2015REFERRED TO JUDICIARY
01/06/2016REFERRED TO JUDICIARY
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S04983 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4983
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                     April 27, 2015
                                       ___________
 
        Introduced  by  Sen.  ORTT  -- (at request of the Office for People with
          Developmental Disabilities) -- read twice  and  ordered  printed,  and
          when printed to be committed to the Committee on Judiciary
 
        AN  ACT  to  amend  the  surrogate's court procedure act, in relation to
          guardianship and health care decisions of persons  with  developmental
          disabilities;  and  to  repeal certain provisions of such law relating
          thereto
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section  1750  of the surrogate's court procedure act, as
     2  amended by chapter 500 of the laws  of  2002,  is  amended  to  read  as
     3  follows:
     4  § 1750. Guardianship  of  [mentally retarded] persons with developmental
     5            disabilities
     6    1. When it shall appear to the satisfaction of the court that a person
     7  is a [mentally retarded] person with a developmental  disability  within
     8  the  meaning  of  subdivision  twenty-two  of section 1.03 of the mental
     9  hygiene law and that such person, as  a  result  of  such  developmental
    10  disability, exhibits significant impairment of general or specific areas
    11  of  intellectual  functioning  and/or  adaptive  behaviors  in specified
    12  domains as enumerated in subdivision eight of section seventeen  hundred
    13  fifty-two of this article, the court is authorized to appoint a guardian
    14  of  the  person  or  of the property or of both if such appointment of a
    15  guardian or guardians is in the best interest of the [mentally retarded]
    16  person with a developmental disability. Such appointment shall  be  made
    17  pursuant  to  the provisions of this article[, provided however that the
    18  provisions of section seventeen hundred fifty-a of  this  article  shall
    19  not  apply  to  the appointment of a guardian or guardians of a mentally
    20  retarded person].
    21    [1.  For the purposes of this article, a mentally retarded person is a
    22  person who has been certified by one licensed physician and one licensed

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09619-02-5

        S. 4983                             2

     1  psychologist, or by two licensed physicians at  least  one  of  whom  is
     2  familiar with or has professional knowledge in the care and treatment of
     3  persons  with  mental  retardation,  having  qualifications to make such
     4  certification, as being incapable to manage him or herself and/or his or
     5  her  affairs  by reason of mental retardation and that such condition is
     6  permanent in nature or likely to continue indefinitely.]
     7    2. Every guardianship entered into pursuant to this article  prior  to
     8  the  effective  date  of  this subdivision, including orders and decrees
     9  pursuant to section seventeen hundred fifty-seven of this article, shall
    10  remain in full force and effect thereafter, except as  amended  pursuant
    11  to section seventeen hundred fifty-five of this article or as ordered by
    12  the  court;  and  any such guardianship shall be administered consistent
    13  with the substantive and procedural requirements set forth in this arti-
    14  cle.
    15    [2.] 3. Every [such certification pursuant to subdivision one of  this
    16  section,]  order  and decree made on or after the effective date of this
    17  subdivision, shall include a specific determination by  [such  physician
    18  and psychologist, or by such physicians,] the issuing court as to wheth-
    19  er  the  [mentally  retarded] person with a developmental disability has
    20  the capacity to make health care decisions, as  defined  by  subdivision
    21  three  of  section  twenty-nine hundred eighty of the public health law,
    22  for himself or herself. A determination  that  the  [mentally  retarded]
    23  person  with  a developmental disability has the capacity to make health
    24  care decisions shall not preclude the appointment of a guardian pursuant
    25  to this section to make other  decisions  on  behalf  of  the  [mentally
    26  retarded]  person  with  a developmental disability. The absence of this
    27  determination in the case of guardians appointed prior to [the effective
    28  date of this subdivision] March 16, 2003, shall not preclude such guard-
    29  ians from making health care decisions. Further, guardians appointed  by
    30  orders  and/or decrees issued prior to the effective date of this subdi-
    31  vision shall have authority in all areas, unless otherwise stated.
    32    § 2.  Section  1750-a  of  the  surrogate's  court  procedure  act  is
    33  REPEALED.
    34    §  3.  Section 1750-b of the surrogate's court procedure act, as added
    35  by chapter 500 of the laws of 2002, subdivision 1 as amended by  chapter
    36  105  of  the laws of 2007, the opening paragraph, paragraphs (a) and (b)
    37  of subdivision 1 and the opening paragraph of subdivision 4  as  amended
    38  by  chapter 8 of the laws of 2010, subparagraph (i) of paragraph (a) and
    39  clause A of subparagraph (i)  of  paragraph  (e)  of  subdivision  4  as
    40  amended  by  section 18 of part J of chapter 56 of the laws of 2012, and
    41  paragraph (d) of subdivision 5 as added by chapter 262 of  the  laws  of
    42  2008, is amended to read as follows:
    43  § 1750-b. Health  care  decisions  for  [mentally retarded] persons with
    44              developmental disabilities
    45    1. Scope of authority. As used in this  section,  the  term  "develop-
    46  mental  disability"  is  as defined by subdivision twenty-two of section
    47  1.03 of the mental hygiene law. Unless specifically  prohibited  by  the
    48  court  after  consideration  of  [the determination, if any, regarding a
    49  mentally retarded person's] a person with a  developmental  disability's
    50  capacity  to  make  health  care decisions, which is required by section
    51  seventeen hundred fifty of this article, the  guardian  of  such  person
    52  appointed  pursuant  to  section seventeen hundred fifty of this article
    53  shall have the authority to make any and all health care  decisions,  as
    54  defined  by subdivision six of section twenty-nine hundred eighty of the
    55  public health law, on behalf of the [mentally retarded]  person  with  a
    56  developmental  disability that such person could make if such person had

