What's happening
This bill updates laws on guardianship and health care decisions for people with developmental disabilities or traumatic brain injury, expanding protections, procedures, and decision-making standards.
Why it matters
Expands and modernizes who can receive guardianship protections. The bill updates language to include not only people with developmental disabilities but also those with traumatic brain injuries, removing outdated terminology and broadening eligibility for guardianship and related health care protections.
Strengthens procedural safeguards and due process. It requires courts to tailor guardianship powers to the individual’s actual needs, mandates clear and convincing evidence for orders, and enhances the right to be present at hearings, obtain legal representation, and have objections heard—raising the bar for when and how guardianships are imposed or modified.
Promotes person-centered decision-making and alternatives. Guardians must consider the wishes and values of the person, use the least restrictive means necessary, and document alternatives to guardianship. This is meant to ensure that individuals maintain as much autonomy as possible and that guardianship is a last resort.
Increases oversight and transparency. The legislation introduces annual accounting requirements for guardians managing property, clearer standards for notification and service of process, and more robust reporting and review mechanisms to protect against misuse or neglect within guardianship arrangements.
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Who cares
People with developmental disabilities or traumatic brain injuries
The bill would require guardians’ powers to be tailored to individual needs and give respondents protections including counsel and a right to demand a jury trial when guardianship relief is contested.
Parents, family guardians and standby guardians
The bill would require petitions to explain alternatives to guardianship, allow guardianships for a single decision or brief transition, and spare petitioners from resubmitting proof of need in specified proceedings involving existing guardianships.
Mental Hygiene Legal Service and Surrogate’s Courts
The bill would require notice to the service in every guardianship petition and establish new review, representation and hearing procedures.
Hospitals and health care practitioners
The bill would extend the health care decision-making framework, including safeguards for withholding or withdrawing life-sustaining treatment, to people with developmental disabilities and traumatic brain injuries.
Headline styles
Reform Guardianship for Disabilities
Plain English, a few words. Used as the page title.
Sponsors
4 Co-sponsors
1 Multi-sponsor
History
- Referred to judiciary
- Referred to judiciary
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Update Guardianship for Disabilities
In Senate Committee · Judiciary · Sponsor Kemp Hannon
Full text
21 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
5840
2017-2018 Regular Sessions
IN ASSEMBLY
February 16, 2017
Introduced by M. of A. LAVINE -- read once and referred to the Committee on Judiciary
AN ACT to amend the surrogate's court procedure act and the judiciary law, in relation to guardianship and health care decisions of persons with developmental disabilities; and to repeal certain provisions of the surrogate's court procedure act relating thereto
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 1750 of the surrogate's court procedure act, as amended by chapter 198 of the laws of 2016, is amended to read as follows: § 1750. Guardianship of persons [who are intellectually disabled] with
developmental disabilities
1. When it shall appear to the satisfaction of the court that a person is a person [who is intellectually disabled] with a developmental disability within the meaning of subdivision twenty-two of section 1.03 of the mental hygiene law or a person with traumatic brain injury within the meaning of subdivision one of section two thousand seven hundred forty-one of the public health law, except that no age of origination shall apply for purposes of this article to a person with traumatic head injury, and that such person, as a result of such developmental disability or traumatic brain injury, exhibits significant impairment of general or specific areas of intellectual functioning and/or adaptive behaviors in specified domains as enumerated in subdivision eight of section seventeen hundred fifty-two of this article, the court is authorized to appoint a guardian of the person or of the property or of both if such appointment of a guardian or guardians is in the best interest of the person [who is intellectually disabled]. Such appointment shall be made pursuant to the provisions of this article[, provided however that the provisions of section seventeen hundred fifty-a of this article shall
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08755-02-7
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not apply to the appointment of a guardian or guardians of a person who is intellectually disabled.
1. For the purposes of this article, a person who is intellectually disabled is a person who has been certified by one licensed physician and one licensed psychologist, or by two licensed physicians at least one of whom is familiar with or has professional knowledge in the care and treatment of persons with an intellectual disability, having qualifications to make such certification, as being incapable to manage him or herself and/or his or her affairs by reason of intellectual disability and that such condition is permanent in nature or likely to continue indefinitely].
