A07899 Summary:

BILL NOA07899A
 
SAME ASSAME AS S06217-A
 
SPONSORRozic
 
COSPNSRSolages, Gottfried, Mosley, Rodriguez, Sepulveda, Taylor, Abinanti, Wallace, Titone
 
MLTSPNSR
 
Amd 1726, SCPA
 
Relates to the appointment of a standby guardian due to administrative separation; defines administrative separation and the process for such appointment.
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A07899 Actions:

BILL NOA07899A
 
05/18/2017referred to judiciary
06/12/2017amend and recommit to judiciary
06/12/2017print number 7899a
06/19/2017reported referred to codes
06/20/2017reported referred to rules
06/20/2017reported
06/20/2017rules report cal.613
06/20/2017ordered to third reading rules cal.613
06/20/2017passed assembly
06/20/2017delivered to senate
06/20/2017REFERRED TO RULES
01/03/2018DIED IN SENATE
01/03/2018RETURNED TO ASSEMBLY
01/03/2018ordered to third reading cal.559
03/26/2018passed assembly
03/26/2018delivered to senate
03/26/2018REFERRED TO JUDICIARY
06/20/2018SUBSTITUTED FOR S6217A
06/20/20183RD READING CAL.595
06/20/2018PASSED SENATE
06/20/2018RETURNED TO ASSEMBLY
06/25/2018delivered to governor
06/27/2018signed chap.79
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A07899 Committee Votes:

JUDICIARY Chair:Weinstein DATE:06/19/2017AYE/NAY:19/0 Action: Favorable refer to committee Codes
WeinsteinAyePalumboAye
DinowitzAyeMontesanoAye
TitusExcusedBarclayAye
LavineAyeGoodellAye
ZebrowskiAyeGrafAye
WeprinAyeLupinacciAye
BraunsteinAye
SimotasExcused
QuartAye
TitoneAye
BuchwaldAye
SteckAye
SeawrightAye
SimonAye
JoynerAye

RULES Chair:Heastie DATE:06/20/2017AYE/NAY:31/0 Action: Favorable
HeastieAyeKolbAye
GottfriedAyeOaksAye
LentolAyeButlerAye
FarrellAyeCrouchAye
GanttAyeFinchAye
NolanAyeBarclayAye
WeinsteinAyeRaiaAye
HooperAyeHawleyAye
OrtizAye
PretlowAye
CookAye
GlickAye
MorelleAye
AubryAye
EnglebrightAye
DinowitzAye
ColtonAye
MagnarelliAye
PerryAye
GalefAye
PaulinAye
TitusAye
Peoples-StokesAye

CODES Chair:Lentol DATE:06/20/2017AYE/NAY:21/0 Action: Favorable refer to committee Rules
LentolAyeGrafAye
SchimmingerAbsentGiglioAye
WeinsteinAyeMcKevittAye
PretlowAyeMontesanoAye
CookAyeRaAye
CymbrowitzAyeMorinelloAye
TitusAye
O'DonnellAye
LavineAye
PerryAye
ZebrowskiAye
AbinantiAye
WeprinAye
MosleyAye
HevesiAye
FahyAye

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A07899 Floor Votes:

