Relates to guardianship and health care decisions of persons with developmental disabilities; and to repeal certain provisions of such law relating thereto

This bill would: Amend Article 17-A of the Surrogate's Court Procedure Act (SCPA) to remove obsolete language, better reflect the rights of individuals with developmental disabilities and address current legal standards.

Summary of Provisions:

Section 1 of this bill would amend the SCPA § 1750 to replace outdated language and specify that guardianships entered into prior to the effective date of this bill remains in full force and effect except as amended by § 1755.

Section 2 of the bill would repeal SCPA § 1750-a.

Section 3 of the bill would amend SCPA § 1750-b to replace outdated language and create consistent internal language.

Section 4 of the bill would amend SCPA § 1751 to replace outdated language and include specific new language to include spouses, siblings or adult children in the list of those who may petition to be appointed as guardian of a person with a developmental disability.

Section 5 of the bill would add a new section 1751-a to the SCPA entitled, Petition for appointment: where made (venue). Pursuant to this new section, proceedings under this Article shall be made in the county in which the person with a developmental disability resides, or is physically present, when the proceeding is commenced.

Section 6 of the bill would amend the SCPA § 1752 to replace outdated language and amend the necessary contents of a petition for appointment as a guardian of a person with a developmental disability. It would also enumerate the specific domains for which a person with a developmental disability may need a guardian.

Section 7 of the bill would amend the SCPA § 1753 to change who would be given notice of the filing of a petition for guardianship and how they would be given notice.

Section 8 of the bill would amend the SCPA § 1754 to remove the provision requiring a hearing upon the appointment of a guardian and replace it with the requirement that an appearance must be scheduled in the matter, with MHLS being allowed access to the person's pertinent records. MHLS shall determine if the person with a developmental disability has any objection to the relief sought.

Section 9 of the bill would add a new section 1754-a to the SCPA to create a decision making standard to be used by a guardian acting on behalf of a person with a developmental disability.

Section 10 of the bill would amend the SCPA § 1755 to replace outdated language and create internal consistency in the Article.

Section 11 of the bill would amend the SCPA § 1756 to include new language with regard to the appointment of a guardian for a limited purpose such making a single decision or for a brief stated period of time.

Sections 12 -16 of the bill would amend the SCPA §§ 1757 through 1761 to replace outdated language and create internal consistency in the Article.

Section 17 of the bill would add a new § 1762 to the SCPA to create an annual reporting requirement for guardians.

Section 18 of the bill would provide for an effective date 180 days after it becomes law.

Existing Law:

Article 17-A of the Surrogate's Court Procedure Act currently uses outdated language and the offensive phrase "mentally retarded" when describing persons with developmental disabilities, has not been updated to better comply with current State and federal law and does not specifically provide for a limited guardianship.

Prior Legislative History:

This is new bill.

Statement in Support:

Article 17-A of the Surrogate's Court Procedure Act must be amended to reflect current clinical language, the rights of persons with developmental disabilities and current legal standards of due process under both the state and federal law. This proposed language will make available to persons with developmental disabilities the least restrictive form of guardianship intervention which assists them in meeting their needs, while permitting them to exercise the independence and self-determination of which they are capable.

The personal or property management needs of the person subject to the guardianship under this Article must be tailored to the needs of that person. This bill would create a process that promotes and protects the well-being of the person with developmental disabilities and encourages the development of maximum self-reliance. This bill will also assist in preserving the privacy of health information relating to persons with developmental disabilities who are subject to guardianship by the new processes created, and strengthen the burden of proof related to the need for, and scope of, guardianship in contested cases.

This bill will creates a standard for guardian decision-making that takes in account the personal wishes, preferences and desires of the person with developmental disabilities, and which affords the person with a developmental disability the greatest amount of independence,

self-determination and participation the decisions affecting their life.

A new section is added to the Surrogate's Court Procedure Act to create better accountability of guardians to the appointing court by requiring an annual report on forms to be developed by the Office of Court Administration.

Budget Implications:

Unknown at this time.

Local Impact:

This bill has no anticipated local impact.

Effective Date:

The bill would be effective on the 180th day.