S05842 Summary:

BILL NOS05842
 
SAME ASSAME AS A05840
 
SPONSORHANNON
 
COSPNSRBROOKS, HELMING, MURPHY, RANZENHOFER
 
MLTSPNSR
 
Rpld §§1750-a & 1754, amd SCPA, generally; amd §35, Judy L
 
Relates to guardianship and health care decisions of persons with developmental disabilities.
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S05842 Actions:

BILL NOS05842
 
05/02/2017REFERRED TO JUDICIARY
06/06/2017REPORTED AND COMMITTED TO RULES
06/21/2017ORDERED TO THIRD READING CAL.2215
06/21/2017PASSED SENATE
06/21/2017DELIVERED TO ASSEMBLY
06/22/2017referred to judiciary
01/03/2018died in assembly
01/03/2018returned to senate
01/03/2018REFERRED TO JUDICIARY
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S05842 Committee Votes:

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S05842 Floor Votes:

There are no votes for this bill in this legislative session.
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S05842 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5842
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                       May 2, 2017
                                       ___________
 
        Introduced  by  Sen.  HANNON -- 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  and  the  judiciary
          law,  in relation to guardianship and health care decisions of persons
          with developmental disabilities; and to repeal certain  provisions  of
          the surrogate's court procedure act 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  198  of  the  laws  of 2016, is amended to read as
     3  follows:
     4  § 1750. Guardianship of persons [who are intellectually  disabled]  with
     5            developmental disabilities
     6    1. When it shall appear to the satisfaction of the court that a person
     7  is  a person [who is intellectually disabled] with a developmental disa-
     8  bility within the meaning of subdivision twenty-two of section  1.03  of
     9  the  mental  hygiene  law or a person with traumatic brain injury within
    10  the meaning of subdivision one of section  two  thousand  seven  hundred
    11  forty-one  of  the  public health law, except that no age of origination
    12  shall apply for purposes of this article to a person with traumatic head
    13  injury, and that such person, as a result of such developmental disabil-
    14  ity or traumatic brain injury, exhibits significant impairment of gener-
    15  al or specific areas of intellectual functioning and/or adaptive  behav-
    16  iors  in specified domains as enumerated in subdivision eight of section
    17  seventeen hundred fifty-two of this article, the court is authorized  to
    18  appoint  a  guardian of the person or of the property or of both if such
    19  appointment of a guardian or guardians is in the best  interest  of  the
    20  person  [who is intellectually disabled]. Such appointment shall be made
    21  pursuant to the provisions of this article[, provided however  that  the
    22  provisions  of  section  seventeen hundred fifty-a of this article shall

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08755-02-7

        S. 5842                             2

     1  not apply to the appointment of a guardian or guardians of a person  who
     2  is intellectually disabled.
     3    1.  For  the  purposes of this article, a person who is intellectually
     4  disabled is a person who has been certified by  one  licensed  physician
     5  and  one  licensed  psychologist, or by two licensed physicians at least
     6  one of whom is familiar with or has professional knowledge in  the  care
     7  and  treatment of persons with an intellectual disability, having quali-
     8  fications to make such certification, as being incapable to  manage  him
     9  or herself and/or his or her affairs by reason of intellectual disabili-
    10  ty  and that such condition is permanent in nature or likely to continue
    11  indefinitely].
    12    2.  Every guardianship entered into pursuant to this article prior  to
    13  the  effective  date  of  this subdivision, including orders and decrees
    14  pursuant to section seventeen hundred fifty-seven of this article, shall
    15  remain in full force and effect thereafter, except as  amended  pursuant
    16  to section seventeen hundred fifty-five of this article or as ordered by
    17  the  court;  and  any such guardianship shall be administered consistent
    18  with the substantive and procedural requirements set forth in this arti-
    19  cle, except that the provisions of section seventeen hundred six-two  of
    20  this  article shall only apply to guardianships entered into on or after
    21  the effective date of this subdivision. Further,  guardianships  entered
    22  into prior to the effective date of the chapter of the laws of two thou-
    23  sand  seventeen which amended this subdivision, upon petition for amend-
    24  ment pursuant to section seventeen hundred fifty-five and section seven-
    25  teen hundred fifty-seven of this  article,  shall  not  be  required  to
    26  resubmit proof of the continued need for guardianship.
    27    3.  Every  [such  certification  pursuant  to  subdivision one of this
    28  section,] order and decree made on or after the effective date  of  this
    29  subdivision,  shall  include a specific determination by [such physician
    30  and psychologist, or by such physicians,] the issuing court as to wheth-
    31  er the person [who is intellectually disabled] has the capacity to  make
    32  health  care decisions, as defined by subdivision three of section twen-
    33  ty-nine hundred eighty of the public health law, for himself or herself.
    34  A determination that the person [who is intellectually disabled] has the
    35  capacity to make health care decisions shall not preclude  the  appoint-
    36  ment  of  a guardian pursuant to this section to make other decisions on
    37  behalf of the person [who is intellectually disabled].  The  absence  of
    38  this  determination  in  the  case  of guardians appointed prior to [the
    39  effective date of this subdivision] March sixteenth, two thousand  three
    40  shall  not  preclude  such  guardians from making health care decisions.
    41  Further, guardians appointed by orders and/or decrees  issued  prior  to
    42  the  effective date of the chapter of the laws of two thousand seventeen
    43  which amended this subdivision shall have authority in all areas, unless
    44  otherwise stated in said order or decree.
    45    § 2.  Section  1750-a  of  the  surrogate's  court  procedure  act  is
    46  REPEALED.
    47    § 3. Section 1750-b of the surrogate's court procedure act, as amended
    48  by chapter 198 of the laws of 2016, is amended to read as follows:
    49  § 1750-b. Health  care  decisions  for  persons  [who are intellectually
    50              disabled] with developmental disabilities
    51    1. Scope of authority.  As used in this section,  the  term  "develop-
    52  mental  disability"  is  as defined by subdivision twenty-two of section
    53  1.03 of the mental hygiene law and shall also include  individuals  with
    54  traumatic  brain  injury  as  defined  by subdivision one of section two
    55  thousand seven hundred  forty-one  of  the  public  health  law.  Unless
    56  specifically  prohibited by the court after consideration of [the deter-

        S. 5842                             3

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

        S. 5842                             4

     1  sion  of  a  guardian  to withhold or withdraw life-sustaining treatment
     2  pursuant to this section.
     3    In the case of a person for whom no guardian has been appointed pursu-
     4  ant  to  this article or for whom there is no qualified family member or
     5  the Willowbrook consumer advisory board available to make such  a  deci-
     6  sion,  a  "guardian" shall also mean, notwithstanding the definitions in
     7  section 80.03 of the mental hygiene  law,  a  surrogate  decision-making
     8  committee,  as  defined in article eighty of the mental hygiene law. All
     9  declarations and procedures, including expedited procedures,  to  comply
    10  with this section shall be established by regulations promulgated by the
    11  [commission  on  quality of care and advocacy for persons with disabili-
    12  ties] justice center for the protection of people with special needs, as
    13  established by article twenty of the executive law.
    14    (b) Regulations establishing the prioritized list of qualified  family
    15  members required by paragraph (a) of this subdivision shall be developed
    16  by the commissioner of the office for people with developmental disabil-
    17  ities  in  conjunction  with  parents,  advocates  and family members of
    18  persons [who are intellectually disabled] with  developmental  disabili-
    19  ties. Regulations to implement the authority of the Willowbrook consumer
    20  advisory  board  pursuant  to  paragraph  (a) of this subdivision may be
    21  promulgated by the commissioner of the office for people  with  develop-
    22  mental  disabilities  with advice from the Willowbrook consumer advisory
    23  board.
    24    (c) Notwithstanding any provision of law to the contrary,  the  formal
    25  determinations  required  pursuant to section seventeen hundred fifty of
    26  this article shall only apply to guardians appointed pursuant to section
    27  seventeen hundred fifty [or seventeen hundred fifty-a] of this article.
    28    2. Decision-making standard. (a) The guardian shall base all  advocacy
    29  and  health  care  decision-making  solely  and  exclusively on the best
    30  interests of the person [who is intellectually disabled] with a develop-
    31  mental disability and,  when  reasonably  known  or  ascertainable  with
    32  reasonable  diligence,  on [the person who is intellectually disabled's]
    33  such person's wishes, including moral and religious beliefs.
    34    (b) An assessment of the person  [who  is  intellectually  disabled's]
    35  with a developmental disability's best interests shall include consider-
    36  ation of:
    37    (i) the dignity and uniqueness of every person;
    38    (ii)  the  preservation, improvement or restoration of the person [who
    39  is intellectually disabled's] with a developmental  disability's  health
    40  and well being;
    41    (iii) the relief of the person [who is intellectually disabled's] with
    42  a  developmental  disability's suffering by means of palliative care and
    43  pain management;
    44    (iv)  the  unique  nature  of  [artificially  provided]  nutrition  or
    45  hydration  provided  by medical treatment, and the effect it may have on
    46  the person [who is intellectually disabled] with a  developmental  disa-
    47  bility; and
    48    (v) the entire medical condition of the person.
    49    (c) No health care decision shall be influenced in any way by:
    50    (i)  a presumption that persons [who are intellectually disabled] with
    51  a developmental disability are  not  entitled  to  the  full  and  equal
    52  rights,  equal protection, respect, medical care and dignity afforded to
    53  persons without [an intellectual disability or a]  developmental  [disa-
    54  bility] disabilities; or
    55    (ii)  financial considerations of the guardian, as such considerations
    56  affect the  guardian,  a  health  care  provider  or  any  other  party;