DATE:06/20/2017Assembly Vote  YEA/NAY: 141/0
AbbateYCrouchYGoodellYLiftonYO'DonnellERSepulvedaY
AbinantiYCurranYGottfriedYLopezYOrtizYSimanowitzY
ArroyoERCusickYGrafYLupardoYOtisYSimonY
AubryYCymbrowitzYGuntherYLupinacciYPalmesanoYSimotasY
BarclayYDavilaERHarrisYMageeYPalumboYSkartadosY
BarnwellYDe La RosaYHawleyYMagnarelliYPaulinYSkoufisY
BarrettYDenDekkerYHevesiYMalliotakisYPellegrinoYSolagesY
BarronYDickensERHikindERMayerYPeoples-StokesYStecY
BenedettoYDilanYHooperYMcDonaldYPerryYSteckY
BichotteYDinowitzYHunterYMcDonoughYPheffer AmatoYStirpeY
BlakeYDiPietroYHyndmanYMcKevittYPichardoYThieleY
BlankenbushYD'UrsoYJaffeeYMcLaughlinYPretlowYTitoneY
BrabenecYEnglebrightYJean-PierreYMill B YQuartERTitusY
BraunsteinYErrigoYJenneYMill MGYRaYVanelY
BrindisiYFahyYJohnsYMill MLYRaiaYWalkerY
BronsonYFarrellYJonesYMontesanoYRamosYWallaceY
BuchwaldYFinchYJoynerYMorelleYRichardsonYWalshY
ButlerYFitzpatrickYKavanaghYMorinelloYRiveraYWalterY
ByrneYFriendYKearnsYMosleyYRodriguezERWeinsteinY
CahillYGalefYKimYMoyaYRosenthalYWeprinY
CarrollYGanttERKolbYMurrayYRozicYWilliamsY
CastorinaYGarbarinoYLalorERNiouYRyanYWoernerY
ColtonYGiglioYLavineYNolanYSantabarbaraYWrightY
CookYGjonajYLawrenceYNorrisYSchimmingerYZebrowskiY
CrespoYGlickYLentolYOaksYSeawrightYMr SpkrY

DATE:03/26/2018Assembly Vote  YEA/NAY: 135/0
AbbateYCrouchYGuntherYMayerYPichardoYTaylorY
AbinantiYCurranYHarrisYMcDonaldYPretlowYThieleY
ArroyoYCusickYHawleyYMcDonoughERQuartYTitoneY
AubryYCymbrowitzYHevesiYMill B YRaYTitusY
BarclayYDavilaYHikindYMill MGYRaiaYVanelY
BarnwellYDe La RosaYHooperYMill MLYRamosYWalkerY
BarrettYDenDekkerERHunterYMontesanoYRichardsonYWallaceY
BarronYDickensYHyndmanYMorelleYRiveraYWalshY
BenedettoYDilanYJaffeeYMorinelloYRodriguezYWalterY
BichotteYDinowitzYJean-PierreYMosleyYRose D YWeinsteinY
BlakeYDiPietroYJenneYMurrayYRose L YWeprinY
BlankenbushYD'UrsoYJohnsYNiouYRozicYWilliamsY
BrabenecYEnglebrightYJonesYNolanYRyanYWoernerY
BraunsteinYErrigoYJoynerYNorrisYSantabarbaraYWrightY
BrindisiYFahyYKimEROaksYSchimmingerYZebrowskiY
BronsonYFinchYKolbYO'DonnellYSeawrightYMr SpkrY
BuchwaldYFitzpatrickYLalorYOrtizYSepulvedaY
ButlerYFriendYLavineYOtisYSimonY
ByrneYGalefYLawrenceYPalmesanoYSimotasER
CahillYGanttERLentolYPalumboYSkartadosER
CarrollYGarbarinoYLiftonYPaulinYSkoufisY
CastorinaYGiglioYLupardoYPellegrinoYSolagesY
ColtonYGlickYMageeYPeoples-StokesYStecY
CookYGoodellYMagnarelliYPerryYSteckY
CrespoYGottfriedYMalliotakisYPheffer AmatoYStirpeY

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A07899 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7899--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 18, 2017
                                       ___________
 
        Introduced  by M. of A. ROZIC -- read once and referred to the Committee
          on Judiciary -- committee discharged, bill amended, ordered  reprinted
          as amended and recommitted to said committee
 
        AN  ACT to amend the surrogate's court procedure act, in relation to the
          appointment of a standby guardian due to administrative separation

