NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5840
SPONSOR: Lavine TITLE OF BILL: An act to amend the surrogate's court procedure act
and the judiciary law, in relation to guardianship and health care deci-
sions of persons with developmental disabilities; and to repeal certain
provisions of the surrogate's court procedure act relating thereto
PURPOSE OF THE BILL:
This bill amend the Surrogate's Court Procedure Act (SCPA) to better
reflect the rights of individuals with developmental disabilities by
removing obsolete language and addressing current legal standards.
SUMMARY OF PROVISIONS:
Section 1 of this bill would amend the SCPA § 1750 to update language,
clarify that individuals with traumatic brain injuries may use Article
17-A to obtain guardianship, and specify that guardianships entered into
prior to the effective date of this bill remains in full force and
effect except as amended by § 1755 and that guardianship orders issued
prior to the effective date of these changes needing future changes to
succession would not be required to resubmit the proof of the need for
guardianship.
Section 2 of the bill would repeal SCPA § 1750-a.
Section 3 of the bill would amend SCPA § 1750-b to update language and
create consistent internal language.
Section 4 of the bill would amend SCPA § 1751 to create consistent
internal language, include specific new language to include spouses,
siblings or adult children in the list of those who may petition to be
appointed as guardian of a person with a developmental disability, and
clarify that the individual who is the subject of the petition can
voluntarily consent to the appointment of a guardian.
Section 5 of the bill would add a new section 1751-a to the SCPA enti-
tled, Petition for appointment: where made (venue). Pursuant to this new
section, proceedings under this Article shall be made in the county in
which the person with a developmental disability resides, or is phys-
ically present, when the proceeding is commenced. In addition, this
section provides that petitions to modify current guardianship orders
may be brought in the county where guardianship was initially granted or
where the person with a developmental disability resides.
Section 6 of the bill would amend the SCPA § 1752 to create consistent
internal language and amend the necessary contents of a petition for
appointment as a guardian of a person with a developmental disability.
It would also enumerate the specific domains for which a person with a
developmental disability may need a guardian to allow for tailoring of
the final decree.
Section 7 of the bill would amend the SCPA § 1753 to change who would be
given notice of the filing of a petition for guardianship and how they
would be given notice.
Section 8 of the bill would repeal the current SCPA § 1754 and replace
it with an entirely new SCPA § 1754 providing a requirement that an
appearance be scheduled in the matter, with MHLS being involved in every
case (not just those where the individual resides in a mental hygiene
facility) and that MHLS be allowed access to the person's pertinent
records. MHLS shall determine if the person with a developmental disa-
bility has any objection to the relief sought or whether MHLS is in
accord with the areas of authority sought by the proposed guardian. This
section would also provide MHLS the ability to request an expert evalu-
ation, if necessary, to ascertain the need for guardianship in any
area(s).
Section 9 of the bill would add a new section 1754-a to the SCPA to
create a decision making standard to be used by a guardian acting on
behalf of a person with a developmental disability.
Section 10 of the bill would amend the SCPA § 1755 to replace create
internally consistent language in the Article and require that any guar-
dians ad litem assigned to these matters have demonstrated experience
with and knowledge of persons with developmental disabilities.
Section 11 of the bill would amend the SCPA § 1756 to include new
language with regard to the appointment of a guardian for a limited
purpose such making a single decision or for a brief stated period of
time.
Sections 12 -16 of the bill would amend the SCPA §§ 1757 through 1761 to
create internal consistency in the Article and clarify that courts shall
not require petitioners to resubmit proof of the need for guardianship
in certain cases where the need was previously adjudicated.
Section 15 of the bill would also amend SCPA § 1760 to both create
internal consistency in language and provide that not-for-profit corpo-
rations that serve as guardian of the person have the authority to
establish supplemental needs trusts for the benefit of the individual
with a developmental disability, if necessary.
Section 17 of the bill would add a new section § 1762 to the SCPA enti-
tled Annual account and asset verification form to simplify the annual
reporting requirement for guardians of the property.
Section 18 of the bill would amend Judiciary Law § 35 to provide that
when a surrogate's court orders a hearing for guardianship under Article
17-A that the court may assign counsel to represent the individual for
whom guardianship is proposed at no cost if the individual is not finan-
cially able to obtain counsel. This section would further amend Judici-
ary Law § 35 to provide that where an expert opinion as to capacity is
required by the court, it shall be so ordered.
Section 19 of the bill would provide for an effective date 180 days
after it becomes law.
EXISTING LAW:
Article 17-A of the Surrogate's Court Procedure Act currently uses
outdated language and the offensive phrase "mentally retarded" when
describing persons with developmental disabilities, has not been updated
to better comply with current State and federal law and does not specif-
ically . provide for a limited guardianship.
PRIOR LEGISLATIVE HISTORY:
This is new bill.
STATEMENT IN SUPPORT:
Article 17-A of the Surrogate's Court Procedure Act must be amended to
reflect current clinical language, the rights of persons with develop-
mental disabilities and current legal standards of due process under
both the state and federal law. This proposed language will make avail-
able to persons with developmental disabilities the least restrictive
form of guardianship intervention which assists them in meeting their
needs, while permitting them to exercise the independence and self-det-
ermination of which they are capable.
The personal or property management needs of the person subject to the
guardianship under this Article must be tailored to the needs of that
person. This bill would create a process that promotes and protects the
well-being of the person with developmental disabilities and encourages
the development of maximum self-reliance. This bill will also assist in
preserving the privacy of health information relating to persons with
developmental disabilities who are subject to guardianship by the new
processes created, and strengthen the burden of proof related to the
need for, and scope of, guardianship in contested cases.
This bill will creates a standard for guardian decision-making that
takes in account the personal wishes, preferences and desires of the
person with developmental disabilities, and which affords the person
with a developmental disability the greatest amount of independence,
self-determination and participation the decisions affecting their life.
A new section is added to the Surrogate's Court Procedure Act to create
better accountability of guardians to the appointing court by requiring
an annual report on forms to be developed by the Office of Court Admin-
istration.
BUDGET IMPLICATIONS:
Unknown at this time.
LOCAL IMPACT:
This bill has no anticipated local impact.
EFFECTIVE DATE:
The bill would be effective on the 180th day.