        S. 4983                             3
 
     1  capacity. Such decisions may include decisions to withhold  or  withdraw
     2  life-sustaining  treatment. For purposes of this section, "life-sustain-
     3  ing treatment" means medical treatment, including cardiopulmonary resus-
     4  citation and nutrition and hydration provided by means of medical treat-
     5  ment, which is sustaining life functions and without which, according to
     6  reasonable  medical  judgment,  the patient will die within a relatively
     7  short time period. Cardiopulmonary resuscitation is presumed to be life-
     8  sustaining treatment without the necessity of a medical judgment  by  an
     9  attending  physician. The provisions of this article are not intended to
    10  permit or promote suicide, assisted suicide or euthanasia;  accordingly,
    11  nothing  in  this  section  shall  be  construed to permit a guardian to
    12  consent to any act or omission to which the [mentally  retarded]  person
    13  with  a  developmental  disability  could not consent if such person had
    14  capacity.
    15    (a) For the purposes of making a  decision  to  withhold  or  withdraw
    16  life-sustaining  treatment  pursuant  to  this section, in the case of a
    17  person for whom no guardian  has  been  appointed  pursuant  to  section
    18  seventeen  hundred fifty [or seventeen hundred fifty-a] of this article,
    19  a "guardian" shall also mean a family member of a person  who  [(i)  has
    20  mental  retardation, or (ii)] has a developmental disability, as defined
    21  in subdivision twenty-two of section 1.03 of  the  mental  hygiene  law,
    22  [which  (A)  includes  mental  retardation,  or (B) results in a similar
    23  impairment of general intellectual functioning or adaptive  behavior  so
    24  that such person is incapable of managing himself or herself, and/or his
    25  or her affairs by reason of such developmental disability] and that such
    26  person,  as  a result of such developmental disability, exhibits signif-
    27  icant impairment of general or specific areas of intellectual  function-
    28  ing  and/or  adaptive  behaviors  in  specified domains as enumerated in
    29  subdivision  eight  of  section  seventeen  hundred  fifty-two  of  this
    30  article.    Qualified  family members shall be included in a prioritized
    31  list of said family members pursuant to regulations established  by  the
    32  commissioner  of  [mental  retardation  and] developmental disabilities.
    33  Such family members must have a significant and ongoing involvement in a
    34  person's life so as to have sufficient knowledge  of  their  needs  and,
    35  when  reasonably  known or ascertainable, the person's wishes, including
    36  moral and religious beliefs. In the case of a person who was a  resident
    37  of  the  former  Willowbrook state school on March seventeenth, nineteen
    38  hundred seventy-two and those individuals who  were  in  community  care
    39  status  on  that  date  and  subsequently  returned  to Willowbrook or a
    40  related facility, who are fully represented  by  the  consumer  advisory
    41  board  and  who  have no guardians appointed pursuant to this article or
    42  have no qualified family members to make such a decision, then a "guard-
    43  ian" shall also mean the Willowbrook consumer advisory board. A decision
    44  of such family member or the  Willowbrook  consumer  advisory  board  to
    45  withhold  or  withdraw life-sustaining treatment shall be subject to all
    46  of the protections, procedures and safeguards which apply to  the  deci-
    47  sion  of  a  guardian  to withhold or withdraw life-sustaining treatment
    48  pursuant to this section.
    49    In the case of a person for whom no guardian has been appointed pursu-
    50  ant to this article or for whom there is no qualified family  member  or
    51  the  Willowbrook  consumer advisory board available to make such a deci-
    52  sion, a "guardian" shall also mean, notwithstanding the  definitions  in
    53  section  80.03  of  the  mental hygiene law, a surrogate decision-making
    54  committee, as defined in article eighty of the mental hygiene  law.  All
    55  declarations  and  procedures, including expedited procedures, to comply
    56  with this section shall be established by regulations promulgated by the

        S. 4983                             4
 
     1  [commission on quality of care and advocacy for persons  with  disabili-
     2  ties] justice center for the protection of people with special needs, as
     3  established by article twenty of the executive law.
     4    (b)  Regulations establishing the prioritized list of qualified family
     5  members required by paragraph (a) of this subdivision shall be developed
     6  by the commissioner of [mental retardation and] developmental  disabili-
     7  ties  in  conjunction  with  parents,  advocates  and  family members of
     8  persons [who are mentally  retarded]  with  developmental  disabilities.
     9  Regulations to implement the authority of the Willowbrook consumer advi-
    10  sory  board pursuant to paragraph (a) of this subdivision may be promul-
    11  gated by the commissioner of the  office  of  [mental  retardation  and]
    12  developmental  disabilities  with  advice  from the Willowbrook consumer
    13  advisory board.
    14    (c) Notwithstanding any provision of law to the contrary,  the  formal
    15  determinations  required  pursuant to section seventeen hundred fifty of
    16  this article shall only apply to guardians appointed pursuant to section
    17  seventeen hundred fifty [or seventeen hundred fifty-a] of this article.
    18    2. Decision-making standard. (a) The guardian shall base all  advocacy
    19  and  health  care  decision-making  solely  and  exclusively on the best
    20  interests of the [mentally retarded] person with a  developmental  disa-
    21  bility and, when reasonably known or ascertainable with reasonable dili-
    22  gence,  on [the mentally retarded] such person's wishes, including moral
    23  and religious beliefs.
    24    (b) An assessment of the [mentally retarded person's]  person  with  a
    25  developmental  disability's  best  interests shall include consideration
    26  of:
    27    (i) the dignity and uniqueness of every person;
    28    (ii) the preservation, improvement or  restoration  of  the  [mentally
    29  retarded person's] person with a developmental disability's health;
    30    (iii)  the  relief  of  the [mentally retarded person's] person with a
    31  developmental disability's suffering by means  of  palliative  care  and
    32  pain management;
    33    (iv)  the  unique  nature  of  [artificially  provided]  nutrition  or
    34  hydration provided by means of medical treatment, and the effect it  may
    35  have  on the [mentally retarded] person with a developmental disability;
    36  and
    37    (v) the entire medical condition of the person.
    38    (c) No health care decision shall be influenced in any way by:
    39    (i) a presumption that persons with [mental retardation] developmental
    40  disabilities are not entitled  to  the  full  and  equal  rights,  equal
    41  protection,  respect, medical care and dignity afforded to persons with-
    42  out [mental retardation or] developmental disabilities; or
    43    (ii) financial considerations of the guardian, as such  considerations
    44  affect the guardian, a health care provider or any other party.
    45    3. Right to receive information. Subject to the provisions of sections
    46  33.13  and  33.16 of the mental hygiene law, the guardian shall have the
    47  right to receive  all  medical  information  and  medical  and  clinical
    48  records  necessary  to  make  informed decisions regarding the [mentally
    49  retarded person's] person with a developmental disability's health care.
    50    4. Life-sustaining treatment. The guardian shall have the  affirmative
    51  obligation  to advocate for the full and efficacious provision of health
    52  care, including life-sustaining treatment. In the event that a  guardian
    53  makes  a decision to withdraw or withhold life-sustaining treatment from
    54  a [mentally retarded] person with a developmental disability:
    55    (a) The attending physician, as defined in subdivision two of  section
    56  twenty-nine  hundred  eighty of the public health law, must confirm to a

        S. 4983                             5
 
     1  reasonable degree of medical  certainty  that  the  [mentally  retarded]
     2  person  with  a  developmental  disability lacks capacity to make health
     3  care decisions. The determination  thereof  shall  be  included  in  the
     4  [mentally  retarded  person's]  person with a developmental disability's
     5  medical record, and shall contain  such  attending  physician's  opinion
     6  regarding the cause and nature of the [mentally retarded] person's inca-
     7  pacity as well as its extent and probable duration. The attending physi-
     8  cian who makes the confirmation shall consult with another physician, or
     9  a  [licensed]  psychologist,  to further confirm the [mentally retarded]
    10  person's lack of capacity. The attending physician who makes the confir-
    11  mation, or the physician or licensed psychologist with whom the  attend-
    12  ing physician consults, must (i) be employed by a developmental disabil-
    13  ities  services  office named in section 13.17 of the mental hygiene law
    14  or employed by the office for people with developmental disabilities  to
    15  provide treatment and care to people with developmental disabilities, or
    16    (ii)  have been employed for a minimum of two years to render care and
    17  service in a facility or program operated, licensed or authorized by the
    18  office [of mental retardation and] for people with  developmental  disa-
    19  bilities, or
    20    (iii)  have  been  approved by the commissioner of [mental retardation
    21  and] developmental disabilities in accordance with  regulations  promul-
    22  gated by such commissioner. Such regulations shall require that a physi-
    23  cian  or  licensed  psychologist  possess  specialized training or three
    24  years experience in treating [mental retardation] people  with  develop-
    25  mental  disabilities. A record of such consultation shall be included in
    26  the [mentally retarded person's] person with a  developmental  disabili-
    27  ty's medical record.
    28    (b)  The attending physician, as defined in subdivision two of section
    29  twenty-nine hundred eighty of the public health law,  with  the  concur-
    30  rence  of  another  physician  with  whom such attending physician shall
    31  consult, must determine to a reasonable degree of medical certainty  and
    32  note  on  the  [mentally  retarded person's] person with a developmental
    33  disability's chart that:
    34    (i) the [mentally retarded] person has a medical condition as follows:
    35    A. a terminal condition, as defined  in  subdivision  twenty-three  of
    36  section twenty-nine hundred sixty-one of the public health law; or
    37    B. permanent unconsciousness; or
    38    C.  a  medical condition other than such person's [mental retardation]
    39  developmental disability which requires  life-sustaining  treatment,  is
    40  irreversible and which will continue indefinitely; and
    41    (ii)  the  life-sustaining  treatment  would  impose  an extraordinary
    42  burden on such person, in light of:
    43    A. such person's medical condition, other than such  person's  [mental
    44  retardation] developmental disability; and
    45    B.  the  expected  outcome  of the life-sustaining treatment, notwith-
    46  standing such person's [mental  retardation]  developmental  disability;
    47  and
    48    (iii)  in  the case of a decision to withdraw or withhold artificially
    49  provided nutrition or hydration:
    50    A. there is no reasonable hope of maintaining life; or
    51    B. the artificially provided nutrition or hydration poses an  extraor-
    52  dinary burden.
    53    (c)  The  guardian  shall  express  a decision to withhold or withdraw
    54  life-sustaining treatment either:
    55    (i) in writing, dated and signed in the presence of one witness  eigh-
    56  teen years of age or older who shall sign the decision, and presented to