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section  1726  of the surrogate's court procedure act, as
     2  amended by chapter 632 of the laws of 2003, paragraph (c) of subdivision
     3  3 and paragraph (e) of subdivision 4 as amended by  chapter  71  of  the
     4  laws of 2007, is amended to read as follows:
     5  § 1726. Standby guardians
     6    1. For the purpose of this section:
     7    (a)  "Standby guardian" means (i) a person judicially appointed pursu-
     8  ant to subdivision three of this section  as  standby  guardian  of  the
     9  person  and/or  property  of an infant whose authority becomes effective
    10  upon the incapacity [or], administrative separation,  or  death  of  the
    11  infant's parent, legal guardian, legal custodian or primary caretaker or
    12  upon  the  consent  of  the  parent,  legal guardian, legal custodian or
    13  primary caretaker; and (ii) a person designated pursuant to  subdivision
    14  four  of this section as standby guardian whose authority becomes effec-
    15  tive upon the death [or], administrative separation,  or  incapacity  of
    16  the infant's parent, legal guardian, legal custodian or primary caretak-
    17  er  or  upon the debilitation and consent of the parent, legal guardian,
    18  legal custodian or primary caretaker.
    19    (b)  "Legal  guardian"  means  the  court-appointed  guardian  of  the
    20  infant's person and/or property.
    21    (c)  "Attending physician" means the physician who has primary respon-
    22  sibility for the treatment and care of the infant's parent, legal guard-
    23  ian, legal custodian or primary caretaker. Where more than one physician
    24  shares such responsibility, or  where  a  physician  is  acting  on  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11694-06-7

        A. 7899--A                          2
 
     1  attending  physician's behalf, any such physician may act as the attend-
     2  ing physician pursuant to this section.  Where  no  physician  has  such
     3  responsibility,  any  physician who is familiar with the parent's, legal
     4  guardian's,  legal  custodian's or primary caretaker's medical condition
     5  may act as the attending physician pursuant to this section.
     6    (d) "Debilitation" means a chronic and substantial inability  to  care
     7  for  one's  dependent infant, as a result of (i) a progressively chronic
     8  or  irreversibly  fatal  illness,  or  (ii)  a  physically  debilitating
     9  illness,  disease  or  injury. "Debilitated" means the state of having a
    10  debilitation.
    11    (e) "Incapacity" means a  chronic  and  substantial  inability,  as  a
    12  result  of  mental impairment, to understand the nature and consequences
    13  of decisions concerning the care of one's dependent infant, and a conse-
    14  quent inability to care for such infant. "Incapacitated" means the state
    15  of having an incapacity.
    16    (f) "Administrative separation" means a parent, legal guardian,  legal
    17  custodian  or primary caretaker's (i) in connection with a federal immi-
    18  gration matter:  arrest, detention, incarceration, removal and/or depor-
    19  tation; or (ii) receipt of official communication by federal, state,  or
    20  local  authorities regarding immigration enforcement which gives reason-
    21  able notice that care and supervision of the child by the parent,  legal
    22  guardian,  legal  custodian, or primary caretaker will be interrupted or
    23  cannot be provided.
    24    2. The provisions of this article relating to guardians shall apply to
    25  standby guardians, except insofar as this section provides otherwise.
    26    3. (a) A petition for the judicial appointment of a  standby  guardian
    27  of  the person and/or property of an infant pursuant to this subdivision
    28  may be made only by a parent, a legal guardian of the infant or a  legal
    29  custodian  of  the  infant;  or  where the infant is not residing with a
    30  parent, legal guardian or legal custodian and, to  the  satisfaction  of
    31  the  court,  such  parent,  legal  guardian or legal custodian cannot be
    32  located with due diligence, the primary caretaker  of  such  infant  may
    33  petition  for a judicial appointment of such standby guardian.  Applica-
    34  tion for standing to petition as  a  primary  caretaker  shall  be  upon
    35  motion to the court upon notice to such parties as the court may direct.
    36    (b)  A  petition for the judicial appointment of a standby guardian of
    37  an infant shall, in addition to  meeting  the  requirements  of  section
    38  seventeen hundred four of this article:
    39    (i)  State  whether the authority of the standby guardian is to become
    40  effective upon the petitioner's incapacity, upon the petitioner's death,
    41  upon the petitioner's consent, or upon the  petitioner's  administrative
    42  separation  accompanied  by  his or her consent required pursuant to the
    43  provisions of subdivision seven  of  this  section,  or  upon  whichever
    44  occurs first;
    45    (ii) State that the petitioner suffers from (A) a progressively chron-
    46  ic  illness  [or];  (B)  an irreversibly fatal illness and the basis for
    47  such statement, such as the date and  source  of  a  medical  diagnosis,
    48  without  requiring the identification of the illness in question, or (C)
    49  state that the petitioner may become  subject  to  administrative  sepa-
    50  ration and the basis for such statement.
    51    (c) Upon a petition for the judicial appointment of a standby guardian
    52  of  an  infant  pursuant to paragraph (a) of this subdivision or for the
    53  judicial appointment of a guardian pursuant to paragraph (d) of subdivi-
    54  sion four of this section, the court shall conduct a hearing. The  court
    55  may  in  its discretion dispense with a hearing for the appointment of a
    56  standby guardian, and may in its discretion appoint a guardian ad  litem