2. Every guardianship entered into pursuant to this article prior to the effective date of this subdivision, including orders and decrees pursuant to section seventeen hundred fifty-seven of this article, shall remain in full force and effect thereafter, except as amended pursuant to section seventeen hundred fifty-five of this article or as ordered by the court; and any such guardianship shall be administered consistent with the substantive and procedural requirements set forth in this article, except that the provisions of section seventeen hundred six-two of this article shall only apply to guardianships entered into on or after the effective date of this subdivision. Further, guardianships entered into prior to the effective date of the chapter of the laws of two thousand seventeen which amended this subdivision, upon petition for amendment pursuant to section seventeen hundred fifty-five and section seventeen hundred fifty-seven of this article, shall not be required to resubmit proof of the continued need for guardianship.
3. Every [such certification pursuant to subdivision one of this section,] order and decree made on or after the effective date of this subdivision, shall include a specific determination by [such physician and psychologist, or by such physicians,] the issuing court as to whether the person [who is intellectually disabled] has the capacity to make health care decisions, as defined by subdivision three of section twenty-nine hundred eighty of the public health law, for himself or herself. A determination that the person [who is intellectually disabled] has the capacity to make health care decisions shall not preclude the appointment of a guardian pursuant to this section to make other decisions on behalf of the person [who is intellectually disabled]. The absence of this determination in the case of guardians appointed prior to [the effective date of this subdivision] March sixteenth, two thousand three shall not preclude such guardians from making health care decisions. Further, guardians appointed by orders and/or decrees issued prior to the effective date of the chapter of the laws of two thousand seventeen which amended this subdivision shall have authority in all areas, unless otherwise stated in said order or decree.
§ 2. Section 1750-a of the surrogate's court procedure act is REPEALED.
§ 3. Section 1750-b of the surrogate's court procedure act, as amended by chapter 198 of the laws of 2016, is amended to read as follows: § 1750-b. Health care decisions for persons [who are intellectually
disabled] with developmental disabilities
1. Scope of authority. As used in this section, the term "developmental disability" is as defined by subdivision twenty-two of section 1.03 of the mental hygiene law and shall also include individuals with traumatic brain injury as defined by subdivision one of section two thousand seven hundred forty-one of the public health law. Unless specifically prohibited by the court after consideration of [the deter-
A. 5840 3
mination, if any, regarding a person who is intellectually disabled's] a person with a developmental disability's capacity to make health care decisions, which is required by section seventeen hundred fifty of this article, the guardian of such person appointed pursuant to section seventeen hundred fifty of this article shall have the authority to make any and all health care decisions, as defined by subdivision six of section twenty-nine hundred eighty of the public health law, on behalf of the person [who is intellectually disabled] with a developmental disability, that such person could make if such person had capacity. Such decisions may include decisions to withhold or withdraw life-sustaining treatment. For purposes of this section, "life-sustaining treatment" means medical treatment, including cardiopulmonary resuscitation and nutrition and hydration provided by means of medical treatment, which is sustaining life functions and without which, according to reasonable medical judgment, the patient will die within a relatively short time period. Cardiopulmonary resuscitation is presumed to be lifesustaining treatment without the necessity of a medical judgment by an attending physician. The provisions of this article are not intended to permit or promote suicide, assisted suicide or euthanasia; accordingly, nothing in this section shall be construed to permit a guardian to consent to any act or omission to which the person [who is intellectually disabled] with a developmental disability could not consent if such person had capacity.