        S. 4983                             6
 
     1  the  attending physician, as defined in subdivision two of section twen-
     2  ty-nine hundred eighty of the public health law; or
     3    (ii)  orally,  to two persons eighteen years of age or older, at least
     4  one of whom is the [mentally retarded person's] person with  a  develop-
     5  mental  disability's  attending physician, as defined in subdivision two
     6  of section twenty-nine hundred eighty of the public health law.
     7    (d) The attending physician, as defined in subdivision two of  section
     8  twenty-nine  hundred  eighty  of  the public health law, who is provided
     9  with the decision of a  guardian  shall  include  the  decision  in  the
    10  [mentally  retarded  person's]  person with a developmental disability's
    11  medical chart, and shall either:
    12    (i) promptly issue an order to withhold  or  withdraw  life-sustaining
    13  treatment  from  the  [mentally  retarded]  person, and inform the staff
    14  responsible for such person's care, if any, of the order; or
    15    (ii) promptly object to such decision, in accordance with  subdivision
    16  five of this section.
    17    (e)  At least forty-eight hours prior to the implementation of a deci-
    18  sion to withdraw life-sustaining treatment, or at the earliest  possible
    19  time prior to the implementation of a decision to withhold life-sustain-
    20  ing treatment, the attending physician shall notify:
    21    (i)  the  [mentally  retarded] person with a developmental disability,
    22  except if the attending physician determines, in writing and in  consul-
    23  tation  with  another  physician  or a licensed psychologist, that, to a
    24  reasonable degree of medical certainty, the person would suffer  immedi-
    25  ate  and  severe  injury from such notification. The attending physician
    26  who makes the confirmation, or the physician  or  licensed  psychologist
    27  with whom the attending physician consults, shall:
    28    A.  be  employed by a developmental disabilities services office named
    29  in section 13.17 of the mental hygiene law or employed by the office for
    30  people with developmental disabilities to provide treatment and care  to
    31  people with developmental disabilities, or
    32    B.  have  been  employed for a minimum of two years to render care and
    33  service in a facility operated, licensed or authorized by the office [of
    34  mental retardation and] for people with developmental disabilities, or
    35    C. have been approved by the commissioner of [mental retardation  and]
    36  developmental disabilities in accordance with regulations promulgated by
    37  such  commissioner.  Such  regulations shall require that a physician or
    38  licensed psychologist possess specialized training or three years  expe-
    39  rience  in  treating  mental  retardation. A record of such consultation
    40  shall be included in the [mentally retarded] person's medical record;
    41    (ii) if the person is in or was transferred from a residential facili-
    42  ty operated, licensed or authorized by the office [of mental retardation
    43  and] for people with developmental  disabilities,  the  chief  executive
    44  officer  of  the  agency or organization operating such facility and the
    45  mental hygiene legal service; and
    46    (iii) if the person is not in and was  not  transferred  from  such  a
    47  facility or program, the commissioner of [mental retardation and] devel-
    48  opmental disabilities, or his or her designee.
    49    5.  Objection  to  health care decision. (a) Suspension. A health care
    50  decision made pursuant to subdivision four  of  this  section  shall  be
    51  suspended,  pending  judicial  review, except if the suspension would in
    52  reasonable medical judgment be likely to result  in  the  death  of  the
    53  [mentally retarded] person with a developmental disability, in the event
    54  of an objection to that decision at any time by:
    55    (i)  the  [mentally retarded] person on whose behalf such decision was
    56  made; or

        S. 4983                             7
 
     1    (ii) a parent or adult sibling who either resides with  or  has  main-
     2  tained  substantial  and continuous contact with the [mentally retarded]
     3  person; or
     4    (iii)  the  attending  physician,  as  defined  in  subdivision two of
     5  section twenty-nine hundred eighty of the public health law; or
     6    (iv) any other health care  practitioner  providing  services  to  the
     7  [mentally  retarded]  person  with  a  developmental  disability, who is
     8  licensed pursuant to article one hundred thirty-one, one  hundred  thir-
     9  ty-one-B,  one hundred thirty-two, one hundred thirty-three, one hundred
    10  thirty-six, one hundred thirty-nine, one hundred forty-one, one  hundred
    11  forty-three,  one  hundred  forty-four,  one  hundred  fifty-three,  one
    12  hundred fifty-four, one hundred fifty-six, one hundred fifty-nine or one
    13  hundred sixty-four of the education law; or
    14    (v) the chief executive officer identified  in  subparagraph  (ii)  of
    15  paragraph (e) of subdivision four of this section; or
    16    (vi) if the person is in or was transferred from a residential facili-
    17  ty  or  program  operated, approved or licensed by the office [of mental
    18  retardation and] for people with developmental disabilities, the  mental
    19  hygiene legal service; or
    20    (vii)  if  the  person  is  not in and was not transferred from such a
    21  facility or program, the commissioner of [mental retardation and] devel-
    22  opmental disabilities, or his or her designee.
    23    (b) Form of objection. Such objection shall occur orally or  in  writ-
    24  ing.
    25    (c)  Notification.  In  the  event  of the suspension of a health care
    26  decision pursuant to this subdivision, the objecting party shall prompt-
    27  ly notify the guardian and the other parties identified in paragraph (a)
    28  of this subdivision, and  the  attending  physician  shall  record  such
    29  suspension  in  the  [mentally retarded person's] person with a develop-
    30  mental disability's medical chart.
    31    (d) Dispute mediation. In the event of an objection pursuant  to  this
    32  subdivision,  at  the request of the objecting party or person or entity
    33  authorized to act as a guardian under this section, except  a  surrogate
    34  decision  making committee established pursuant to article eighty of the
    35  mental hygiene law, such objection shall be referred to a dispute  medi-
    36  ation  system, established pursuant to section two thousand nine hundred
    37  seventy-two of the public health law or  similar  entity  for  mediating
    38  disputes  in  a hospice, such as a patient's advocate's office, hospital
    39  chaplain's office or ethics  committee,  as  described  in  writing  and
    40  adopted  by  the  governing  authority  of such hospice, for non-binding
    41  mediation. In the event that such  dispute  cannot  be  resolved  within
    42  seventy-two  hours  or  no such mediation entity exists or is reasonably
    43  available for mediation of a dispute, the  objection  shall  proceed  to
    44  judicial review pursuant to this subdivision. The party requesting medi-
    45  ation  shall  provide  notification  to those parties entitled to notice
    46  pursuant to paragraph (a) of this subdivision.
    47    6. Special proceeding authorized. The guardian, the  attending  physi-
    48  cian,  as  defined  in  subdivision  two  of section twenty-nine hundred
    49  eighty of the public health law, the chief executive officer  identified
    50  in  subparagraph  (ii)  of  paragraph  (e)  of  subdivision four of this
    51  section, the mental hygiene legal service (if the person is  in  or  was
    52  transferred from a residential facility or program operated, approved or
    53  licensed  by  the  office  [of  mental  retardation and] for people with
    54  developmental disabilities) or the commissioner of  [mental  retardation
    55  and] developmental disabilities or his or her designee (if the person is
    56  not  in  and  was  not  transferred from such a facility or program) may

