Requires the guardian of a deceased incapacitated person to notify the local department of social services within 20 days of such death

BILL NUMBER:A8771

Title of bill

An act to amend the mental hygiene law, in relation to notifying the local department of social services upon the death of an incapacitated person

Summary of provisions

Section one of the bill would amend Mental Hygiene Law §81.44 to require that, upon an incapacitated person's death, the guardian of such person serves a copy of the statement of death upon the local department of social services. Section 81.44 already requires service of a copy of the statement of death upon the court examiner, the personal representative of the decedent's estate and upon the public administrator of the chief fiscal officer of the county in which the guardian was appointed.

Section two of the bill would make the bill take effect immediately.

Reasons for support

Presently, there is no systematic way for the City to be promptly notified upon the death of an individual who, due to incapacitation, has been assigned a guardian. This notification is critically important when such individual has outstanding Medicaid liens. The City's Human Resources Administration (HRA) finds out about the death of an incapacitated person only if a guardian chooses to notify ERA or through checks on the Welfare Maintenance System and Nexus death records. This piecemeal and time-consuming approach helps to identify many of the cases with outstanding Medicaid liens and claims but does not identify all of them.

Although it is common practice for the judge in the guardianship proceeding to require the guardian to notify the Local Social Services District (LSSD) upon the death of an incapacitated person who was receiving medical assistance, it is not mandated. The judge will only do so when it is known that the incapacitated person had been receiving Medicaid. Because the guardian has the responsibility to administer the incapacitated person's affairs and is more fully aware of the person's history and circumstances he or she should be obligated to notify the LSSD. Other participants, such as the court examiner, the personal representative or public administrator, are statutorily required to be notified, yet the agency that provided the Medicaid services, at public expense, is not currently required to be notified.

In order to ease the current burden on HRA staff as well as to allow a better and more efficient utilization of its staff's time, the Mental Hygiene Law should be amended to require the guardian to notify the LSSD of the death of an incapacitated person. This can be accomplished by specifying that upon the incapacitated person's death, the guardian should notify the LSSD as well as the court examiner, personal representative or public administrator.