        S. 5842                             5
 
     1  provided,  however  that the guardian shall have no financial obligation
     2  for the care of the person with developmental disabilities.
     3    3. Right to receive information. Subject to the provisions of sections
     4  33.13  and  33.16 of the mental hygiene law, the guardian shall have the
     5  right to receive  all  medical  information  and  medical  and  clinical
     6  records  necessary  to make informed decisions regarding the person [who
     7  is intellectually disabled's] with a developmental  disability's  health
     8  care.
     9    4.  Life-sustaining treatment. The guardian shall have the affirmative
    10  obligation to advocate for the full and efficacious provision of  health
    11  care,  including life-sustaining treatment. In the event that a guardian
    12  makes a decision to withdraw or withhold life-sustaining treatment  from
    13  a person [who is intellectually disabled] with a developmental disabili-
    14  ty:
    15    (a)  The attending physician, as defined in subdivision two of section
    16  twenty-nine hundred eighty of the public health law, must confirm  to  a
    17  reasonable degree of medical certainty that the person [who is intellec-
    18  tually  disabled] with a developmental disability lacks capacity to make
    19  health care decisions.  The determination thereof shall be  included  in
    20  the person [who is intellectually disabled's] with a developmental disa-
    21  bility's  medical  record,  and shall contain such attending physician's
    22  opinion regarding the cause and nature of the [person who is intellectu-
    23  ally disabled's] person's incapacity as well as its extent and  probable
    24  duration.  The  attending  physician  who  makes  the confirmation shall
    25  consult with another physician, or a [licensed] psychologist, to further
    26  confirm the [person who is intellectually disabled's] person's  lack  of
    27  capacity.  The  attending  physician  who makes the confirmation, or the
    28  physician or [licensed] psychologist with whom the  attending  physician
    29  consults,  must (i) be employed by a developmental disabilities services
    30  office named in section 13.17 of the mental hygiene law or  employed  by
    31  the  office for people with developmental disabilities to provide treat-
    32  ment and care to people with developmental disabilities,  or  (ii)  have
    33  been employed for a minimum of two years to render care and service in a
    34  facility  or  program operated, licensed or authorized by the office for
    35  people with developmental disabilities, or (iii) have been  approved  by
    36  the  commissioner  of the office for people with developmental disabili-
    37  ties in accordance with regulations promulgated  by  such  commissioner.
    38  Such regulations shall require that a physician or licensed psychologist
    39  possess  specialized  training  or  three  years  experience in treating
    40  [intellectual disability]  people  with  developmental  disabilities.  A
    41  record  of  such  consultation  shall  be included in the person [who is
    42  intellectually disabled's] with  a  developmental  disability's  medical
    43  record.
    44    (b)  The attending physician, as defined in subdivision two of section
    45  twenty-nine hundred eighty of the public health law,  with  the  concur-
    46  rence  of  another  physician  with  whom such attending physician shall
    47  consult, must determine to a reasonable degree of medical certainty  and
    48  note  on  the  person [who is intellectually disabled's] with a develop-
    49  mental disability's chart that:
    50    (i) the person [who is intellectually disabled] has a  medical  condi-
    51  tion as follows:
    52    A.  a  terminal  condition,  as defined in subdivision twenty-three of
    53  section twenty-nine hundred sixty-one of the public health law; or
    54    B. permanent unconsciousness; or

        S. 5842                             6
 
     1    C. a medical condition other than such person's [intellectual]  devel-
     2  opmental  disability  which requires life-sustaining treatment, is irre-
     3  versible and which will continue indefinitely; and
     4    (ii)  the  life-sustaining  treatment  would  impose  an extraordinary
     5  burden on such person, in light of:
     6    A. such person's medical condition, other than such  person's  [intel-
     7  lectual] developmental disability; and
     8    B.  the  expected  outcome  of the life-sustaining treatment, notwith-
     9  standing such person's [intellectual] developmental disability; and
    10    (iii) in the case of a decision to withdraw or  withhold  artificially
    11  provided nutrition or hydration:
    12    A. there is no reasonable hope of maintaining life; or
    13    B.  the artificially provided nutrition or hydration poses an extraor-
    14  dinary burden.
    15    (c) The guardian shall express a  decision  to  withhold  or  withdraw
    16  life-sustaining treatment either:
    17    (i)  in writing, dated and signed in the presence of one witness eigh-
    18  teen years of age or older who shall sign the decision, and presented to
    19  the attending physician, as defined in subdivision two of section  twen-
    20  ty-nine hundred eighty of the public health law; or
    21    (ii)  orally,  to two persons eighteen years of age or older, at least
    22  one of whom is the person [who  is  intellectually  disabled's]  with  a
    23  developmental  disability's  attending physician, as defined in subdivi-
    24  sion two of section twenty-nine hundred eighty of the public health law.
    25    (d) The attending physician, as defined in subdivision two of  section
    26  twenty-nine  hundred  eighty  of  the public health law, who is provided
    27  with the decision of a guardian shall include the decision in the person
    28  [who is intellectually disabled's]  with  a  developmental  disability's
    29  medical chart, and shall either:
    30    (i)  promptly  issue  an order to withhold or withdraw life-sustaining
    31  treatment from the person [who is intellectually disabled],  and  inform
    32  the staff responsible for such person's care, if any, of the order; or
    33    (ii)  promptly object to such decision, in accordance with subdivision
    34  five of this section.
    35    (e) At least forty-eight hours prior to the implementation of a  deci-
    36  sion  to withdraw life-sustaining treatment, or at the earliest possible
    37  time prior to the implementation of a decision to withhold life-sustain-
    38  ing treatment, the attending physician shall notify:
    39    (i) the person [who is intellectually disabled] with  a  developmental
    40  disability, except if the attending physician determines, in writing and
    41  in consultation with another physician or a licensed psychologist, that,
    42  to  a  reasonable  degree  of medical certainty, the person would suffer
    43  immediate and severe injury from such notification. The attending physi-
    44  cian who makes the confirmation, or the physician or  licensed  psychol-
    45  ogist with whom the attending physician consults, shall:
    46    A.  be  employed by a developmental disabilities services office named
    47  in section 13.17 of the mental hygiene law or employed by the office for
    48  people with developmental disabilities to provide treatment and care  to
    49  people with developmental disabilities, or
    50    B.  have  been  employed for a minimum of two years to render care and
    51  service in a facility operated, licensed or authorized by the office for
    52  people with developmental disabilities, or
    53    C. have been approved by the commissioner of  the  office  for  people
    54  with  developmental  disabilities in accordance with regulations promul-
    55  gated by such commissioner. Such regulations shall require that a physi-
    56  cian or licensed psychologist  possess  specialized  training  or  three

