Relates to the appointment of guardians

This measure would amend provisions of the Correction Law and the Mental Hygiene Law (MHL) to give judges presiding in MHL article 81 proceedings greater information bearing on the fitness of guardians and potential guardians, consistent with information provided judges in custody and visitation proceedings.

The Legislature's recent amendment to Domestic Relations Law section 240 authorized judges in custody and visitation matters to obtain information from the sex offender registry, the registry of orders of protection, indicated reports from the statewide central register of child abuse and maltreatment, and related warrants issued under Family Court Act article 10. The purpose of this amendment was to help judges ensure that these sensitive decisions are well informed by government information about the fitness of parties to care for children. If a party has a history of domestic abuse, sex abuse, violating orders of protection or a criminal record, this information must be known to the judge making decisions about the custody or visitation of vulnerable children.

Likewise, when surrogates appoint guardians for minors, persons with developmental disabilities and mentally disabled under Surrogate's Court Procedure Act articles 17 or 17A, current law gives surrogates corresponding rights to obtain and consider criminal records checks and searches of the child abuse register (including indicated reports) to confirm that prospective guardians subject to appointment are fit for their duties (see SCPA §§ 1704, 1706(a), 1707).

By stark contrast, current law denies this vital data to judges presiding in MHL article 81 proceedings to authorize or revoke a guardianship for an incapacitated person (i.e., someone unable to provide for personal needs or manage his or her property or legal affairs). Typically incapacitated persons are elderly or suffer a substantial medical condition, thus likely to be particularly vulnerable to manipulation and abuse. To a guardian for an elderly person, article 81 powers can convey total control over an incapacitated person's finances and medical care, including the power to place such person in a nursing home.

Given the sensitivity of guardianship appointments and the substantial powers that such appointments convey to guardians over incapacitated persons, there is every reason to provide to judges making article 81 appointments the same data regarding the criminal, sex abuse, child abuse and domestic violence history of prospective guardians, as if

they were obtaining custody rights over a child. As a matter of practicality, public policy and public safety, there is no meaningful distinction between the two for this purpose. This result is especially necessary given that current law bars persons with felony convictions from serving as fiduciaries (see SCPA § 707; Rules of the Chief Judge (22 NYCRR) § 36.2(c)(7)), but MHL article 81 does not now give judges the information they need to enforce this law. As a result, judges unknowingly may appoint as guardian someone with a felony record.

To achieve this necessary objective and protect incapacitated persons from potentially unfit guardians, section one of this measure would amend Correction Law section 168-b(2)(b)(iii) to memorialize that searches of the sex offender registry would be authorized in proceedings pursuant to MHL section 81.19, as amended by section 3 of this act.

Section two would add a new subdivision (g) to MHL section 81.18 to authorize courts making guardianship appointments or considering revocations of guardianship appointments to consider, for the guardian, proposed guardian and, if the incapacitated person resides with or will reside with such guardian or proposed guardian, any person eighteen years of age or older residing in such guardian or proposed guardian's household, the following information: (1) a criminal history record check, with corresponding judicial powers to obtain and submit fingerprints to facilitate the search; (2) reports from the sex offender registry; (3) indicated reports from the statewide central register of child abuse and maltreatment; (4) reports from the statewide computerized registry of orders of protection; and (5) related decisions in court proceedings initiated pursuant to Family Court Act article 10 and related warrants issued under such Act.

Section two of the measure also would clarify that, upon consideration of all factors bearing on the best interest of the incapacitated person including all relevant factors in section seven hundred and fifty-three of the correction law, concerning a previous criminal conviction, a court may appoint, refuse to appoint or revoke an appointment of any person as guardian pursuant to MHL article 81.

In addition, section two of the measure would require the court to provide to the guardian or proposed guardian who is the subject of the criminal history record check a copy of his/her criminal history record, along with information about his/her right to seek correction of any incorrect information in such record.

This act shall take effect on the one hundred eightieth day after it shall have become a law.

This measure would have no fiscal impact on the State or any municipality.

2012 LEGISLATIVE HISTORY: Senate 7587-A (Sen. McDonald) (recom to Rules) Assembly 10608 (M. of A. Weinstein (ref to Judiciary)