        A. 7899--A                          3
 
     1  or  an attorney for the infant to recommend whether the appointment of a
     2  standby guardian as proposed in the application is in the best  interest
     3  of the infant.
     4    (d) (i) If the court finds that the petitioner suffers from a progres-
     5  sively  chronic  illness or an irreversibly fatal illness, or finds that
     6  the petitioner may become subject to administrative separation, and that
     7  the interests of the infant will be promoted by  the  appointment  of  a
     8  standby  guardian  of  the  person and/or property it must make a decree
     9  accordingly.
    10    (ii) Such decree shall specify whether the authority  of  the  standby
    11  guardian  is  effective  upon  the  receipt  of  a  determination of the
    12  petitioner's incapacity, upon the receipt  of  the  certificate  of  the
    13  petitioner's  death,  or other such evidence of death that may be satis-
    14  factory to the court, or  upon  the  receipt  of  documentation  of  the
    15  petitioner's  administrative separation, and receipt of the petitioner's
    16  consent to the commencement of the standby guardian's authority required
    17  pursuant to the provisions of subdivision seven of this section, or upon
    18  whichever occurs first[, and]. The decree shall also  provide  that  the
    19  authority  of  the  standby  guardian  may earlier become effective upon
    20  written consent of the parent pursuant to subparagraph [(iii)]  (iv)  of
    21  paragraph (e) of this subdivision.
    22    (iii) If at any time prior to the commencement of the authority of the
    23  standby  guardian  the court finds that the requirements of subparagraph
    24  (i) of this paragraph are no  longer  satisfied,  it  may  rescind  such
    25  decree.
    26    (e)  (i)  Where  the decree provides that the authority of the standby
    27  guardian  is  effective  upon  receipt  of  a   determination   of   the
    28  petitioner's incapacity, the standby guardian's authority shall commence
    29  upon  the  standby  guardian's  receipt  of a copy of a determination of
    30  incapacity made pursuant to subdivision six of this section. The standby
    31  guardian shall file a copy of the determination of incapacity  with  the
    32  court  that  issued the decree within ninety days of the date of receipt
    33  of such  determination  or  the  standby  guardian's  authority  may  be
    34  rescinded by the court.
    35    (ii) Where the decree provides that the authority of the standby guar-
    36  dian  is  effective  upon  receipt  of a certificate of the petitioner's
    37  death, or other such evidence of death that may be satisfactory  to  the
    38  court,  the standby guardian's authority shall commence upon the standby
    39  guardian's receipt of a certificate of death, or other such evidence  of
    40  death as may be specified in the decree. The standby guardian shall file
    41  the  certificate  of  death,  or  other such evidence of death, with the
    42  court that issued the decree within ninety  days  of  the  date  of  the
    43  petitioner's  death or the standby guardian's authority may be rescinded
    44  by the court.
    45    (iii) Where the decree provides that  the  authority  of  the  standby
    46  guardian  is effective upon the standby guardian's receipt of documenta-
    47  tion of the petitioner's administrative separation, the standby  guardi-
    48  an's  authority  shall  commence  upon the standby guardian's receipt of
    49  documentation of the petitioner's administrative separation pursuant  to
    50  subdivision  seven  of  this  section,  and  receipt of the petitioner's
    51  consent to the commencement  of  the  standby  guardian's  authority  as
    52  required  pursuant  to  the  provisions  of  subdivision  seven  of this
    53  section.  The standby guardian shall file the documentation of  adminis-
    54  trative  separation  with  the court that issued the decree within sixty
    55  days of the date of the standby guardian's receipt of  documentation  of

