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A06510 Summary:

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A06510 Committee Votes:

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A06510 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6510--A
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 25, 2015
                                       ___________
 
        Introduced  by  M. of A. WEINSTEIN, GOTTFRIED, LENTOL, STECK, ZEBROWSKI,
          COLTON, ROBINSON, ROSENTHAL, TITUS -- Multi-Sponsored by -- M.  of  A.
          ARROYO, BLAKE, BRENNAN, CLARK, COOK, CRESPO, DAVILA, DenDEKKER, GALEF,
          GLICK,  JAFFEE,  PICHARDO,  STIRPE  --  read  once and referred to the
          Committee on Judiciary -- reported and referred to  the  Committee  on
          Codes  --  committee  discharged,  bill  amended, ordered reprinted as
          amended and recommitted to said committee
 
        AN ACT to amend the mental hygiene law, in relation to  requiring  peti-
          tioners  for  appointment  of a guardian to identify other persons who
          may be able to manage the affairs of an incapacitated person
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision (e) of section 81.03 of the mental hygiene law,
     2  as  amended  by  chapter  438 of the laws of 2004, is amended to read as
     3  follows:
     4    (e) "available resources" means resources such as, but not limited to,
     5  all persons identified in subparagraphs (i) through  (iv)  of  paragraph
     6  one  of subdivision (g) of section 81.07 of this article, visiting nurs-
     7  es, homemakers, home health  aides,  adult  day  care  and  multipurpose
     8  senior citizen centers, powers of attorney, health care proxies, trusts,
     9  representative and protective payees, and residential care facilities.
    10    §  2.  Paragraph  7  of subdivision (a) of section 81.06 of the mental
    11  hygiene law, as amended by chapter 438 of the laws of 2004,  is  amended
    12  to read as follows:
    13    7. the chief executive officer, or the designee of the chief executive
    14  officer,  of  a facility in which the person alleged to be incapacitated
    15  is a patient or resident, except  for  where  the  petition  is  brought
    16  primarily for purposes of bill collection or resolving a bill collection
    17  dispute.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09900-04-5
        A. 6510--A                          2
 
     1    §  3.  Subparagraph (iii) of paragraph 1 of subdivision (g) of section
     2  81.07 of the mental hygiene law, as amended by chapter 438 of  the  laws
     3  of 2004, is amended to read as follows:
     4    (iii)  any  person  or persons designated by the alleged incapacitated
     5  person with authority pursuant to [sections 5-1501, 5-1505, and  5-1506]
     6  title  fifteen  of  article  five  of  the  general  obligations law, or
     7  sections two thousand nine hundred five and two  thousand  nine  hundred
     8  eighty-one of the public health law, if known to the petitioner; and
     9    §  4.  Paragraph  14 of subdivision (a) of section 81.08 of the mental
    10  hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
    11  read as follows:
    12    14.  the available resources, if any, that have been considered by the
    13  petitioner, the steps taken to identify  available  resources,  and  the
    14  petitioner's  opinion as to [their sufficiency and reliability] why such
    15  resources are not sufficient or reliable  enough  to  meet  the  alleged
    16  incapacitated person's needs without the appointment of a guardian;
    17    §  5.  Paragraph  15 of subdivision (a) of section 81.08 of the mental
    18  hygiene law is renumbered paragraph 18, and three new paragraphs 15,  16
    19  and 17 are added to read as follows:
    20    15.  for  all  available  resources  considered by the petitioner, the
    21  name, address, telephone number along with any  other  contact  informa-
    22  tion, relationship to the alleged incapacitated person and any documents
    23  known to the petitioner that grant the available resource legal authori-
    24  ty  to  manage  the  personal,  medical  and/or financial affairs of the
    25  alleged incapacitated person;
    26    16. if the petitioner seeks to revoke any lawfully  executed  appoint-
    27  ment  or delegation made by the alleged incapacitated person pursuant to
    28  title fifteen of article five of the general  obligations  law,  section
    29  twenty-nine  hundred sixty-five or twenty-nine hundred eighty-one of the
    30  public health law, or any living will,  the  petition  shall  set  forth
    31  specific reasons for the revocation;
    32    17. an affirmative statement that the petition is not brought primari-
    33  ly  for  the  purpose  of bill collection or resolving a bill collection
    34  dispute;
    35    § 6. Subparagraph (xi) of paragraph 5 of subdivision  (c)  of  section
    36  81.09  of  the mental hygiene law, as amended by chapter 438 of the laws
    37  of 2004, is amended to read as follows;
    38    (xi) has the person alleged to be incapacitated made  any  appointment
    39  or  delegation  pursuant  to  [section  5-1501, 5-1505, or 5-1506] title
    40  fifteen of article five of the  general  obligations  law,  section  two
    41  thousand nine hundred sixty-five or two thousand nine hundred eighty-one
    42  of the public health law, or a living will;
    43    §  7.  Paragraph  1  of subdivision (d) of section 81.19 of the mental
    44  hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
    45  read as follows:
    46    1.  any  appointment  or  delegation  made by the person alleged to be
    47  incapacitated in accordance with  the  provisions  of  [section  5-1501,
    48  5-1601  or  5-1602]  title  fifteen of article five of the general obli-
    49  gations law and sections two thousand nine hundred  sixty-five  and  two
    50  thousand nine hundred eighty-one of the public health law;
    51    §  8. The opening paragraph of subdivision (e) of section 81.19 of the
    52  mental hygiene law, as added by chapter 698 of  the  laws  of  1992,  is
    53  amended to read as follows:
    54    [Unless  the court finds that no other person or corporation is avail-
    55  able or willing to act as guardian, or to provide  needed  services  for
        A. 6510--A                          3