        S. 4983                             8
 
     1  commence a special proceeding in a court of competent jurisdiction  with
     2  respect  to  any dispute arising under this section, including objecting
     3  to the withdrawal or withholding of  life-sustaining  treatment  because
     4  such  withdrawal  or  withholding is not in accord with the criteria set
     5  forth in this section.
     6    7. Provider's obligations. (a) A health  care  provider  shall  comply
     7  with the health care decisions made by a guardian in good faith pursuant
     8  to  this  section, to the same extent as if such decisions had been made
     9  by the [mentally retarded] person with a  developmental  disability,  if
    10  such person had capacity.
    11    (b) Notwithstanding paragraph (a) of this subdivision, nothing in this
    12  section  shall  be  construed  to  require a private hospital to honor a
    13  guardian's health care decision that the hospital would not honor if the
    14  decision had been made by the [mentally retarded] person with a develop-
    15  mental disability, if such person had capacity, because the decision  is
    16  contrary  to a formally adopted written policy of the hospital expressly
    17  based on religious beliefs or sincerely held moral  convictions  central
    18  to  the  hospital's  operating  principles,  and  the  hospital would be
    19  permitted by law to refuse to honor the decision if made by such person,
    20  provided:
    21    (i) the hospital has informed the guardian of such policy prior to  or
    22  upon admission, if reasonably possible; and
    23    (ii) the [mentally retarded] person with a developmental disability is
    24  transferred  promptly  to another hospital that is reasonably accessible
    25  under the circumstances and is willing to honor the guardian's decision.
    26  If the guardian is unable or unwilling to arrange such a  transfer,  the
    27  hospital's  refusal  to honor the decision of the guardian shall consti-
    28  tute an objection pursuant to subdivision five of this section.
    29    (c) Notwithstanding paragraph (a) of this subdivision, nothing in this
    30  section shall be construed to require an individual health care provider
    31  to honor a guardian's health care decision that the individual would not
    32  honor if the decision had been made by the  [mentally  retarded]  person
    33  with  a  developmental  disability, if such person had capacity, because
    34  the decision is  contrary  to  the  individual's  religious  beliefs  or
    35  sincerely  held  moral  convictions, provided the individual health care
    36  provider promptly informs the guardian and the facility, if any, of  his
    37  or  her  refusal  to  honor  the guardian's decision. In such event, the
    38  facility  shall  promptly  transfer  responsibility  for  the  [mentally
    39  retarded]  person  with a developmental disability to another individual
    40  health care provider willing to honor the guardian's decision. The indi-
    41  vidual health care provider shall cooperate in facilitating such  trans-
    42  fer of the patient.
    43    (d)  Notwithstanding  the  provisions  of  any other paragraph of this
    44  subdivision, if a guardian  directs  the  provision  of  life-sustaining
    45  treatment,  the  denial of which in reasonable medical judgment would be
    46  likely to result in the death of the [mentally retarded] person  with  a
    47  developmental  disability, a hospital or individual health care provider
    48  that does not wish to provide such treatment  shall  nonetheless  comply
    49  with  the  guardian's  decision  pending either transfer of the mentally
    50  retarded person to a willing hospital or individual health care  provid-
    51  er, or judicial review.
    52    (e)  Nothing in this section shall affect or diminish the authority of
    53  a surrogate decision-making panel to render  decisions  regarding  major
    54  medical treatment pursuant to article eighty of the mental hygiene law.
    55    8. Immunity. (a) Provider immunity. No health care provider or employ-
    56  ee  thereof  shall  be  subjected  to criminal or civil liability, or be

        S. 4983                             9
 
     1  deemed to have engaged in unprofessional conduct, for  honoring  reason-
     2  ably  and  in  good  faith  a health care decision by a guardian, or for
     3  other actions taken reasonably  and  in  good  faith  pursuant  to  this
     4  section.
     5    (b)  Guardian  immunity. No guardian shall be subjected to criminal or
     6  civil liability for making a health care decision reasonably and in good
     7  faith pursuant to this section.
     8    § 4. Section 1751 of the surrogate's court procedure act, as added  by
     9  chapter 675 of the laws of 1989, is amended to read as follows:
    10  § 1751. Petition for appointment; by whom made
    11    (a)  A  petition  for  the appointment of a guardian [of the person or
    12  property, or both,] of a [mentally retarded or developmentally disabled]
    13  person with a developmental disability pursuant to this article  may  be
    14  made  by  the person with a developmental disability when such person is
    15  eighteen years of age or older, a parent, spouse, sibling,  adult  child
    16  or  any other interested person eighteen years of age or older on behalf
    17  of the [mentally retarded or developmentally  disabled]  person  with  a
    18  developmental  disability including a corporation authorized to serve as
    19  a guardian as provided for by this article[, or by the mentally retarded
    20  or developmentally disabled person when such person is eighteen years of
    21  age or older].
    22    (b) A person with a developmental disability may knowingly and  volun-
    23  tarily  consent  to the appointment of a guardian pursuant to this arti-
    24  cle.
    25    § 5. The surrogate's court procedure act is amended by  adding  a  new
    26  section 1751-a to read as follows:
    27  § 1751-a. Petition for appointment; where made (venue)
    28    1. A proceeding under this article shall be brought in the surrogate's
    29  court  within  the county in which the person with a developmental disa-
    30  bility resides, or is physically present at the time the  proceeding  is
    31  commenced.  If  the person with a developmental disability alleged to be
    32  in need of a guardian is being cared for as a resident  in  a  facility,
    33  the  residence  of that person shall be deemed to be in the county where
    34  the facility is located and the proceeding  shall  be  brought  in  that
    35  county,  subject  to  application by an interested party for a change in
    36  venue to another county because of the inconvenience of the  parties  or
    37  witnesses  or  the  condition  of  the person alleged to be in need of a
    38  guardian.
    39    2. After the appointment of a guardian, any  proceeding  to  modify  a
    40  prior  order shall be brought in the surrogate's court which granted the
    41  prior order, unless at the time of the application to modify  the  order
    42  the  person  with a developmental disability resides elsewhere, in which
    43  case the proceeding shall be brought in the county where the person with
    44  a developmental disability resides, without the need  for  a  motion  to
    45  transfer venue.
    46    §  6. Section 1752 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  § 1752. Petition for appointment; contents
    49    The petition for the appointment of a guardian shall be filed with the
    50  court on forms to be prescribed by the state chief administrator of  the
    51  courts. Such petition for a guardian of a [mentally retarded or develop-
    52  mentally disabled] person with a developmental disability shall include,
    53  but not be limited to, the following information:
    54    1.  the  full  name,  date  of  birth  and  residence of the [mentally
    55  retarded or developmentally disabled] person with a developmental  disa-
    56  bility;