        A. 7899--A                          4
 
     1  the  petitioner's  administrative  separation  or the standby guardian's
     2  authority may be rescinded by the court.
     3    [(iii)]  (iv) Notwithstanding subparagraphs (i) and (ii) of this para-
     4  graph, a standby guardian's authority shall commence  upon  the  standby
     5  guardian's receipt of the petitioner's written consent to such commence-
     6  ment, signed by the petitioner in the presence of two witnesses at least
     7  eighteen  years  of age, other than the standby guardian, who shall also
     8  sign the writing. Another person may sign the  written  consent  on  the
     9  petitioner's  behalf and at the petitioner's direction if the petitioner
    10  is physically unable to do so, provided such consent is  signed  in  the
    11  presence of the petitioner and the witnesses. The standby guardian shall
    12  file  the  written  consent with the court that issued the decree within
    13  ninety days of the date of receipt of such written consent or the stand-
    14  by guardian's authority may be rescinded by the court.
    15    (f) The petitioner may revoke a  standby  guardianship  created  under
    16  this  subdivision  by executing a written revocation, filing it with the
    17  court that issued the decree, and promptly notifying the standby guardi-
    18  an of the revocation.
    19    (g) A person judicially appointed standby guardian  pursuant  to  this
    20  subdivision  may  at  any  time  before  the  commencement of his or her
    21  authority renounce the appointment by executing a  written  renunciation
    22  and  filing it with the court that issued the decree, and promptly noti-
    23  fying the petitioner of the revocation.
    24    4. (a) A parent, a legal guardian, a legal custodian, or primary care-
    25  taker under the circumstances described in paragraph (a) of  subdivision
    26  three  of  this section or under circumstances described in subparagraph
    27  (i) of paragraph (b) of this subdivision may designate a standby guardi-
    28  an by means of a written designation, signed by the parent, legal guard-
    29  ian, legal custodian  or  primary  caretaker  in  the  presence  of  two
    30  witnesses at least eighteen years of age, other than the standby guardi-
    31  an, who shall also sign the writing. Another person may sign the written
    32  designation  on  the  parent's,  legal  guardian's, legal custodian's or
    33  primary caretaker's behalf and at the parent's, legal guardian's,  legal
    34  custodian's or primary caretaker's direction if the parent, legal guard-
    35  ian, legal custodian or primary caretaker is physically unable to do so,
    36  provided  the designation is signed in the presence of the parent, legal
    37  guardian, legal custodian or primary caretaker and the witnesses.
    38    (b) (i) A designation of a standby guardian shall identify the parent,
    39  legal guardian, legal custodian or primary caretaker, the infant and the
    40  person designated to be the standby guardian, and  shall  indicate  that
    41  the parent, legal guardian, legal custodian or primary caretaker intends
    42  for  the  standby  guardian to become the infant's guardian in the event
    43  the parent, legal guardian, legal custodian or primary caretaker either:
    44  (A) becomes incapacitated; (B) becomes debilitated and consents  to  the
    45  commencement  of  the  standby  guardian's  authority;  [or] (C) becomes
    46  subject to an administrative separation and consents to the commencement
    47  of  the  standby  guardian's  authority  as  required  pursuant  to  the
    48  provisions  of  subdivision  seven of this section; or (D) dies prior to
    49  the commencement of a judicial proceeding to appoint a guardian  of  the
    50  person and/or property of an infant.
    51    (ii)  A  parent,  legal guardian, legal custodian or primary caretaker
    52  may designate an alternate standby guardian in the same writing, and  by
    53  the same manner, as the designation of a standby guardian.
    54    (iii) A designation may, but need not, be in the following form:
    55                       Designation of Standby Guardian