        S. 5842                             7
 
     1  years  experience  in  treating  [intellectual  disability] persons with
     2  developmental disabilities. A  record  of  such  consultation  shall  be
     3  included  in  the  [person  who  is  intellectually disabled's] person's
     4  medical record;
     5    (ii) if the person is in or was transferred from a residential facili-
     6  ty operated, licensed or authorized by the office for people with devel-
     7  opmental  disabilities,  the  chief  executive  officer of the agency or
     8  organization operating  such  facility  and  the  mental  hygiene  legal
     9  service; and
    10    (iii)  if  the  person  is  not in and was not transferred from such a
    11  facility or program, the commissioner of  the  office  for  people  with
    12  developmental disabilities, or his or her designee.
    13    5.  Objection  to  health care decision. (a) Suspension. A health care
    14  decision made pursuant to subdivision four  of  this  section  shall  be
    15  suspended,  pending  judicial  review, except if the suspension would in
    16  reasonable medical judgment be likely to result  in  the  death  of  the
    17  person [who is intellectually disabled] with a developmental disability,
    18  in the event of an objection to that decision at any time by:
    19    (i)  the  person [who is intellectually disabled] on whose behalf such
    20  decision was made; or
    21    (ii) a parent or adult sibling who either resides with  or  has  main-
    22  tained substantial and continuous contact with the person [who is intel-
    23  lectually disabled]; or
    24    (iii)  the  attending  physician,  as  defined  in  subdivision two of
    25  section twenty-nine hundred eighty of the public health law; or
    26    (iv) any other health care  practitioner  providing  services  to  the
    27  person [who is intellectually disabled] with a developmental disability,
    28  who  is licensed pursuant to article one hundred thirty-one, one hundred
    29  thirty-one-B, one hundred  thirty-two,  one  hundred  thirty-three,  one
    30  hundred  thirty-six, one hundred thirty-nine, one hundred forty-one, one
    31  hundred forty-three, one hundred forty-four,  one  hundred  fifty-three,
    32  one hundred fifty-four, one hundred fifty-six, one hundred fifty-nine or
    33  one hundred sixty-four of the education law; or
    34    (v)  the  chief  executive  officer identified in subparagraph (ii) of
    35  paragraph (e) of subdivision four of this section; or
    36    (vi) if the person is in or was transferred from a residential facili-
    37  ty or program operated, approved or licensed by the  office  for  people
    38  with developmental disabilities, the mental hygiene legal service; or
    39    (vii)  if  the  person  is  not in and was not transferred from such a
    40  facility or program, the commissioner of  the  office  for  people  with
    41  developmental disabilities, or his or her designee.
    42    (b)  Form  of objection. Such objection shall occur orally or in writ-
    43  ing.
    44    (c) Notification. In the event of the  suspension  of  a  health  care
    45  decision pursuant to this subdivision, the objecting party shall prompt-
    46  ly notify the guardian and the other parties identified in paragraph (a)
    47  of  this  subdivision,  and  the  attending  physician shall record such
    48  suspension in the person  [who  is  intellectually  disabled's]  with  a
    49  developmental disability's medical chart.
    50    (d)  Dispute  mediation. In the event of an objection pursuant to this
    51  subdivision, at the request of the objecting party or person  or  entity
    52  authorized  to  act as a guardian under this section, except a surrogate
    53  decision making committee established pursuant to article eighty of  the
    54  mental  hygiene law, such objection shall be referred to a dispute medi-
    55  ation system, established pursuant to section two thousand nine  hundred
    56  seventy-two  of  the  public  health law or similar entity for mediating

        S. 5842                             8
 
     1  disputes in a hospice, such as a patient's advocate's  office,  hospital
     2  chaplain's  office  or  ethics  committee,  as  described in writing and
     3  adopted by the governing authority  of  such  hospice,  for  non-binding
     4  mediation.  In  the  event  that  such dispute cannot be resolved within
     5  seventy-two hours or no such mediation entity exists  or  is  reasonably
     6  available  for  mediation  of  a dispute, the objection shall proceed to
     7  judicial review pursuant to this subdivision. The party requesting medi-
     8  ation shall provide notification to those  parties  entitled  to  notice
     9  pursuant to paragraph (a) of this subdivision.
    10    6.  Special  proceeding authorized. The guardian, the attending physi-
    11  cian, as defined in  subdivision  two  of  section  twenty-nine  hundred
    12  eighty  of the public health law, the chief executive officer identified
    13  in subparagraph (ii) of  paragraph  (e)  of  subdivision  four  of  this
    14  section,  the  mental  hygiene legal service (if the person is in or was
    15  transferred from a residential facility or program operated, approved or
    16  licensed by the office for people with  developmental  disabilities)  or
    17  the  commissioner  of the office for people with developmental disabili-
    18  ties or his or her designee (if the person is not in and was not  trans-
    19  ferred  from such a facility or program) may commence a special proceed-
    20  ing in a court of competent jurisdiction with  respect  to  any  dispute
    21  arising  under  this  section,  including objecting to the withdrawal or
    22  withholding of life-sustaining  treatment  because  such  withdrawal  or
    23  withholding  is  not  in  accord  with  the  criteria  set forth in this
    24  section.
    25    7. Provider's obligations. (a) A health  care  provider  shall  comply
    26  with the health care decisions made by a guardian in good faith pursuant
    27  to  this  section, to the same extent as if such decisions had been made
    28  by the person [who is  intellectually  disabled]  with  a  developmental
    29  disability, if such person had capacity.
    30    (b) Notwithstanding paragraph (a) of this subdivision, nothing in this
    31  section  shall  be  construed  to  require a private hospital to honor a
    32  guardian's health care decision that the hospital would not honor if the
    33  decision had been made by the person [who  is  intellectually  disabled]
    34  with  a  developmental  disability, if such person had capacity, because
    35  the decision is contrary to a formally adopted  written  policy  of  the
    36  hospital  expressly  based  on religious beliefs or sincerely held moral
    37  convictions central to the  hospital's  operating  principles,  and  the
    38  hospital  would  be  permitted by law to refuse to honor the decision if
    39  made by such person, provided:
    40    (i) the hospital has informed the guardian of such policy prior to  or
    41  upon admission, if reasonably possible; and
    42    (ii)  the person [who is intellectually disabled] with a developmental
    43  disability is transferred promptly to another hospital that  is  reason-
    44  ably  accessible  under  the  circumstances  and is willing to honor the
    45  guardian's decision. If the guardian is unable or unwilling  to  arrange
    46  such  a  transfer,  the  hospital's refusal to honor the decision of the
    47  guardian shall constitute an objection pursuant to subdivision  five  of
    48  this section.
    49    (c) Notwithstanding paragraph (a) of this subdivision, nothing in this
    50  section shall be construed to require an individual health care provider
    51  to honor a guardian's health care decision that the individual would not
    52  honor if the decision had been made by the person [who is intellectually
    53  disabled]  with a developmental disability, if such person had capacity,
    54  because the decision is contrary to the individual's  religious  beliefs
    55  or sincerely held moral convictions, provided the individual health care
    56  provider  promptly informs the guardian and the facility, if any, of his