     1  the incapacitated person, the] The following persons or corporations may
     2  not serve as guardian:
     3    §  9.  Paragraph  2  of subdivision (b) of section 81.22 of the mental
     4  hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
     5  read as follows:
     6    2.  revoke  any  appointment  or  delegation made by the incapacitated
     7  person pursuant to [sections 5-1501, 5-1601 and 5-1602] title fifteen of
     8  article five of the general obligations law, sections two thousand  nine
     9  hundred  sixty-five  and  two  thousand  nine  hundred eighty-one of the
    10  public health law, or any living will.
    11    § 10. Subdivision (d) of section 81.29 of the mental hygiene  law,  as
    12  amended  by  chapter  176  of  the  laws  of 2008, is amended to read as
    13  follows:
    14    (d) If the court determines  that  the  person  is  incapacitated  and
    15  appoints  a  guardian, the court may modify, amend, or revoke any previ-
    16  ously executed appointment, power, or delegation under [section  5-1501,
    17  5-1505,  or  5-1506]  title fifteen of article five of the general obli-
    18  gations law or section two  thousand  nine  hundred  sixty-five  of  the
    19  public  health  law,  or section two thousand nine hundred eighty-one of
    20  the public health law notwithstanding section two thousand nine  hundred
    21  ninety-two  of  the  public  health law, or any contract, conveyance, or
    22  disposition during lifetime or to take effect upon death,  made  by  the
    23  incapacitated  person  prior  to  the appointment of the guardian if the
    24  court finds that the previously executed appointment, power, delegation,
    25  contract, conveyance, or disposition during lifetime or to  take  effect
    26  upon  death, was made while the person was incapacitated or if the court
    27  determines that there has been a breach of fiduciary duty by the  previ-
    28  ously  appointed  agent. In such event, the court shall require that the
    29  agent account to the guardian. The court shall not, however,  invalidate
    30  or  revoke  a  will  or  a codicil of an incapacitated person during the
    31  lifetime of such person.
    32    § 11. This act shall take effect on  the  one  hundred  eightieth  day
    33  after  it shall have become a law, provided that, effective immediately,
    34  any rules and regulations necessary to implement the provisions of  this
    35  act on its effective date are authorized and directed to be completed on
    36  or before such date.