        A. 7899--A                          5
 
     1      (NOTE:  As  used  in  this form, the term "parent" shall include a
     2    parent, a court-appointed guardian of an infant's person or  proper-
     3    ty,  a  legal  custodian,  or  a  primary  caretaker,  and  the term
     4    "child(ren)" shall include the dependant infant of a parent,  court-
     5    appointed guardian, legal custodian or primary caretaker
     6          I (name of parent) hereby designate (name, home address and
     7       telephone  number  of standby guardian) as standby guardian of
     8       the person and property of my child(ren) (name of child(ren)).
     9          (You may, if you wish, provide that the standby  guardian's
    10       authority  shall  extend  only  to  the person, or only to the
    11       property, of your child, by crossing out "person" or  "proper-
    12       ty", whichever is inapplicable, above.)
    13          The  appointment  of ___________ as the standby guardian of
    14       the person and property of my child(ren) would be in the  best
    15       interests of my child(ren) because:  (Insert justification for
    16       appointment of this person as the standby guardian) __________
    17       ______________________________________________________________
    18       ____________________________________________________________ .
    19          The  standby guardian's authority shall take effect: (1) if
    20       my doctor concludes in writing that I  am  mentally  incapaci-
    21       tated,  and  thus  unable to care for my child(ren); (2) if my
    22       doctor concludes in writing that I am physically  debilitated,
    23       and  thus  unable  to  care for my child(ren) and I consent in
    24       writing, before  two  witnesses,  to  the  standby  guardian's
    25       authority  taking effect; (3) If I become subject to an admin-
    26       istrative separation such that care  and  supervision  of  the
    27       child  will  be  interrupted or cannot be provided; or [(iii)]
    28       (4) upon my death.
    29          In the event the person I  designate  above  is  unable  or
    30       unwilling  to  act  as  guardian  for  my child(ren), I hereby
    31       designate (name, home address and telephone number  of  alter-
    32       nate standby guardian), as standby guardian of my child(ren).
    33          I also understand that my standby guardian's authority will
    34       cease  sixty  days  after commencing unless by such date he or
    35       she petitions the court for appointment as guardian.
    36          I understand that I  retain  full  parental,  guardianship,
    37       custodial  or  caretaker rights even after the commencement of
    38       the standby guardian's authority, and may revoke  the  standby
    39       guardianship at any time.
    40          Signature: ________________________________________________
    41          Address: __________________________________________________
    42          Date: _____________________________________________________
    43          I  declare  that the person whose name appears above signed
    44       this document in my presence, or was physically unable to sign
    45       and asked another to sign this document,  who  did  so  in  my
    46       presence.  I further declare that I am at least eighteen years
    47       old and am not the person designated as standby guardian.
    48          Witness' Signature: _______________________________________
    49          Address: __________________________________________________
    50          Date: _____________________________________________________
    51          Witness' Signature: _______________________________________
    52          Address: __________________________________________________
    53          Date: _____________________________________________________
    54    (iv) Notwithstanding paragraphs (a) and (b)  of  this  subdivision,  a
    55  designation of standby guardian shall be effective as if made in accord-
    56  ance  with  the requirements of this subdivision if it was validly made:

        A. 7899--A                          6
 
     1  (a) where the parent, legal guardian, legal custodian or  primary  care-
     2  taker was domiciled at the time it was executed; (b) in the jurisdiction
     3  where  it  was  executed  or (c) where the parent, legal guardian, legal
     4  custodian  or primary caretaker is domiciled at the time the designation
     5  becomes effective.
     6    (c) The authority of the standby guardian under  a  designation  shall
     7  commence  upon either: (i) the standby guardian's receipt of a copy of a
     8  determination of incapacity made pursuant to  subdivision  six  of  this
     9  section; (ii) the standby guardian's receipt of (A) a copy of a determi-
    10  nation  of debilitation made pursuant to subdivision six of this section
    11  and (B) a copy of the parent's, legal guardian's, legal  custodian's  or
    12  primary  caretaker's written consent to such commencement, signed by the
    13  parent, legal guardian, legal custodian  or  primary  caretaker  in  the
    14  presence of two witnesses at least eighteen years of age, other than the
    15  standby  guardian,  who shall also sign the writing.  Another person may
    16  sign the written consent on the parent's, legal guardian's, legal custo-
    17  dian's or primary caretaker's behalf and at the parent's, legal  guardi-
    18  an's,  legal custodian's or primary caretaker's direction if the parent,
    19  legal guardian, legal  custodian  or  primary  caretaker  is  physically
    20  unable  to do so, provided such consent is signed in the presence of the
    21  parent, legal guardian, legal custodian or  primary  caretaker  and  the
    22  witnesses;  (iii)  an  administrative separation and consent as required
    23  pursuant to the provisions of  subdivision  seven  of  this  section  or
    24  [(iii)]  (iv)  the standby guardian's receipt of a certificate of death,
    25  funeral home receipt or other such document indicating that the  parent,
    26  legal  guardian,  legal  custodian  or  primary  caretaker has died. The
    27  standby guardian shall file a petition pursuant to paragraph (d) of this
    28  subdivision within sixty days of the date of its  commencement  pursuant
    29  to this paragraph or such standby guardian's authority shall cease after
    30  such date, but shall recommence upon such filing.
    31    (d) The standby guardian may file a petition for appointment as guard-
    32  ian after receipt of either: (i) a copy of a determination of incapacity
    33  made  pursuant to subdivision six of this section; or (ii) (A) a copy of
    34  a determination of debilitation made pursuant to subdivision six of this
    35  section and (B) a copy of the parent's, legal guardian's,  legal  custo-
    36  dian's or primary caretaker's written consent, pursuant to paragraph (c)
    37  of this subdivision; [or] (iii) documentation of an administrative sepa-
    38  ration and consent as required pursuant to the provisions of subdivision
    39  seven  of  this  section;  or (iv) a certificate of death, or other such
    40  evidence of death that may be satisfactory to the court.  Such  petition
    41  must,  in  addition  to  meeting  the  requirements of section seventeen
    42  hundred four of this article:
    43    (i) append the written designation of such person as standby guardian;
    44  and
    45    (ii) append a copy of: (A) the  determination  of  incapacity  of  the
    46  parent, legal guardian, legal custodian or primary caretaker; or (B) the
    47  determination  of debilitation and the parental, guardian's, custodian's
    48  or caretaker's consent; [or]  (C)  documentation  of  an  administrative
    49  separation  and consent as required pursuant to the provisions of subdi-
    50  vision seven of this section; or (D)  a  copy  of  the  parent's,  legal
    51  guardian's,  legal custodian's or primary caretaker's death certificate,
    52  or other such evidence of death that may be satisfactory to  the  court;
    53  and
    54    (iii)  if  the petition is by a person designated as alternate standby
    55  guardian, state that  the  person  designated  as  standby  guardian  is

        A. 7899--A                          7
 
     1  unwilling  or  unable to act as standby guardian, and the basis for such
     2  statement.
     3    (e) Subject to the provisions of paragraph (c) of subdivision three of
     4  this section, if the court finds that the petitioner was duly designated
     5  as standby guardian, that the parent, legal guardian, legal custodian or
     6  primary  caretaker  of the infant is (i) incapacitated, (ii) debilitated
     7  and consents, (iii) has become subject to an  administrative  separation
     8  and consents as required pursuant to the provisions of subdivision seven
     9  of  this  section, or (iv) has died, as established by a copy of a death
    10  certificate or other such evidence of death as may  be  satisfactory  to
    11  the  court,  that  the  interests  of the infant will be promoted by the
    12  appointment of a standby guardian of the  person  and/or  property,  and
    13  that,  if  the  petition  is by a person designated as alternate standby
    14  guardian, the person designated as  standby  guardian  is  unwilling  or
    15  unable  to  act  as standby guardian, it must make a decree accordingly.
    16  Prior to making its finding, the court may, in its  discretion,  appoint
    17  an  attorney  for the infant to recommend whether the appointment of the
    18  standby guardian as proposed in the petition is in the best interests of
    19  the infant.
    20    (f) The parent, legal guardian, legal custodian or  primary  caretaker
    21  may revoke a standby guardianship created under this subdivision: (i) by
    22  executing  a  subsequent  designation  of guardianship pursuant to para-
    23  graphs (a) and (b) of this  subdivision,  or  (ii)  notwithstanding  the
    24  provisions of sections seventeen hundred ten and seventeen hundred elev-
    25  en  of  this  article, in the case of a standby guardian whose authority
    26  becomes effective upon the death of the parent,  legal  guardian,  legal
    27  custodian  or  primary  caretaker  of the infant, by a subsequent desig-
    28  nation of standby guardian set forth in a  will  of  the  parent,  legal
    29  guardian,  legal  custodian  or primary caretaker, or (iii) by notifying
    30  the standby guardian verbally or in writing or by any other act evidenc-
    31  ing a specific intent to revoke the standby guardianship  prior  to  the
    32  filing  of  a  petition.  Where  the petition has already been filed, by
    33  executing a written revocation, filing it with the court where the peti-
    34  tion was filed, and promptly notifying the standby guardian of the revo-
    35  cation.
    36    5. The standby guardian may also file a petition  for  appointment  as
    37  guardian in any other manner permitted by this article or article six of
    38  the  family  court  act,  on notice to the parent, legal guardian, legal
    39  custodian or primary caretaker and may append a designation  of  standby
    40  guardian  to the petition for consideration by the court in the determi-
    41  nation of such petition.
    42    6. (a) A determination of incapacity or debilitation must: (i) be made
    43  by the attending physician to a reasonable degree of medical  certainty;
    44  (ii)  be in writing; and (iii) contain the attending physician's opinion
    45  regarding the cause and nature of the parent's, legal guardian's,  legal
    46  custodian's or primary caretaker's incapacity or debilitation as well as
    47  its  extent and probable duration. The attending physician shall provide
    48  a copy of the determination of incapacity or debilitation to the standby
    49  guardian, if the standby guardian's identity is known to the physician.
    50    (b) If requested by the standby guardian, an attending physician shall
    51  make a determination regarding the  parent's,  legal  guardian's,  legal
    52  custodian's  or  primary  caretaker's  incapacity  or  debilitation  for
    53  purposes of this section.
    54    (c) The standby guardian shall ensure that the parent, legal guardian,
    55  legal custodian or primary caretaker is informed of the commencement  of
    56  the standby guardian's authority as a result of a determination of inca-