        S. 5842                             9
 
     1  or her refusal to honor the guardian's  decision.  In  such  event,  the
     2  facility  shall  promptly transfer responsibility for the person [who is
     3  intellectually disabled] with  a  developmental  disability  to  another
     4  individual  health  care  provider willing to honor the guardian's deci-
     5  sion. The individual health care provider shall cooperate in  facilitat-
     6  ing such transfer of the patient.
     7    (d)  Notwithstanding  the  provisions  of  any other paragraph of this
     8  subdivision, if a guardian  directs  the  provision  of  life-sustaining
     9  treatment,  the  denial of which in reasonable medical judgment would be
    10  likely to result in the death of the person [who is intellectually disa-
    11  bled] with a developmental disability, a hospital or  individual  health
    12  care  provider  that does not wish to provide such treatment shall none-
    13  theless comply with the guardian's decision pending either  transfer  of
    14  the  person  [who is intellectually disabled] with a developmental disa-
    15  bility to a willing hospital or  individual  health  care  provider,  or
    16  judicial review.
    17    (e)  Nothing in this section shall affect or diminish the authority of
    18  a surrogate decision-making panel to render  decisions  regarding  major
    19  medical treatment pursuant to article eighty of the mental hygiene law.
    20    8. Immunity. (a) Provider immunity. No health care provider or employ-
    21  ee  thereof  shall  be  subjected  to criminal or civil liability, or be
    22  deemed to have engaged in unprofessional conduct, for  honoring  reason-
    23  ably  and  in  good  faith  a health care decision by a guardian, or for
    24  other actions taken reasonably  and  in  good  faith  pursuant  to  this
    25  section.
    26    (b)  Guardian  immunity. No guardian shall be subjected to criminal or
    27  civil liability for making a health care decision reasonably and in good
    28  faith pursuant to this section.
    29    § 4. Section 1751 of the surrogate's court procedure act,  as  amended
    30  by chapter 198 of the laws of 2016, is amended to read as follows:
    31  § 1751. Petition for appointment; by whom made
    32    1.  A  petition  for  the  appointment of a guardian [of the person or
    33  property, or both, of a person  who  is  intellectually  disabled  or  a
    34  person  who  is  developmentally  disabled may be made by a parent, any]
    35  pursuant to this article may be made by the person with a  developmental
    36  disability  or traumatic brain injury when such person is eighteen years
    37  of age or older, a parent, spouse, sibling, adult  child  or  any  other
    38  interested person eighteen years of age or older on behalf of the person
    39  [who is intellectually disabled or a person who is developmentally disa-
    40  bled]  with a developmental disability or traumatic brain injury includ-
    41  ing a corporation authorized to serve as a guardian as provided  for  by
    42  this  article[,  or  by  the  person who is intellectually disabled or a
    43  person who is developmentally disabled  when  such  person  is  eighteen
    44  years of age or older].
    45    2.  A person with a developmental disability or traumatic brain injury
    46  may knowingly and voluntarily consent to the appointment of  a  guardian
    47  pursuant to this article.
    48    §  5.  The  surrogate's court procedure act is amended by adding a new
    49  section 1751-a to read as follows:
    50  § 1751-a. Petition for appointment; where made (venue)
    51    1. A proceeding under this article shall be brought in the surrogate's
    52  court within the county in which the person with a  developmental  disa-
    53  bility  resides,  or is physically present at the time the proceeding is
    54  commenced, subject to an application to change venue  pursuant  to  this
    55  subdivision. If the person with a developmental disability alleged to be
    56  in  need  of  a guardian is being cared for as a resident in a facility,

        S. 5842                            10
 
     1  the residence of that person shall be deemed to be in the  county  where
     2  the  facility is located and the proceeding may be brought in that coun-
     3  ty, subject to application by an interested party for a change in  venue
     4  to  another  county  because  of  the  inconvenience  of  the parties or
     5  witnesses or the condition of the person alleged to  be  in  need  of  a
     6  guardian.
     7    2. After the appointment of a guardian, at the option of the petition-
     8  er,  any proceeding to modify a prior order may be brought in the surro-
     9  gate's court which granted the prior order, unless at the  time  of  the
    10  application to modify the order the person with a developmental disabil-
    11  ity  resides  elsewhere,  in which case the proceeding may be brought in
    12  the county where the person with a developmental disability  resides  or
    13  is  physically  present at the time the proceeding is commenced, without
    14  the need for a motion to transfer venue.
    15    § 6. Section 1752 of the surrogate's court procedure act,  as  amended
    16  by chapter 198 of the laws of 2016, is amended to read as follows:
    17  § 1752. Petition for appointment; contents
    18    The petition for the appointment of a guardian shall be filed with the
    19  court  on forms to be prescribed by the state chief administrator of the
    20  courts. Such petition for a guardian [of a person who is  intellectually
    21  disabled  or  a person who is developmentally disabled] pursuant to this
    22  article shall include, but not be limited to, the following information:
    23    1. the full name, date of birth and residence of the  person  [who  is
    24  intellectually  disabled  or  a  person who is developmentally disabled]
    25  with a developmental disability or a traumatic brain injury;
    26    2. the name, age, address and relationship or interest  of  the  peti-
    27  tioner  to the person [who is intellectually disabled or a person who is
    28  developmentally disabled] with a developmental disability;
    29    3. the names and addresses, if known of the father, the mother,  adult
    30  children,  adult siblings [if eighteen years of age or older, the spouse
    31  and primary care physician if other than a physician having submitted  a
    32  certification  with  the petition, if any,] of the person [who is intel-
    33  lectually disabled or a person who is developmentally disabled]  with  a
    34  developmental  disability  or  traumatic brain injury and whether or not
    35  they are living, and if  living,  their  addresses  and  the  names  and
    36  addresses of the nearest distributees of full age who are domiciliaries,
    37  if both parents are dead;
    38    4.  the  name  and  address of the person with whom the person [who is
    39  intellectually disabled or a person  who  is  developmentally  disabled]
    40  with  a  developmental  disability  or traumatic brain injury resides if
    41  other than the parents or spouse;
    42    5. the name and address of any person  with  significant  and  ongoing
    43  involvement in the life of the person with a developmental disability or
    44  traumatic  brain  injury  so  as  to  have sufficient knowledge of their
    45  needs, if such persons are known to the petitioner;
    46    6. the name, age, address, education  and  other  qualifications,  and
    47  consent  of  the  proposed  guardian, standby and alternate guardian, if
    48  other than the parent, spouse, adult child if eighteen years of  age  or
    49  older  or  adult  sibling if eighteen years of age or older, and if such
    50  parent, spouse or adult child be living, why any of them should  not  be
    51  appointed guardian;
    52    [6.]  7.  the  estimated  value  of real and personal property and the
    53  annual income therefrom and  any  other  income  including  governmental
    54  entitlements  to  which  the  person  [who is intellectually disabled or
    55  person who is developmentally disabled] with a developmental  disability
    56  or traumatic brain injury is entitled; and

        S. 5842                            11
 
     1    [7.  any  circumstances which the court should consider in determining
     2  whether it is in the best interests of the person who is  intellectually
     3  disabled  or person who is developmentally disabled to not be present at
     4  the hearing if conducted.]
     5    8.  An  enumeration  of  the  specific  domains in which the person is
     6  alleged to be in need of a guardian or a statement that  full  guardian-
     7  ship is sought. Specific domains may include:
     8    (a) informed consent health care or other professional care;
     9    (b) management of money or other income, assets or property;
    10    (c) access to confidential and other sensitive information;
    11    (d)  choices  involving  education, training, employment, supports and
    12  services;
    13    (e) requesting advocacy, legal or other professional services;
    14    (f) choice of residence and shared living arrangements;
    15    (g) choices as to social and recreational activity;
    16    (h) decisions concerning travel; and
    17    (i) application for  government-sponsored  or  private  insurance  and
    18  benefits.
    19    9. A statement of the alternatives to guardianship considered, includ-
    20  ing  but  not  limited to the execution of a health care proxy, power of
    21  attorney,  representative  payee,  service  coordination,  and/or  other
    22  social  support  services,  other available supported or shared decision
    23  making, and surrogate decision-making committee,  and  reasons  for  the
    24  declination of such alternatives.
    25    §  7.  Section 1753 of the surrogate's court procedure act, as amended
    26  by chapter 198 of the laws of 2016, is amended to read as follows:
    27  § 1753. Persons to be served and noticed
    28    1. Upon [presentation] filing of the petition, process shall issue to:
    29    (a) [the parent or parents, adult children, if the petitioner is other
    30  than a parent, adult siblings, if the petitioner is other than a parent,
    31  and if the person who is intellectually disabled or person who is devel-
    32  opmentally disabled is married, to the spouse, if their  residences  are
    33  known;
    34    (b)  the person having care and custody of the person who is intellec-
    35  tually disabled or person who is developmentally disabled, or with  whom
    36  such person resides if other than the parents or spouse; and
    37    (c)  the person who is intellectually disabled or person who is devel-
    38  opmentally disabled if fourteen years of age or older for whom an appli-
    39  cation has been made in such person's behalf.
    40    2. Upon presentation of the petition, notice of such petition shall be
    41  served by certified mail to:
    42    (a) the adult siblings if the petitioner is a parent, and adult  chil-
    43  dren if the petitioner is a parent;
    44    (b)  the mental hygiene legal service in the judicial department where
    45  the facility, as defined in subdivision (a)  of  section  47.01  of  the
    46  mental hygiene law, is located if the person who is intellectually disa-
    47  bled or person who is developmentally disabled resides in such a facili-
    48  ty;
    49    (c)  in all cases, to the director in charge of a facility licensed or
    50  operated by an agency of the state of New York, if  the  person  who  is
    51  intellectually  disabled  or  person  who  is  developmentally  disabled
    52  resides in such facility;
    53    (d) one other person if designated in writing by  the  person  who  is
    54  intellectually disabled or person who is developmentally disabled; and
    55    (e) such other persons as the court may deem proper.