        S. 4983                            10
 
     1    2.  the  name,  age, address and relationship or interest of the peti-
     2  tioner to the [mentally retarded  or  developmentally  disabled]  person
     3  with a developmental disability;
     4    3. the names and addresses, if known, of the father, the mother, adult
     5  children,  adult  siblings  [if eighteen years of age or older,] and the
     6  spouse [and primary care physician if  other  than  a  physician  having
     7  submitted  a  certification with the petition, if any,] of the [mentally
     8  retarded or developmentally disabled] person with a developmental  disa-
     9  bility  and  whether  or  not  they  are  living,  and  if living, their
    10  addresses and the names and addresses of  the  nearest  distributees  of
    11  full age who are domiciliaries, if both parents are dead;
    12    4. the name and address of the person [with whom the mentally retarded
    13  or  developmentally disabled] caring for the person with a developmental
    14  disability, or with whom the  person  with  a  developmental  disability
    15  resides if other than the parents or spouse;
    16    5.  the  name  and  address of any person with significant and ongoing
    17  involvement in the life of the person with a developmental disability so
    18  as to have sufficient knowledge of their  needs,  if  such  persons  are
    19  known to the petitioner;
    20    6.  the  name,  age,  address, education and other qualifications, and
    21  consent of the proposed guardian, standby  and  alternate  guardian,  if
    22  other  than  the parent, spouse, adult child if eighteen years of age or
    23  older or adult sibling if eighteen years of age or older,  and  if  such
    24  parent,  spouse  or adult child be living, why any of them should not be
    25  appointed guardian;
    26    [6.] 7. the estimated value of real  and  personal  property  and  the
    27  annual  income  therefrom  and  any  other income including governmental
    28  entitlements to which the [mentally retarded  or  developmentally  disa-
    29  bled] person with a developmental disability is entitled; and
    30    [7.  any  circumstances which the court should consider in determining
    31  whether it is in the best interests of the mentally retarded or develop-
    32  mentally disabled person not be be present at the hearing if conducted.]
    33    8. an enumeration of the specific domains in which the person  with  a
    34  developmental  disability  is  alleged  to be in need of a guardian or a
    35  statement that full guardianship is  sought.  Specific  domains  may  be
    36  included which may include:
    37    (i)  consent  to or refusal to consent to health care or other profes-
    38  sional care;
    39    (ii) management of money or other income, assets or property;
    40    (iii) access to confidential and other sensitive information;
    41    (iv) choices involving education, training, employment,  supports  and
    42  services;
    43    (v) requesting advocacy, legal or other professional services;
    44    (vi) choice of residence and shared living arrangements;
    45    (vii) choices as to social and recreational activity;
    46    (viii) decisions concerning travel; and
    47    (ix)  application  for  government-sponsored  or private insurance and
    48  benefits.
    49    9. a statement of the alternatives to guardianship considered, includ-
    50  ing but not limited to the execution of a health care  proxy,  power  of
    51  attorney,  representative  payee,  service  coordination,  and/or  other
    52  social support services, other available supported  or  shared  decision
    53  making,  and  surrogate  decision-making  committee, and reasons for the
    54  declination of such alternatives.
    55    § 7. Section 1753 of the surrogate's court procedure act, as added  by
    56  chapter 675 of the laws of 1989, is amended to read as follows:

        S. 4983                            11
 
     1  § 1753. Persons to be served and noticed
     2    1.  Upon  [presentation]  filing  of the petition, process shall issue
     3  to[:
     4    (a) the parent or parents, adult children, if the petitioner is  other
     5  than a parent, adult siblings, if the petitioner is other than a parent,
     6  and  if  the  mentally  retarded  or  developmentally disabled person is
     7  married, to the spouse, if their residences are known;
     8    (b) the person having care and custody of  the  mentally  retarded  or
     9  developmentally  disabled  person,  or  with whom such person resides if
    10  other than the parents or spouse; and
    11    (c) the mentally retarded or developmentally disabled person if  four-
    12  teen years of age or older for whom an application has been made in such
    13  person's behalf.
    14    2. Upon presentation of the petition, notice of such petition shall be
    15  served by certified mail to:
    16    (a)  the adult siblings if the petitioner is a parent, and adult chil-
    17  dren if the petitioner is a parent;
    18    (b) the mental hygiene legal service in the judicial department  where
    19  the  facility,  as  defined  in  subdivision (a) of section 47.01 of the
    20  mental hygiene law, is located if  the  mentally  retarded  or  develop-
    21  mentally disabled person resides in such a facility;
    22    (c)  in all cases, to the director in charge of a facility licensed or
    23  operated by an agency of the state of New York, if the mentally retarded
    24  or developmentally disabled person resides in such facility;
    25    (d) one other person if designated in writing by the mentally retarded
    26  or developmentally disabled person; and
    27    (e) such other persons as the court may deem proper.] the person  with
    28  a  developmental disability, if petitioner is other than the person with
    29  a developmental disability alleged to be in need of a guardian.
    30    2. Upon filing of the petition, notice of the petition shall  be  sent
    31  by certified mail, return receipt requested to the last known address of
    32  the:
    33    (a)  parents, spouse, adult children, and adult siblings of the person
    34  alleged to be in need of the guardian;
    35    (b) individuals listed in the petition pursuant to  section  seventeen
    36  hundred fifty-two of this article and subdivisions four and five of this
    37  section;
    38    (c)  mental hygiene legal service in the judicial department where the
    39  person with a developmental disability resides;
    40    (d) the director in charge of a facility licensed or  operated  by  an
    41  agency  of  the  state  of  New York, if the person with a developmental
    42  disability resides in such facility;
    43    (e) any other person if designated in writing by  the  person  with  a
    44  developmental disability; and
    45    (f) such other persons as the court may deem proper.
    46    3. Within five days of the filing of the petition, a full copy of said
    47  petition  shall  be served by certified mail to the mental hygiene legal
    48  service in the judicial department in which the petition  was  filed.  A
    49  copy of proof of mailing shall be thereafter filed with the court.
    50    4.  For  petitions  to  modify  an  existing  guardianship pursuant to
    51  section seventeen hundred fifty-five of this article and/or to appoint a
    52  standby guardian pursuant to subdivision seventeen  hundred  fifty-seven
    53  of  this  article, written notice must be given to all standby guardians
    54  currently in succession for a person with a developmental disability who
    55  is the subject of the petition.