(a) For the purposes of making a decision to withhold or withdraw life-sustaining treatment pursuant to this section, in the case of a person for whom no guardian has been appointed pursuant to [section seventeen hundred fifty or seventeen hundred fifty-a of] this article, a "guardian" shall also mean a family member of a person who [(i) has intellectual disability, or (ii)] has a developmental disability, as defined in [section 1.03 of the mental hygiene law, which (A) includes intellectual disability, or (B) results in a similar impairment of general intellectual functioning or adaptive behavior so that such person is incapable of managing himself or herself, and/or his or her affairs by reason of such developmental disability] this subdivision and that such person, as a result of such developmental disability, exhibits significant impairment of general or specific areas of intellectual functioning and/or adaptive behaviors in specified domains as enumerated in subdivision eight of section seventeen hundred fifty-two of this article. Qualified family members shall be included in a prioritized list of said family members pursuant to regulations established by the commissioner of the office for people with developmental disabilities. Such family members must have a significant and ongoing involvement in a person's life so as to have sufficient knowledge of their needs and, when reasonably known or ascertainable, the person's wishes, including moral and religious beliefs. In the case of a person who was a resident of the former Willowbrook state school on March seventeenth, nineteen hundred seventy-two and those individuals who were in community care status on that date and subsequently returned to Willowbrook or a related facility, who are fully represented by the consumer advisory board and who have no guardians appointed pursuant to this article or have no qualified family members to make such a decision, then a "guardian" shall also mean the Willowbrook consumer advisory board. A decision of such family member or the Willowbrook consumer advisory board to withhold or withdraw life-sustaining treatment shall be subject to all of the protections, procedures and safeguards which apply to the deci-
A. 5840 4
sion of a guardian to withhold or withdraw life-sustaining treatment pursuant to this section.
In the case of a person for whom no guardian has been appointed pursuant to this article or for whom there is no qualified family member or the Willowbrook consumer advisory board available to make such a decision, a "guardian" shall also mean, notwithstanding the definitions in section 80.03 of the mental hygiene law, a surrogate decision-making committee, as defined in article eighty of the mental hygiene law. All declarations and procedures, including expedited procedures, to comply with this section shall be established by regulations promulgated by the [commission on quality of care and advocacy for persons with disabilities] justice center for the protection of people with special needs, as established by article twenty of the executive law.
(b) Regulations establishing the prioritized list of qualified family members required by paragraph (a) of this subdivision shall be developed by the commissioner of the office for people with developmental disabilities in conjunction with parents, advocates and family members of persons [who are intellectually disabled] with developmental disabilities. Regulations to implement the authority of the Willowbrook consumer advisory board pursuant to paragraph (a) of this subdivision may be promulgated by the commissioner of the office for people with developmental disabilities with advice from the Willowbrook consumer advisory board.
(c) Notwithstanding any provision of law to the contrary, the formal determinations required pursuant to section seventeen hundred fifty of this article shall only apply to guardians appointed pursuant to section seventeen hundred fifty [or seventeen hundred fifty-a] of this article.
2. Decision-making standard. (a) The guardian shall base all advocacy and health care decision-making solely and exclusively on the best interests of the person [who is intellectually disabled] with a developmental disability and, when reasonably known or ascertainable with reasonable diligence, on [the person who is intellectually disabled's] such person's wishes, including moral and religious beliefs.
(b) An assessment of the person [who is intellectually disabled's] with a developmental disability's best interests shall include consideration of:
(i) the dignity and uniqueness of every person;
(ii) the preservation, improvement or restoration of the person [who is intellectually disabled's] with a developmental disability's health and well being;
(iii) the relief of the person [who is intellectually disabled's] with a developmental disability's suffering by means of palliative care and pain management;
(iv) the unique nature of [artificially provided] nutrition or hydration provided by medical treatment, and the effect it may have on the person [who is intellectually disabled] with a developmental disability; and
(v) the entire medical condition of the person.
(c) No health care decision shall be influenced in any way by:
(i) a presumption that persons [who are intellectually disabled] with a developmental disability are not entitled to the full and equal rights, equal protection, respect, medical care and dignity afforded to persons without [an intellectual disability or a] developmental [disability] disabilities; or
(ii) financial considerations of the guardian, as such considerations affect the guardian, a health care provider or any other party;
A. 5840 5
provided, however that the guardian shall have no financial obligation for the care of the person with developmental disabilities.
3. Right to receive information. Subject to the provisions of sections 33.13 and 33.16 of the mental hygiene law, the guardian shall have the right to receive all medical information and medical and clinical records necessary to make informed decisions regarding the person [who is intellectually disabled's] with a developmental disability's health care.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
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