        S. 5842                            12

     1    3.  No  process or notice shall be necessary to a parent, adult child,
     2  adult sibling, or spouse of the person who is intellectually disabled or
     3  person who is developmentally disabled who has been declared by a  court
     4  as  being incompetent. In addition, no process or notice shall be neces-
     5  sary  to  a spouse who is divorced from the person who is intellectually
     6  disabled or person who is developmentally disabled,  and  to  a  parent,
     7  adult  child,  adult sibling when it shall appear to the satisfaction of
     8  the court that such person or persons have abandoned the person  who  is
     9  intellectually disabled or person who is developmentally disabled.]  the
    10  person  with a developmental disability, if petitioner is other than the
    11  person with a developmental disability alleged to be in need of a guard-
    12  ian; and
    13    (b) the parent or parents of the individual if the petitioner is other
    14  than the parents.
    15    2. Upon filing of the petition, notice of the petition and  the  cita-
    16  tion  along  with  notice  of  the date, time, and location of the first
    17  appearance shall be sent by certified mail, return receipt requested  to
    18  the  last known address of the following, except if any of the following
    19  is also the petitioner:
    20    (a) individuals listed in the petition pursuant to  section  seventeen
    21  hundred fifty-two of this article and subdivisions four and five of this
    22  section;
    23    (b)  the  director  in charge of a facility licensed or operated by an
    24  agency of the state of New York or their designee, if the person with  a
    25  developmental disability resides in such facility;
    26    (c)  any  other  person  if designated in writing by the person with a
    27  developmental disability; and
    28    (d) such other persons as the court may deem proper.
    29    3. Within five days of the filing of the petition, a full copy of said
    30  petition shall be served by certified mail upon the mental hygiene legal
    31  service in the judicial department in which the petition  was  filed.  A
    32  copy of proof of mailing shall be thereafter filed with the court.
    33    4.  For  petitions  to  modify  an  existing  guardianship pursuant to
    34  section seventeen hundred fifty-five of this article and/or to appoint a
    35  standby or alternate standby guardian pursuant to subdivision  seventeen
    36  hundred fifty-seven of this article, written notice must be given to all
    37  standby  and  alternate  standby guardians currently in succession for a
    38  person with a developmental disability who is the subject of  the  peti-
    39  tion by regular mail unless such standby and alternate standby guardians
    40  have consented to the petition. An affidavit of service by mail shall be
    41  filed with the court.
    42    5.  In  addition, no process or notice shall be necessary to any indi-
    43  vidual who has evinced an intent to forgo his or her relationship to the
    44  individual as manifested by his or her failure to visit and  communicate
    45  with  the person alleged to be in need of guardianship, although able to
    46  do so and not prevented or discouraged from  doing  so.  No  process  or
    47  notice shall be necessary for any individual who cannot, after due dili-
    48  gence,  reasonably  be located. The petitioner shall submit an affidavit
    49  to such effect.
    50    § 8. Section 1754 of the surrogate's court procedure act  is  REPEALED
    51  and a new section 1754 is added to read as follows:
    52  § 1754. Proceedings upon petition
    53    1.  Upon a petition for the appointment of a guardian of a person with
    54  a developmental disability eighteen years of age  or  older,  the  court
    55  shall  not  later  than forty-five days following the filing of proof of

        S. 5842                            13
 
     1  mailing upon the mental hygiene legal service, schedule an appearance in
     2  the matter.
     3    (a)  The  mental  hygiene  legal  service  shall ascertain whether the
     4  person with a developmental disability alleged to need  a  guardian  has
     5  any  objection  to  the  relief  sought  in the petition and whether the
     6  service is able to represent the interests of the person in the proceed-
     7  ing.
     8    (b) If the mental hygiene service  reports  that  the  person  with  a
     9  developmental  disability  alleged  to  need  a  guardian objects to the
    10  relief sought in the petition, the court shall appoint  the  service  as
    11  counsel  for the person. If the service is not available to serve as the
    12  person's counsel and the person does not  otherwise  have  counsel,  the
    13  court shall appoint counsel for the person from among attorneys eligible
    14  for  such  appointment  pursuant to section thirty-five of the judiciary
    15  law. The court shall ensure that the individual's counsel, whether it be
    16  the service or appointed counsel, have demonstrated experience with  and
    17  knowledge  of  representing individuals with developmental disabilities.
    18  The appointment of such counsel shall be at no cost to the petitioners.
    19    (c) If the mental hygiene legal service reports that the person with a
    20  developmental disability alleged to need a guardian does not  object  to
    21  relief  sought in the petition, the person's interests shall continue to
    22  be represented by the service,  if  available,  and  the  service  shall
    23  conduct  an  examination  into  the allegations of fact contained in the
    24  petition and file with the court and serve upon the petitioner or  their
    25  counsel  no  later  than ten days prior to the appearance date an answer
    26  confirming or denying the allegations in the petition and report  as  to
    27  whether  the service finds grounds to object to the relief sought in the
    28  petition. If the service objects to the relief sought in  the  petition,
    29  the service shall, along with its answer, serve a copy of its underlying
    30  report  and  findings  upon  the  petitioner  and/or  their counsel. The
    31  service will otherwise perform its  functions  consistent  with  uniform
    32  regulations promulgated by the appellate division of the supreme court.
    33    (d)  If  a  person  with  a developmental disability alleged to need a
    34  guardian who does not object, does not otherwise appear by  the  service
    35  or  other  counsel, the court shall appoint a guardian ad litem pursuant
    36  to this section and section four hundred three of this act. Any guardian
    37  ad litem appointed pursuant to this section shall  conduct  an  investi-
    38  gation  into  the allegations of fact contained in the petition and file
    39  with the court and serve no later than ten days prior to the  appearance
    40  date,  a report of its findings confirming or disconfirming said allega-
    41  tions, and if appropriate and upon consent of the person with a develop-
    42  mental disability nominate a person or entity of the respondent's choos-
    43  ing to serve as guardian, as well as any other matter which could assist
    44  the court's consideration of the matter, and serve a copy of the  report
    45  upon  the  petitioner  and  petitioner's counsel. The court shall ensure
    46  that the individual's counsel, whether it be the  service  or  appointed
    47  counsel, have demonstrated experience with and knowledge of representing
    48  individuals  with  developmental  disabilities.  The appointment of such
    49  guardian ad litem shall be at no cost to the petitioner.
    50    (e) The mental hygiene legal service, any other counsel for the person
    51  with a developmental disability alleged to need a guardian, or the guar-
    52  dian ad litem may apply to the court for permission to inspect the clin-
    53  ical records pertaining to the person with  a  developmental  disability
    54  alleged  to  need  a guardian in accordance with state and federal laws.
    55  The service, any other counsel for the person with a developmental disa-
    56  bility and the guardian ad litem, if any, shall be  afforded  access  to