        S. 4983                            12
 
     1    5. No process or notice shall be necessary to [a parent, adult  child,
     2  adult  sibling,  or  spouse  of the mentally retarded or developmentally
     3  disabled person who has been declared by a court as  being  incompetent.
     4  In  addition, no process or notice shall be necessary to a spouse who is
     5  divorced  from the mentally retarded or developmentally disabled person,
     6  and to a parent, adult child, adult sibling when it shall appear to  the
     7  satisfaction of the court that such person or persons have abandoned the
     8  mentally retarded or developmentally disabled person] any individual who
     9  cannot, after due diligence, reasonably be located. The petitioner shall
    10  submit an affidavit to such effect.
    11    §  8. Section 1754 of the surrogate's court procedure act, as added by
    12  chapter 675 of the laws of 1989, is amended to read as follows:
    13  § 1754. [Hearing and trial] Proceedings upon petition
    14    1. Upon a petition for the appointment of a guardian  of  a  [mentally
    15  retarded  or developmentally disabled] person with a developmental disa-
    16  bility eighteen years of age or older, the court shall [conduct a  hear-
    17  ing  at  which such person shall have the right to jury trial. The right
    18  to a jury trial shall be deemed waived  by  failure  to  make  a  demand
    19  therefor.  The  court  may in its discretion dispense with a hearing for
    20  the appointment of a guardian, and may in its discretion appoint a guar-
    21  dian ad litem, or the mental hygiene legal service if such person  is  a
    22  resident  of  a mental hygiene facility as defined in subdivision (a) of
    23  section 47.01 of the  mental  hygiene  law,  to  recommend  whether  the
    24  appointment  of a guardian as proposed in the application is in the best
    25  interest of the mentally retarded or  developmentally  disabled  person,
    26  provided however, that such application has been made by:
    27    (a) both parents or the survivor; or
    28    (b) one parent and the consent of the other parent; or
    29    (c)  any  interested party and the consent of each parent.], not later
    30  than forty-five days following the filing of proof of mailing  upon  the
    31  mental hygiene legal service, schedule an appearance in the matter.
    32    (a)  The  mental  hygiene  legal  service  shall ascertain whether the
    33  person with a developmental disability alleged to need  a  guardian  has
    34  any  objection  to  the  relief  sought  in the petition and whether the
    35  service is able to represent the interests of the person in the proceed-
    36  ing.
    37    (b) If the service reports that the person with a developmental  disa-
    38  bility  alleged  to  need a guardian objects to the relief sought in the
    39  petition, the court shall appoint the service as counsel for the person.
    40  If the service is not available to serve as the person's counsel and the
    41  person does not otherwise have counsel, the court shall appoint  counsel
    42  for the person from among attorneys eligible for such appointment pursu-
    43  ant to section thirty-five of the judiciary law.
    44    (c)  If the service reports that the person with a developmental disa-
    45  bility alleged to need a guardian does not object to  relief  sought  in
    46  the petition, the person's interests shall continue to be represented by
    47  the  service, if available, and the service shall conduct an examination
    48  into the allegations of fact contained in the petition and file with the
    49  court and serve no later than ten days prior to the appearance  date  an
    50  answer  confirming or denying the allegations in the petition and report
    51  as to whether the service finds grounds to object to the  relief  sought
    52  in  the  petition.    The  service  will otherwise perform its functions
    53  consistent with uniform regulations promulgated by the  appellate  divi-
    54  sion of the supreme court.
    55    (d)  If  a  person  with  a developmental disability alleged to need a
    56  guardian who does not object does not otherwise appear by the service or

        S. 4983                            13
 
     1  other counsel, the court shall appoint a guardian ad litem  pursuant  to
     2  this section and section four hundred three of this act. Any guardian ad
     3  litem  appointed pursuant to this section shall conduct an investigation
     4  into the allegations of fact contained in the petition and file with the
     5  court  and  serve no later than ten days prior to the appearance date, a
     6  report of its findings confirming or disconfirming said allegations, and
     7  if appropriate and upon consent of the person with a developmental disa-
     8  bility nominate a person or entity of the respondent's choosing to serve
     9  as guardian, as well as any other matter which could assist the  court's
    10  consideration  of  the  matter,  and serve a copy of the report upon the
    11  petitioner.
    12    (e) The service, any other counsel for the person with a developmental
    13  disability alleged to need a guardian, or  the  guardian  ad  litem  may
    14  apply  to  the  court  for  permission  to  inspect the clinical records
    15  pertaining to the person with a developmental disability alleged to need
    16  a guardian in accordance with state and federal laws. The  service,  any
    17  other  counsel  for  the  person with a developmental disability and the
    18  guardian ad litem, if any, shall be  afforded  access  to  the  person's
    19  clinical records without a court order to the extent that such access is
    20  otherwise authorized by state and federal laws.
    21    (f) The service, any other counsel for the person with a developmental
    22  disability  alleged  to  need  a guardian, and the guardian ad litem, if
    23  any, may request the court for further evaluation of  the  person  by  a
    24  physician,  psychiatrist  or  certified  psychologist. In the event that
    25  further evaluations  are  required,  the  court  may  grant  appropriate
    26  adjournments  of the initial appearance date and may direct, in the case
    27  of a person determined to be indigent, that any further court authorized
    28  evaluations be paid for out of funds available pursuant to section thir-
    29  ty-five of the judiciary law.
    30    2. [When it shall appear to the  satisfaction  of  the  court  that  a
    31  parent  or  parents not joining in or consenting to the application have
    32  abandoned the mentally retarded or developmentally  disabled  person  or
    33  are  not  otherwise  required  to receive notice, the court may dispense
    34  with such parent's consent in determining the need to conduct a  hearing
    35  for  a person under the age of eighteen. However, if the consent of both
    36  parents or the surviving parent is dispensed with by the court, a  hear-
    37  ing  shall  be  held  on  the application.] At the first appearance, the
    38  respondent shall be present unless such presence is excused by the court
    39  upon recommendation of the service, respondent's counsel, or the guardi-
    40  an ad litem if the respondent does  not  have  counsel.  The  petitioner
    41  shall also be present and may be represented by counsel. Any other party
    42  required to be served or noticed with process in the matter may be pres-
    43  ent.
    44    (a)  Prior to such appearance, the petitioner, either personally or by
    45  counsel, may confer with the service, respondent's counsel and the guar-
    46  dian ad litem if respondent does not have counsel and agree to amend any
    47  part of its petition and allegations of fact therein. Any  such  amended
    48  petition  shall  be  filed with the court prior to the date of the first
    49  appearance.
    50    (b) At the first appearance, the court shall examine the answer of the
    51  service, respondent's counsel, or the report of the guardian  ad  litem,
    52  if  any,  and may hear from the petitioner and the service, respondent's
    53  counsel and the guardian ad litem, if any, on the contents of  the  said
    54  answer or report and any amended petition filed.
    55    (c)  The  court  may  direct  that an order and decree of guardianship
    56  issue, including the authority of the guardian to act on behalf  of  the

        S. 4983                            14
 
     1  respondent  with respect to any matter in which petitioner, the service,
     2  respondent's counsel, and the guardian ad litem, if any,  all  agree  on
     3  the  record  that  the respondent requires the requested relief and does
     4  not object to such relief.
     5    (d) In the event that the petition cannot be disposed of by the agree-
     6  ment  of  the  court  and  all of the parties, the court shall forthwith
     7  schedule a hearing in the matter at which the respondent shall be  pres-
     8  ent  unless  it shall appear to the court that the respondent's presence
     9  is medically contraindicated, in that it would be likely to  cause  harm
    10  to  the  respondent,  or  under such other circumstances raised by or on
    11  behalf of the respondent as the court agrees that the respondent's pres-
    12  ence would not be in his or her best interests,  provided  however  that
    13  the  respondent's presence shall not be waived over the objection of the
    14  service, respondent's counsel, or a guardian ad litem, if any, in  which
    15  case  the  court shall conduct the hearing where the respondent resides,
    16  if the court is satisfied that the respondent's presence would be  harm-
    17  ful to the respondent.
    18    3.  [If  a  hearing  is  conducted,  the mentally retarded or develop-
    19  mentally disabled person shall be present unless it shall appear to  the
    20  satisfaction  of the court on the certification of the certifying physi-
    21  cian that the mentally retarded or developmentally  disabled  person  is
    22  medically  incapable  of  being present to the extent that attendance is
    23  likely to result in physical harm to such mentally retarded or  develop-
    24  mentally  disabled  person,  or under such other circumstances which the
    25  court finds would not be in the best interest of the  mentally  retarded
    26  or  developmentally disabled person.] If there are any objections to the
    27  relief sought by the petitioner, the respondent has a right to a hearing
    28  or jury trial, if demanded by the respondent. In addition, the court may
    29  conduct a hearing at the request of any party or on its own  motion.  At
    30  any  such  hearing  or trial, the petitioner must establish by clear and
    31  convincing evidence any facts alleged in the petition or  amended  peti-
    32  tion which are controverted and are relevant to whether respondent has a
    33  developmental  disability,  and if so, whether appointment of a guardian
    34  is required and the scope of the guardian's  powers.  Any  other  matter
    35  must  be  proven by the fair preponderance of the evidence presented and
    36  admitted.
    37    4. [If either a hearing is dispensed with pursuant to subdivisions one
    38  and two of this section or  the  mentally  retarded  or  developmentally
    39  disabled  person  is  not present at the hearing pursuant to subdivision
    40  three of this section, the court may appoint a guardian ad litem  if  no
    41  mental  hygiene legal service attorney is authorized to act on behalf of
    42  the mentally retarded or developmentally disabled person.  The  guardian
    43  ad  litem  or mental hygiene legal service attorney, if appointed, shall
    44  personally interview the mentally retarded or  developmentally  disabled
    45  person and shall submit a written report to the court.
    46    5.  If,  upon  conclusion  of such hearing or jury trial or if none be
    47  held upon the application, the court is satisfied that the  best  inter-
    48  ests of the mentally retarded or developmentally disabled person will be
    49  promoted  by the appointment of a guardian of the person or property, or
    50  both, it shall make a decree naming such person or persons to  serve  as
    51  such  guardians.]  If, upon conclusion of such hearing or jury trial, if
    52  any, the court is satisfied that  the  respondent  has  a  developmental
    53  disability  and  requires the appointment of a guardian of the person or
    54  property, or both, it shall make a decree naming such person or  persons
    55  to serve as such guardians. The powers of the guardian shall be tailored
    56  to the needs of the respondent.

