Relates to guardianship succession procedures and time frames

BILL NUMBER:S6977

Title of bill

An act to amend the surrogate's court procedure act, in relation to guardianship succession procedures and time frames

Purpose

To establish a procedure to address the increasingly common problem where Article 17-A standby guardians fail to step in after the death, renunciation or incapacity of the primary guardian, leaving mentally retarded or developmentally disabled persons without a guardian to act on their behalf.

Summary of provisions

Section 1 amends the surrogate's courts procedure act (SCPA) section 1757 by adding a new subdivision.3 to allow the court to:

(1) deem the failure of a standby or alternate guardian to assume the duties of guardian, seek court confirmation or renounce the guardianship, within sixty days of written notice by personal delivery or certified mail, of the prior guardian's inability to serve and the standby or alternate guardian's duty to serve, seek court confirmation or renounce such role to constitute an implied renunciation of the guardianship;

(2) authorize, notwithstanding the time period provided for in subdivision 2 of this section, any remaining standby or alternate standby guardian to serve in such capacity provided an application for confirmation or an application for modification of the guardianship order is filed in accordance with the provisions of the SCPA.

Section 2 is the effective date.

Justification

Non-profit organizations supporting people with intellectual and other developmental disabilities report an increasingly common problem where Article 17-A standby guardians are failing to step in after the death, renunciation or incapacity of the primary guardian, leaving mentally retarded or developmentally disabled persons without a guardian to act on their behalf.

NYSARC, Inc. a non-profit organization supporting people with disabilities and their families since 1949 provides examples of the problem. NYSARC reports that it is a 17-A guardian for 365 individuals and standby guardian for 409 additional individuals statewide. NYSARC notes that 45 standby or alternate standby guardianships (more than 10% of NYSARC's existing standby guardianships) are currently stymied because a person or entity in a superior standby position to NYSARC has failed or refused to act as

required by SCPA. NYSARC states that it has no statutory authority to provide the individual the protection and advocacy authorized for primary 17-A guardians.

It is believed that standby guardians lack either (1) knowledge that the primary guardian (often an aging parent or sibling of the ward) has died or become incapable of serving as primary guardian; (2) understanding that they should act; and/or (3) understanding of how to act. In 2009 SCPA was amended to extend the time for a standby guardian to seek confirmation of guardianship from 90 days to 180 days following "assumption" of duties. However, it remains all-too-common that alternate standby guardians do not assume their duties for far longer than 180 days.

This legislation would permit standby guardians to promptly notify preceding standby guardians of their duty to timely act and then to seek court intervention if necessary to ensure that the individual with a disability has a timely court-appointed guardian.

LEGISLATIVE HISTORY New bill

Fiscal implications

None.

Effective date

Immediately.