        S. 5842                            14

     1  the  person's  clinical records without a court order to the extent that
     2  such access is otherwise authorized by state and federal laws.
     3    (f)  The petitioner, the mental hygiene legal service, any other coun-
     4  sel for the person with a developmental disability  alleged  to  need  a
     5  guardian,  and  the guardian ad litem, if any, may request the court for
     6  further evaluation of the person by a physician, psychiatrist or  certi-
     7  fied  psychologist who has demonstrated experience with and knowledge of
     8  persons with developmental disabilities. In the event that further eval-
     9  uations are required, the court may grant  appropriate  adjournments  of
    10  the  initial  appearance  date  and  may direct, in the case of a person
    11  determined to be indigent, that any further court authorized evaluations
    12  be paid for out of funds available pursuant to  section  thirty-five  of
    13  the judiciary law.  Such evaluation shall be at no cost to the petition-
    14  er.
    15    2.  At  the  first  appearance, the respondent shall be present unless
    16  such presence is excused by the court based upon the standard set  forth
    17  in  paragraph  (d)  of this subdivision and upon recommendation of peti-
    18  tioner and/or petitioner's counsel, the mental  hygiene  legal  service,
    19  respondent's  counsel,  or  the guardian ad litem if the respondent does
    20  not have counsel.   The petitioner shall also  be  present  and  may  be
    21  represented by counsel. Any other party required to be served or noticed
    22  with process in the matter may be present.
    23    (a)  Prior to such appearance, the petitioner, either personally or by
    24  counsel, may confer with the service, respondent's counsel and the guar-
    25  dian ad litem if respondent does not have counsel and agree to amend any
    26  part of its petition and allegations of fact therein. Any  such  amended
    27  petition  shall  be  filed with the court prior to the date of the first
    28  appearance.
    29    (b) At the first appearance, the court shall examine the answer of the
    30  service, respondent's counsel, or the report of the guardian  ad  litem,
    31  if  any,  and may hear from the petitioner and the service, respondent's
    32  counsel and the guardian ad litem, if any, on the contents of  the  said
    33  answer or report and any amended petition filed.
    34    (c)  The  court  may  direct  that an order and decree of guardianship
    35  issue, including the authority of the guardian to act on behalf  of  the
    36  respondent  with respect to any matter in which petitioner, the service,
    37  respondent's counsel, and the guardian ad litem, if any,  all  agree  on
    38  the  record  that  the respondent requires the requested relief and does
    39  not object to such relief.
    40    (d) In the event that the petition cannot be disposed of by the agree-
    41  ment of the court and all of the parties, the  court  shall  schedule  a
    42  hearing  in the matter within forty-five days of the first appearance at
    43  which the respondent shall be present unless  it  shall  appear  to  the
    44  court  that  the  respondent's presence is medically contraindicated, in
    45  that it would be likely to cause harm to the respondent, or  under  such
    46  other  circumstances  raised  by  or  on behalf of the respondent as the
    47  court agrees that the respondent's presence would not be in his  or  her
    48  best  interests,  provided  however that the respondent's presence shall
    49  not be waived over the objection of the service,  respondent's  counsel,
    50  or  a  guardian  ad litem, if any, in which case the court shall conduct
    51  the hearing where the respondent resides, if the court is satisfied that
    52  the respondent's presence would be harmful to the respondent.
    53    3. If there are any objections to the relief sought by the petitioner,
    54  the respondent has a right to a hearing or jury trial,  if  demanded  by
    55  the  respondent.  In  addition,  the  court may conduct a hearing at the
    56  request of any party or on its own motion. At any such hearing or trial,

        S. 5842                            15
 
     1  the petitioner must establish by clear and convincing evidence any facts
     2  alleged in the petition or amended petition which are  controverted  and
     3  are  relevant  to whether respondent has a developmental disability, and
     4  if  so,  whether  appointment of a guardian is required and the scope of
     5  the guardian's powers.   Any other matter must be  proven  by  the  fair
     6  preponderance of the evidence presented and admitted.
     7    4.  If,  upon  conclusion  of  such hearing or jury trial, if any, the
     8  court is satisfied that the respondent has  a  developmental  disability
     9  and requires the appointment of a guardian of the person or property, or
    10  both,  it  shall make a decree naming such person or persons to serve as
    11  such guardians. The powers of the guardian  shall  be  tailored  to  the
    12  needs of the respondent.
    13    §  9.  The  surrogate's court procedure act is amended by adding a new
    14  section 1754-a to read as follows:
    15  § 1754-a. Decision making standard
    16    Decisions made by a guardian appointed pursuant to this article  shall
    17  be made in accordance with the following standards:
    18    1.  A  guardian  shall  exercise authority only as necessitated by the
    19  person with a developmental disability's limitations, and, to the extent
    20  possible, shall encourage the person with a developmental disability  to
    21  participate in decisions and to act on his or her own behalf.
    22    2. A guardian shall consider the expressed desires and personal values
    23  of  the person with a developmental disability to the extent known, when
    24  making decisions and shall consult with the person with a  developmental
    25  disability whenever meaningful communication is possible.
    26    3. If the person's wishes are unknown and remain unknown after reason-
    27  able efforts to discern them, the decision shall be made on the basis of
    28  the  best  interests  of  the  person with a developmental disability as
    29  determined by the guardian. In determining the  best  interests  of  the
    30  person  with  a  developmental  disability, the guardian shall weigh the
    31  reason for and nature of the proposed action; the benefit  or  necessity
    32  of the action, the possible risks and other consequences of the proposed
    33  action; and any available alternatives and their risks, consequences and
    34  benefits.  The  guardian  shall take into account any other information,
    35  including the views of family and friends, that  the  guardian  believes
    36  the person with a developmental disability would have considered if able
    37  to act for herself or himself.
    38    §  10. Section 1755 of the surrogate's court procedure act, as amended
    39  by chapter 198 of the laws of 2016, is amended to read as follows:
    40  § 1755. Modification order
    41    Any person [who is intellectually disabled or person who  is  develop-
    42  mentally disabled] with a developmental disability eighteen years of age
    43  or  older,  or any person on behalf of any person [who is intellectually
    44  disabled or person who is developmental disabled] with  a  developmental
    45  disability  for  whom  a  guardian  has been appointed, may apply to the
    46  court [having jurisdiction over  the  guardianship  order]  pursuant  to
    47  section seventeen hundred fifty-one-a of this article requesting modifi-
    48  cation  of such order in order to protect the person [who is intellectu-
    49  ally disabled's, or person who is  developmentally  disabled's]  with  a
    50  developmental   disability's  financial  situation  and/or  his  or  her
    51  personal interests. The court may, upon receipt of any such  request  to
    52  modify the guardianship order, appoint a guardian ad litem. Such guardi-
    53  an  ad  litem  shall  have demonstrated experience with and knowledge of
    54  persons with developmental disabilities. The court shall so  modify  the
    55  guardianship  order if in its judgment the interests of the guardian are
    56  adverse to those of the person [who is intellectually disabled or person