        S. 4983                            15
 
     1    §  9.   The surrogate's court procedure act is amended by adding a new
     2  section 1754-a to read as follows:
     3  § 1754-a. Decision making standard
     4    Decisions  made  by  a  guardian on behalf of a person with a develop-
     5  mental disability shall be made in accordance with the following  stand-
     6  ards.
     7    1.  A  guardian  shall  exercise authority only as necessitated by the
     8  person with a developmental disability's limitations, and, to the extent
     9  possible, shall encourage the person with a developmental disability  to
    10  participate in decisions and to act on his or her own behalf.
    11    2. A guardian shall consider the expressed desires and personal values
    12  of  the person with a developmental disability to the extent known, when
    13  making decisions and shall consult with the person with a  developmental
    14  disability whenever meaningful communication is possible.
    15    3. If the person's wishes are unknown and remain unknown after reason-
    16  able efforts to discern them, the decision shall be made on the basis of
    17  the  best  interests  of  the  person with a developmental disability as
    18  determined by the guardian. In determining the  best  interests  of  the
    19  person  with  a  developmental  disability, the guardian shall weigh the
    20  reason for and nature of the proposed action; the benefit  or  necessity
    21  of the action, the possible risks and other consequences of the proposed
    22  action; and any available alternatives and their risks, consequences and
    23  benefits.    The guardian shall take into account any other information,
    24  including the views of family and friends, that  the  guardian  believes
    25  the person with a developmental disability would have considered if able
    26  to act for herself or himself.
    27    § 10. Section 1755 of the surrogate's court procedure act, as added by
    28  chapter 675 of the laws of 1989, is amended to read as follows:
    29  § 1755. Modification order
    30    Any  [mentally  retarded  or  developmentally  disabled] person with a
    31  developmental disability eighteen years of age or older, or  any  person
    32  on  behalf of any [mentally retarded or developmentally disabled] person
    33  with a developmental disability for whom a guardian has been  appointed,
    34  may apply to the court [having jurisdiction over the guardianship order]
    35  pursuant  to  section  1751-a of this article requesting modification of
    36  such order in order to protect the [mentally retarded or developmentally
    37  disabled person's] person with a  developmental  disability's  financial
    38  situation  and/or  his  or  her  personal interests. The court may, upon
    39  receipt of any such request to modify the guardianship order, appoint  a
    40  guardian  ad  litem. The court shall so modify the guardianship order if
    41  in its judgment the interests of the guardian are adverse  to  those  of
    42  the [mentally retarded or developmentally disabled] person with a devel-
    43  opmental  disability  or if the interests of justice will be best served
    44  including, but not limited to, facts showing the necessity for  protect-
    45  ing the personal and/or financial interests of the [mentally retarded or
    46  developmentally disabled] person with a developmental disability.
    47    § 11. Section 1756 of the surrogate's court procedure act, as added by
    48  chapter 675 of the laws of 1989, is amended to read as follows:
    49  §  1756. Limited [guardian of the property] purpose and/or limited dura-
    50            tion guardianship
    51    1. When it shall appear to the satisfaction of  the  court  that  such
    52  [mentally  retarded  or developmentally disabled] person with a develop-
    53  mental disability for whom an application for guardianship  is  made  is
    54  eighteen  years of age or older and is wholly or substantially self-sup-
    55  porting by means of his or her wages or earnings  from  employment,  the
    56  court  is  authorized and empowered to appoint a limited guardian of the

        S. 4983                            16
 
     1  property of such [mentally retarded or developmentally disabled]  person
     2  with  a developmental disability who shall receive, manage, disburse and
     3  account for only such property of said [mentally  retarded  or  develop-
     4  mentally  disabled]  person  with a developmental disability as shall be
     5  received from other than the wages or earnings of said person.
     6    The [mentally retarded or  developmentally  disabled]  person  with  a
     7  developmental disability for whom a limited guardian of the property has
     8  been  appointed  shall  have the right to receive and expend any and all
     9  wages or other earnings of his or her  employment  and  shall  have  the
    10  power  to  contract  or  legally bind himself or herself for such sum of
    11  money not exceeding one month's wages or earnings from  such  employment
    12  or  three hundred dollars, whichever is greater, or as otherwise author-
    13  ized by the court.
    14    2.  When it shall appear to the satisfaction of the court, either upon
    15  a petition for guardianship filed as permitted by sections 1751 and 1752
    16  of this article or upon a petition filed pursuant to this section  in  a
    17  simplified  format  to  be  established  by the office of court adminis-
    18  tration in consultation with the office for  people  with  developmental
    19  disabilities  and  other  interested  stakeholders, that a person with a
    20  developmental disability needs the  assistance  of  a  guardian  of  the
    21  person  and/or  property  for the purpose of making a single decision or
    22  for a brief stated period of transition in such person's life, the court
    23  may appoint a limited-purpose guardian of the person and/or property  to
    24  effectuate  such  a  decision  or  transition.  In  any  such  case, the
    25  provisions of section 1754 shall apply, except that the period  for  the
    26  rendering  of  a  report  by  the  mental hygiene legal service or other
    27  respondent's counsel may be shortened as may be reasonably necessary  to
    28  meet  the  needs of the respondent under the circumstances presented. An
    29  order appointing and empowering such a limited-purpose guardian  of  the
    30  person  and/or  property shall state specifically the duration and scope
    31  of such guardian's authority.
    32    § 12. Section 1757 of the surrogate's court procedure act, as added by
    33  chapter 675 of the laws of 1989, the section heading as amended by chap-
    34  ter 290 of the laws of 1992, subdivision 2 as amended by chapter 260  of
    35  the  laws  of 2009, subdivision 3 as added by chapter 294 of the laws of
    36  2012, is amended to read as follows:
    37  § 1757. Standby guardian of  a  [mentally  retarded  or  developmentally
    38            disabled] person with a developmental disability
    39    1.  Upon  application, a standby guardian of the person or property or
    40  both of a [mentally retarded or developmentally disabled] person with  a
    41  developmental  disability may be appointed by the court. Any such appli-
    42  cation shall be made upon notice to the mental  hygiene  legal  service.
    43  The  court  may  also,  upon  application,  appoint  an alternate and/or
    44  successive alternates to such standby guardian, to act if  such  standby
    45  guardian  shall  die,  or  become incapacitated, or shall renounce. Such
    46  appointments  by  the  court  shall  be  made  in  accordance  with  the
    47  provisions of this article.
    48    2.  Such  standby  guardian, or alternate in the event of such standby
    49  guardian's death, incapacity  or  renunciation,  shall  without  further
    50  proceedings be empowered to assume the duties of his or her office imme-
    51  diately  upon death, renunciation or adjudication of incompetency of the
    52  guardian or standby guardian appointed pursuant to this article, subject
    53  only to the filing of an application for  confirmation  of  his  or  her
    54  appointment  by  the  court  within  one  hundred  eighty days following
    55  assumption of his or her duties of such office.  Before  confirming  the
    56  appointment of the standby guardian or alternate guardian, the court may