        A. 7899--A                          8
 
     1  pacity  and  of  the  parent's,  legal  guardian's, legal custodian's or
     2  primary caretaker's  right  to  revoke  such  authority  promptly  after
     3  receipt  of the determination of incapacity, provided there is any indi-
     4  cation of the person's ability to comprehend such information.
     5    7.  Documentation of an administrative separation (a) shall consist of
     6  an administrative order, judicial order, affidavit or affirmation  indi-
     7  cating  the  parent, legal guardian, legal custodian or primary caretak-
     8  er's administrative separation as defined in this section and (b)  shall
     9  be  accompanied  by written consent of the parent, legal guardian, legal
    10  custodian, or primary caretaker, signed by the parent,  legal  guardian,
    11  legal  custodian,  or primary caretaker in the presence of two witnesses
    12  at least eighteen years of age, other than  the  standby  guardian,  who
    13  shall  also  sign the writing.  Consent contained in the formal petition
    14  submitted pursuant to subdivision three of this section or  the  written
    15  designation  made  pursuant to subdivision four of this section shall be
    16  sufficient to satisfy the requirement for  consent  set  forth  in  this
    17  subdivision.
    18    [7.]  8. The commencement of the standby guardian's authority pursuant
    19  to a determination of incapacity, determination of debilitation,  admin-
    20  istrative  separation,  or consent shall not, itself, divest the parent,
    21  legal guardian, legal custodian or primary caretaker  of  any  parental,
    22  guardianship,  custodial  or caretaker rights, but shall confer upon the
    23  standby guardian concurrent authority with respect to the infant.
    24    [8.] 9. (a) The clerk of any county upon being paid the  fees  allowed
    25  therefor  by  law  shall receive for filing any instrument appointing or
    26  designating a standby guardian pursuant to this section made by a  domi-
    27  ciliary  of the county, and shall give a written receipt therefor to the
    28  person delivering it. The filing of an  appointment  or  designation  of
    29  standby  guardian shall be for the sole purpose of safekeeping and shall
    30  not affect the validity of the appointment or designation.
    31    (b) The appointment or designation shall be delivered only to: (i) the
    32  parent,  legal  guardian,  legal  custodian  or  primary  caretaker  who
    33  appointed  or designated the standby guardian; (ii) the standby guardian
    34  or alternate standby guardian; (iii) the person  designated  as  standby
    35  guardian  or  alternate  standby  guardian;  or  (iv)  any  other person
    36  directed by the court.
    37    § 2. This act shall take effect immediately.
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