        S. 5842                            16

     1  who is developmentally disabled] with a developmental disability  or  if
     2  the  interests of justice will be best served including, but not limited
     3  to, facts showing the  necessity  for  protecting  the  personal  and/or
     4  financial  interests  of  the  person [who is intellectually disabled or
     5  person who is developmentally disabled] with a developmental disability.
     6    § 11. Section 1756 of the surrogate's court procedure act, as  amended
     7  by chapter 198 of the laws of 2016, is amended to read as follows:
     8  §  1756. Limited [guardian of the property] purpose and/or limited dura-
     9             tion guardianship
    10    1. a. When it shall appear to the satisfaction of the court that  such
    11  person  [who is intellectually disabled or person who is developmentally
    12  disabled] with a developmental disability for whom  an  application  for
    13  guardianship  is  made pursuant to this article is eighteen years of age
    14  or older and is wholly or substantially self-supporting by means of  his
    15  or  her  wages  or earnings from employment, the court is authorized and
    16  empowered to appoint a limited guardian of the property of  such  person
    17  [who  is  intellectually disabled or person who is developmentally disa-
    18  bled] who shall receive, manage, disburse  and  account  for  only  such
    19  property of said person [who is intellectually disabled or person who is
    20  developmentally  disabled]  with  a developmental disability as shall be
    21  received from other than the wages or earnings of said person.
    22    b. The person [who is intellectually disabled or person who is  devel-
    23  opmentally  disabled] who is developmentally disabled for whom a limited
    24  guardian of the property has been appointed  shall  have  the  right  to
    25  receive  and  expend  any  and all wages or other earnings of his or her
    26  employment and shall have the power to contract or legally bind  himself
    27  or  herself  for  such  sum  of money not exceeding one month's wages or
    28  earnings from such employment or three  hundred  dollars,  whichever  is
    29  greater, or as otherwise authorized by the court.
    30    2.  When it shall appear to the satisfaction of the court, either upon
    31  a petition for guardianship filed as  permitted  by  sections  seventeen
    32  hundred  fifty-one  and  seventeen  hundred fifty-two of this article or
    33  upon a petition filed pursuant to this section in a simplified format to
    34  be established by the office of  court  administration  in  consultation
    35  with  the  office  for  people with developmental disabilities and other
    36  interested stakeholders, that a person with a  developmental  disability
    37  needs the assistance of a guardian of the person and/or property for the
    38  purpose  of  making  a  single  decision or for a brief stated period of
    39  transition in such person's life, the court may appoint  a  limited-pur-
    40  pose  guardian  of the person and/or property to effectuate such a deci-
    41  sion or transition. In any such case, the provisions of  section  seven-
    42  teen  hundred  fifty-four  of  this article shall apply, except that the
    43  period for the rendering of a report by the mental hygiene legal service
    44  or other respondent's counsel may be  shortened  as  may  be  reasonably
    45  necessary  to  meet  the needs of the respondent under the circumstances
    46  presented. An order appointing and  empowering  such  a  limited-purpose
    47  guardian  of  the  person  and/or  property shall state specifically the
    48  duration and scope of such guardian's authority.
    49    § 12. Section 1757 of the surrogate's court procedure act, as  amended
    50  by chapter 198 of the laws of 2016, is amended to read as follows:
    51  § 1757. Standby  guardian of a person [who is intellectually disabled or
    52            person who is developmentally disabled] with  a  developmental
    53            disability
    54    1.  Upon  application, a standby guardian of the person or property or
    55  both of a person [who is intellectually disabled or person who is devel-
    56  opmentally disabled] with a developmental disability may be appointed by

        S. 5842                            17
 
     1  the court. Any such application shall be made upon notice to the  mental
     2  hygiene  legal service. The court may also, upon application, appoint an
     3  alternate and/or successive alternates to such standby guardian, to  act
     4  if  such  standby  guardian shall die, or become incapacitated, or shall
     5  renounce. Such appointments by the court shall  be  made  in  accordance
     6  with  the  provisions  of  this article, except that the court shall not
     7  require the petitioner to resubmit proof of the need for guardianship.
     8    2. Such standby guardian, or alternate in the event  of  such  standby
     9  guardian's  death,  incapacity  or  renunciation,  shall without further
    10  proceedings be empowered to assume the duties of his or her office imme-
    11  diately upon death, renunciation or adjudication of incompetency of  the
    12  guardian or standby guardian appointed pursuant to this article, subject
    13  only  to  the  filing  of  an application for confirmation of his or her
    14  appointment by the  court  within  one  hundred  eighty  days  following
    15  assumption  of  his  or her duties of such office. Before confirming the
    16  appointment of the standby guardian or alternate guardian, the court may
    17  conduct a hearing pursuant to section seventeen  hundred  fifty-four  of
    18  this  article  upon  petition  by anyone on behalf of the person [who is
    19  intellectually disabled or person who is developmentally disabled]  with
    20  a developmental disability or the person [who is intellectually disabled
    21  or person who is developmentally disabled] with a developmental disabil-
    22  ity  if  such  person  is  eighteen  years  of age or older, or upon its
    23  discretion, except that the court shall not require  the  petitioner  to
    24  resubmit proof of the need for guardianship.
    25    3.  Failure  of  a standby or alternate standby guardian to assume the
    26  duties of guardian, seek court confirmation or to renounce the guardian-
    27  ship within sixty days of written notice by certified mail  or  personal
    28  delivery  given  by  or  on  behalf of the person [who is intellectually
    29  disabled or person who is developmentally disabled] with a developmental
    30  disability of a prior guardian's inability to serve and the  standby  or
    31  alternate  standby  guardian's duty to serve, seek court confirmation or
    32  renounce such role shall allow the court to:
    33    (a) deem the failure an implied renunciation of guardianship, and
    34    (b) authorize, notwithstanding the time period provided for in  subdi-
    35  vision  two  of  this  section to seek court confirmation, any remaining
    36  standby or alternate standby guardian to serve in such capacity provided
    37  (i) an application for confirmation and appropriate notices pursuant  to
    38  subdivision one of section seventeen hundred fifty-three of this article
    39  are  filed,  or (ii) an application for modification of the guardianship
    40  order pursuant to section seventeen hundred fifty-five of  this  article
    41  is  filed,  except  that  the  court shall not require the petitioner to
    42  resubmit proof of the need for guardianship.
    43    § 13. Section 1758 of the surrogate's court procedure act, as  amended
    44  by chapter 198 of the laws of 2016, is amended to read as follows:
    45  § 1758. Court jurisdiction
    46    1.  The jurisdiction of the court to hear proceedings pursuant to this
    47  article shall be subject to article eighty-three of the  mental  hygiene
    48  law.
    49    2.  After the appointment of a guardian, standby guardian or alternate
    50  guardians, the court shall have and retain general jurisdiction over the
    51  person [who is intellectually disabled or person who is  developmentally
    52  disabled]  with  a developmental disability for whom such guardian shall
    53  have been appointed, to take of its own motion or to entertain and adju-
    54  dicate such steps and proceedings relating to such guardian, standby, or
    55  alternate guardianship as may be deemed  necessary  or  proper  for  the

        S. 5842                            18
 
     1  welfare  of such person [who is intellectually disabled or person who is
     2  developmentally disabled] with a developmental disability.
     3    §  14. Section 1759 of the surrogate's court procedure act, as amended
     4  by chapter 198 of the laws of 2016, is amended to read as follows:
     5  § 1759. Duration of guardianship
     6    1. Such guardianship shall not terminate at the  age  of  majority  or
     7  marriage of such person [who is intellectually disabled or person who is
     8  developmentally  disabled]  with  a  developmental  disability but shall
     9  continue during the life of such person,  or  until  terminated  by  the
    10  court.
    11    2.  A person eighteen years or older for whom such a guardian has been
    12  previously appointed or anyone, including the guardian, on behalf  of  a
    13  person  [who is intellectually disabled or person who is developmentally
    14  disabled] with a developmental disability for whom a guardian  has  been
    15  appointed  may  petition  the  court  which made such appointment or the
    16  court in his or her county of residence to have the guardian  discharged
    17  and  a  successor  appointed,  or  to  have the guardian of the property
    18  designated as a limited guardian of the property, or to have the guardi-
    19  anship order modified, dissolved or otherwise amended. Upon such a peti-
    20  tion for review, the court shall conduct a hearing pursuant  to  section
    21  seventeen hundred fifty-four of this article except that the court shall
    22  not  require  the petitioner to resubmit proof of the need for guardian-
    23  ship.
    24    3. Upon marriage of such person [who  is  intellectually  disabled  or
    25  person  who is developmentally disabled] with a developmental disability
    26  for whom such a guardian has  been  appointed,  the  court  shall,  upon
    27  request  of  the person [who is intellectually disabled or person who is
    28  developmentally disabled] with a developmental  disability,  spouse,  or
    29  any  other  person acting on behalf of the person [who is intellectually
    30  disabled or person who is developmentally disabled] with a developmental
    31  disability, review the need, if any, to modify,  dissolve  or  otherwise
    32  amend the guardianship order including, but not limited to, the appoint-
    33  ment  of  the  spouse as standby guardian. The court, in its discretion,
    34  may conduct such review pursuant to section seventeen hundred fifty-four
    35  of this article except that the court shall not require  the  petitioner
    36  to resubmit proof of the need for guardianship.
    37    §  15. Section 1760 of the surrogate's court procedure act, as amended
    38  by chapter 198 of the laws of 2016, is amended to read as follows:
    39  § 1760. Corporate guardianship
    40    No corporation may be appointed  guardian  of  the  person  under  the
    41  provisions  of this article, except that a non-profit corporation organ-
    42  ized and existing under the laws of the state of New York and having the
    43  corporate power to act as guardian of a person  [who  is  intellectually
    44  disabled or person who is developmentally disabled] with a developmental
    45  disability,  may be appointed as the guardian of the person only of such
    46  person [who is intellectually disabled or person who is  developmentally
    47  disabled]  with a developmental disability. Upon specific request to and
    48  approval by the court, such authority of a not-for-profit corporation as
    49  guardian of the person with developmental disabilities shall include the
    50  authority to establish a supplemental needs trust account for the  bene-
    51  fit of the person with a developmental disability, if necessary.
    52    §  16. Section 1761 of the surrogate's court procedure act, as amended
    53  by chapter 198 of the laws of 2016, is amended to read as follows:
    54  § 1761. Application of other provisions
    55    To the extent that the context thereof shall admit, the provisions  of
    56  article  seventeen of this act shall apply to all proceedings under this