        S. 4983                            17
 
     1  conduct  a  hearing  pursuant to section seventeen hundred fifty-four of
     2  this article upon petition by anyone on behalf of the [mentally retarded
     3  or developmentally disabled] person with a developmental  disability  or
     4  the [mentally retarded or developmentally disabled] person with a devel-
     5  opmental disability if such person is eighteen years of age or older, or
     6  upon its discretion.
     7    3.  Failure  of  a standby or alternate standby guardian to assume the
     8  duties of guardian, seek court confirmation or to renounce the guardian-
     9  ship within sixty days of written notice by certified mail  or  personal
    10  delivery  given  by  or  on behalf of the [mentally retarded or develop-
    11  mentally disabled] person with a developmental  disability  of  a  prior
    12  guardian's  inability  to  serve  and  the  standby or alternate standby
    13  guardian's duty to serve, seek court confirmation or renounce such  role
    14  shall allow the court to:
    15    (a) deem the failure an implied renunciation of guardianship, and
    16    (b)  authorize, notwithstanding the time period provided for in subdi-
    17  vision two of this section to seek  court  confirmation,  any  remaining
    18  standby or alternate standby guardian to serve in such capacity provided
    19  (i)  an application for confirmation and appropriate notices pursuant to
    20  subdivision one of section seventeen hundred fifty-three of this article
    21  are filed, or (ii) an application for modification of  the  guardianship
    22  order  pursuant  to section seventeen hundred fifty-five of this article
    23  is filed.
    24    § 13. Subdivision 2 of section 1758 of the surrogate's court procedure
    25  act, as amended by chapter 427 of the laws of 2013, is amended  to  read
    26  as follows:
    27    2.  After the appointment of a guardian, standby guardian or alternate
    28  guardians, the court shall have and retain general jurisdiction over the
    29  [mentally retarded or developmentally disabled] person with  a  develop-
    30  mental  disability  for whom such guardian shall have been appointed, to
    31  take of its own motion or to entertain and  adjudicate  such  steps  and
    32  proceedings  relating  to such guardian, standby, or alternate guardian-
    33  ship as may be deemed necessary  or  proper  for  the  welfare  of  such
    34  [mentally  retarded  or developmentally disabled] person with a develop-
    35  mental disability.
    36    § 14. Section 1759 of the surrogate's court procedure act, as added by
    37  chapter 675 of the laws of 1989, is amended to read as follows:
    38  § 1759. Duration of guardianship
    39    1. Such guardianship shall not terminate at the  age  of  majority  or
    40  marriage  of such [mentally retarded or developmentally disabled] person
    41  with a developmental disability but shall continue during  the  life  of
    42  such person, during the period specified in a limited purpose or limited
    43  duration guardianship, or until terminated by the court.
    44    2.  A person eighteen years or older for whom such a guardian has been
    45  previously appointed or anyone, including the guardian, on behalf  of  a
    46  [mentally  retarded  or developmentally disabled] person with a develop-
    47  mental disability for whom a guardian has been  appointed  may  petition
    48  the  court which made such appointment or the court in his or her county
    49  of residence to have the guardian discharged and a successor  appointed,
    50  or to have the guardian of the property designated as a limited guardian
    51  of  the  property, or to have the guardianship order modified, dissolved
    52  or otherwise amended. Upon such a petition for review, the  court  shall
    53  conduct  a  hearing  pursuant to section seventeen hundred fifty-four of
    54  this article.
    55    3. Upon marriage of such [mentally retarded or  developmentally  disa-
    56  bled]  person  with  a developmental disability for whom such a guardian

        S. 4983                            18
 
     1  has been appointed, the court  shall,  upon  request  of  the  [mentally
     2  retarded  or developmentally disabled] person with a developmental disa-
     3  bility, spouse, or any other person acting on behalf  of  the  [mentally
     4  retarded  or developmentally disabled] person with a developmental disa-
     5  bility, review the need, if any, to modify, dissolve or otherwise  amend
     6  the guardianship order including, but not limited to, the appointment of
     7  the  spouse  as  standby  guardian.    The court, in its discretion, may
     8  conduct such review pursuant to section seventeen hundred fifty-four  of
     9  this article.
    10    § 15. Section 1760 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  § 1760. Corporate guardianship
    13    No  corporation  may  be  appointed  guardian  of the person under the
    14  provisions of this article, except that a non-profit corporation  organ-
    15  ized and existing under the laws of the state of New York and having the
    16  corporate  power  to  act  as guardian of [mentally retarded or develop-
    17  mentally  disabled]  persons  with  developmental  disabilities  may  be
    18  appointed  as the guardian of the person only of such [mentally retarded
    19  or developmentally disabled] person with a developmental disability.
    20    § 16. Section 1761 of the surrogate's court procedure act, as added by
    21  chapter 675 of the laws of 1989, is amended to read as follows:
    22  § 1761. Application of other provisions
    23    To the extent that the context thereof shall admit, the provisions  of
    24  article  seventeen of this act shall apply to all proceedings under this
    25  article with the same force and [affect] effect as if  an  "infant",  as
    26  therein  referred  to,  were  a "[mentally retarded" or "developmentally
    27  disabled] person with a developmental disability" as herein defined, and
    28  a "guardian" as therein referred to were a "guardian  of  the  [mentally
    29  retarded  person"  or  a "guardian of a developmentally disabled] person
    30  with a developmental disability" as herein provided for.
    31    § 17.  The surrogate's court procedure act is amended by adding a  new
    32  section 1762 to read as follows:
    33  § 1762. Annual report of personal needs guardian
    34    1.  For  the purposes of this article, the guardian of a person with a
    35  developmental disability shall submit a report regarding the  status  of
    36  the  person  with a developmental disability annually on the anniversary
    37  of his or her appointment or at such other interval as  ordered  by  the
    38  court.
    39    2.  The  report  shall  be on a form prescribed by the office of court
    40  administration.
    41    3. A corporate guardian appointed pursuant to  section  1760  of  this
    42  article may submit in lieu of the form prescribed by the office of court
    43  administration  in  subdivision  two  of  this  section its own internal
    44  report provided the information required to be contained in  the  report
    45  is included in the corporate annual report.
    46    4.  The  guardianship  report  form  shall be filed with the court and
    47  mailed to standby guardians and alternate standby guardians, and,  where
    48  applicable,  the director of mental hygiene legal service in the depart-
    49  ment in which the person with a developmental disability resides and the
    50  director of the residence of the person with a developmental  disability
    51  or  the  person  with  whom  the  person with a developmental disability
    52  resides.
    53    § 18. This act shall take effect on  the  one  hundred  eightieth  day
    54  after it shall have become a law.
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