        S. 5842                            19
 
     1  article with the same force and effect as if  an  "infant",  as  therein
     2  referred  to, were a "person [who is intellectually disabled" or "person
     3  who is developmentally disabled] with  a  developmental  disability"  as
     4  herein defined, and a "guardian" as therein referred to were a "guardian
     5  of  the  person  [who  is  intellectually  disabled" or a "guardian of a
     6  person who is developmentally disabled] with a developmental disability"
     7  as herein provided for.
     8    § 17. The surrogate's court procedure act is amended by adding  a  new
     9  section 1762 to read as follows:
    10  § 1762. Annual account and asset verification form
    11    1.  A  guardian of the property of a person with a developmental disa-
    12  bility must, within the counties within the city of New York and  within
    13  the counties of Nassau, Orange, Suffolk and Westchester, annually within
    14  thirty  days  after the anniversary of his or her appointment and within
    15  every other county in the month of January of each year, as long as  any
    16  of the person with a developmental disability's property of the proceeds
    17  thereof  remains  under  the  guardian's  control, file in the court the
    18  model guardianship account and asset verification form annexed hereto. A
    19  copy of the annual guardianship account and asset verification  form  is
    20  also  to  be  sent  by regular mail to all standby and alternate standby
    21  guardians then named in the court's decree to their last known address.
    22    2. The model guardianship account and asset verification form shall be
    23  as follows:
    24              GUARDIANSHIP ACCOUNT AND ASSET VERIFICATION FORM
    25  *The original of this form is to be filed with the Surrogate Court Clerk
    26  where guardianship was originally obtained. A copy of this form is to be
    27  sent to all standby guardians and alternate standby guardians by regular
    28  mail.
    29  I. Guardianship Data
    30  GUARDIAN INFORMATION
    31  _________________________
    32                                  Home Phone #: ______________________
    33  Guardian's Name                 Mobile Phone #:_____________________
    34                                  Work Phone#:________________________
    35  _________________________       E-mail Address (if any):_________________
    36  Street Address
    37  _________________________
    38  City State Zip
    39  WARD INFORMATION
    40  ___________________________
    41  Ward's Name & Date of Birth
    42  ___________________________
    43  Street Address
    44  ___________________________
    45  City State Zip
    46  If the Ward lives in a residential facility or other setting under
    47  someone's care, please provide the following information:
    48  Name/Address: ________________________________
    49  Contact Person: ________________________________
    50  Phone #: ______________________________________
    51  E-mail Address (if any): _________________________
    52  II. Guardianship Account and Asset Verification Form
    53  Note: Absolutely  NO  WITHDRAWALS  are  permitted  from  a  guardianship
    54  account without a prior written court order from the ____________ County
    55  Surrogate's court.

        S. 5842                            20
 
     1  Please have the financial institution complete this section if a Guardi-
     2  anship Account exists for the individual for whom you serve as guardian.
     3  This  is  to  certify that the records of (Name & Address of institution
     4  holding assets indicated herein) show that (Name & Address of Guardian),
     5  as Guardian of (Name of Ward) had a balance as of December  31,  (insert
     6  year)  of  $(Insert  amount)  in Account # ______________, which is in a
     7  Court Restricted Guardianship Account with this  Financial  Institution.
     8  This  account  earned interest in the amount of $_________ in (year), as
     9  will be reported on the 1099 for this Account.
    10  In witness whereof, the Financial Institution has hereunto set its  hand
    11  and corporate seal the day and year noted herein.
    12  By: ______________________
    13  Official Title: ______________________
    14  *************************************************************************
    15  If  you  are  not  holding funds for your Ward, please sign below in the
    16  presence of a Notary Public.
    17  I certify under penalty of perjury that I am not holding  any  funds  in
    18  any financial institution or otherwise for my Ward, (Name of Ward).
    19  Guardian Signature : _______________________
    20  Print Name: _______________________
    21  Sworn to and subscribed before me:
    22  __________________________
    23  Notary Public
    24    §  18. Paragraph a of subdivision 1 and subdivision 4 of section 35 of
    25  the judiciary law, paragraph a of subdivision 1 as  amended  by  chapter
    26  817  of the laws of 1986, subdivision 4 as amended by chapter 706 of the
    27  laws of 1975 and as renumbered by chapter 315 of the laws of  1985,  are
    28  amended to read as follows:
    29    a. When a court orders a hearing in a proceeding upon a writ of habeas
    30  corpus  to inquire into the cause of detention of a person in custody in
    31  a state institution, or when it orders a hearing in a  civil  proceeding
    32  to  commit  or transfer a person to or retain him in a state institution
    33  when such person is alleged to be mentally ill, mentally defective or  a
    34  narcotic  addict,  or when it orders a hearing for the commitment of the
    35  guardianship and custody of a child to an authorized agency by reason of
    36  the mental illness or [mental retardation] developmental disability of a
    37  parent, or when it orders  a  hearing  for  guardianship  under  article
    38  seventeen-a  of  the surrogate's court procedure act or when it orders a
    39  hearing to determine whether consent to the adoption of a child shall be
    40  required of a parent who is alleged to  be  mentally  ill  or  [mentally
    41  retarded]  have  a developmental disability, or when it orders a hearing
    42  to determine the best interests of a child when the parent of the  child
    43  revokes  a  consent to the adoption of such child and such revocation is
    44  opposed or in any adoption or custody proceeding if it  determines  that
    45  assignment  of  counsel in such cases is mandated by the constitution of
    46  this state or of the United States, the  court  may  assign  counsel  to
    47  represent  such  person if it is satisfied that he is financially unable
    48  to obtain counsel. Upon an appeal taken from an  order  entered  in  any
    49  such  proceeding,  the  appellate  court may assign counsel to represent
    50  such person upon the appeal if it is satisfied that  he  is  financially
    51  unable to obtain counsel.
    52    4.  In any proceeding described in paragraph (a) of subdivision one of
    53  this section, when a person is alleged to be a person  with  a  develop-
    54  mental disability or traumatic brain injury in need of a guardian pursu-
    55  ant  to  article  seventeen-a of the surrogate's court procedure act, be
    56  mentally ill, mentally defective or a narcotic addict, the  court  which

        S. 5842                            21
 
     1  ordered  the  hearing may appoint no more than two psychiatrists, certi-
     2  fied psychologists or physicians to examine and testify at  the  hearing
     3  upon  the  condition  of  such  person.  A psychiatrist, psychologist or
     4  physician  so  appointed shall, upon completion of his services, receive
     5  reimbursement for expenses reasonably incurred  and  reasonable  compen-
     6  sation  for  such  services, to be fixed by the court. Such compensation
     7  shall not exceed two hundred dollars if one  psychiatrist,  psychologist
     8  or  physician is appointed, or an aggregate sum of three hundred dollars
     9  if two psychiatrists, psychologists or physicians are appointed,  except
    10  that  in  extraordinary  circumstances the court may provide for compen-
    11  sation in excess of the foregoing limits.
    12    § 19. This act shall take effect on  the  one  hundred  eightieth  day
    13  after it shall have become a law.
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