What's happening
This bill requires petitioners seeking guardianship for an incapacitated person to identify other individuals who may manage their affairs and provide detailed information about available resources.
Why it matters
Ensures broader consideration of alternatives to guardianship. by requiring petitioners to actively identify and document all individuals and resources (such as powers of attorney or health care proxies) who might already be able to manage an incapacitated person’s affairs, potentially reducing unnecessary or duplicative guardianship appointments.
Increases transparency and accountability. by mandating that petitioners provide detailed contact information and documentation for each resource considered, and justify why existing resources are insufficient to meet the person's needs without a guardian.
Protects against improper guardianship petitions. by requiring an affirmative statement that the petition is not primarily for bill collection, aiming to prevent misuse of the guardianship process by creditors or institutions seeking payment.
Clarifies and updates legal references. to modernize the law, ensuring that all relevant types of legal authority (such as those granted under updated statutes) are properly recognized and considered before a court intervenes with a guardianship.
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Who cares
Headline styles
List Others for Guardianship
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to mental health and developmental disabilities
- Print number 4083a
- Amend and recommit to mental health and developmental disabilities
- Referred to mental health and developmental disabilities
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.
Identify Potential Guardians First
In Assembly Committee · Codes · Sponsor Helene Weinstein
Full text
3 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
4083--A
2017-2018 Regular Sessions
IN SENATE
February 3, 2017
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Developmental Disabilities -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the mental hygiene law, in relation to requiring petitioners for appointment of a guardian to identify other persons who may be able to manage the affairs of an incapacitated person
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Subdivision (e) of section 81.03 of the mental hygiene law, as amended by chapter 438 of the laws of 2004, is amended to read as follows:
(e) "available resources" means resources such as, but not limited to, all persons identified in subparagraphs (i) through (iv) of paragraph one of subdivision (g) of section 81.07 of this article, visiting nurses, homemakers, home health aides, adult day care and multipurpose senior citizen centers, powers of attorney, health care proxies, trusts, representative and protective payees, and residential care facilities.
§ 2. Paragraph 7 of subdivision (a) of section 81.06 of the mental hygiene law, as amended by chapter 438 of the laws of 2004, is amended to read as follows:
7. the chief executive officer, or the designee of the chief executive officer, of a facility in which the person alleged to be incapacitated is a patient or resident, except for where the petition is brought primarily for purposes of bill collection or resolving a bill collection dispute. Provided, however, where there is no other legally authorized or otherwise available resource, the chief executive officer, or designee of the chief executive officer, of such facility described in this article may file a petition under this article where a guardian is needed to apply for or engage in planning necessary to establish eligibility for medical assistance as provided under title eleven of article five of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02869-04-7
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the social services law for the benefit of the person alleged to be incapacitated.
§ 3. Subparagraph (iii) of paragraph 1 of subdivision (g) of section 81.07 of the mental hygiene law, as amended by chapter 438 of the laws of 2004, is amended to read as follows:
(iii) any person or persons designated by the alleged incapacitated person with authority pursuant to [sections 5-1501, 5-1505, and 5-1506] title fifteen of article five of the general obligations law, or sections two thousand nine hundred five and two thousand nine hundred eighty-one of the public health law, if known to the petitioner; and
§ 4. Paragraph 14 of subdivision (a) of section 81.08 of the mental hygiene law, as added by chapter 698 of the laws of 1992, is amended to read as follows:
14. the available resources, if any, that have been considered by the petitioner, the steps taken to identify available resources, and the petitioner's opinion as to [their sufficiency and reliability] why such resources are not sufficient or reliable enough to meet the alleged incapacitated person's needs without the appointment of a guardian;
§ 5. Paragraph 15 of subdivision (a) of section 81.08 of the mental hygiene law is renumbered paragraph 18, and three new paragraphs 15, 16 and 17 are added to read as follows:
15. for all available resources considered by the petitioner, the name, address, telephone number along with any other contact information, relationship to the alleged incapacitated person and any documents known to the petitioner that grant the available resource legal authority to manage the personal, medical and/or financial affairs of the alleged incapacitated person;
16. if the petitioner seeks to revoke any lawfully executed appointment or delegation made by the alleged incapacitated person pursuant to title fifteen of article five of the general obligations law, section twenty-nine hundred sixty-five or twenty-nine hundred eighty-one of the public health law, or any living will, the petition shall set forth specific reasons for the revocation;
17. an affirmative statement that the petition is not brought primarily for the purpose of bill collection or resolving a bill collection dispute;
§ 6. Subparagraph (xi) of paragraph 5 of subdivision (c) of section 81.09 of the mental hygiene law, as amended by chapter 438 of the laws of 2004, is amended to read as follows:
(xi) has the person alleged to be incapacitated made any appointment or delegation pursuant to [section 5-1501, 5-1505, or 5-1506] title fifteen of article five of the general obligations law, section two thousand nine hundred sixty-five or two thousand nine hundred eighty-one of the public health law, or a living will;
§ 7. Paragraph 1 of subdivision (d) of section 81.19 of the mental hygiene law, as added by chapter 698 of the laws of 1992, is amended to read as follows:
1. any appointment or delegation made by the person alleged to be incapacitated in accordance with the provisions of [section 5-1501, 5-1601 or 5-1602] title fifteen of article five of the general obligations law and sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law;
§ 8. The opening paragraph of subdivision (e) of section 81.19 of the mental hygiene law, as added by chapter 698 of the laws of 1992, is amended to read as follows:
S. 4083--A 3
[Unless the court finds that no other person or corporation is available or willing to act as guardian, or to provide needed services for the incapacitated person, the] The following persons or corporations may not serve as guardian:
§ 9. Paragraph 2 of subdivision (b) of section 81.22 of the mental hygiene law, as added by chapter 698 of the laws of 1992, is amended to read as follows:
2. revoke any appointment or delegation made by the incapacitated person pursuant to [sections 5-1501, 5-1601 and 5-1602] title fifteen of article five of the general obligations law, sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the public health law, or any living will.
§ 10. Subdivision (d) of section 81.29 of the mental hygiene law, as amended by chapter 176 of the laws of 2008, is amended to read as follows:
(d) If the court determines that the person is incapacitated and appoints a guardian, the court may modify, amend, or revoke any previously executed appointment, power, or delegation under [section 5-1501, 5-1505, or 5-1506] title fifteen of article five of the general obligations law or section two thousand nine hundred sixty-five of the public health law, or section two thousand nine hundred eighty-one of the public health law notwithstanding section two thousand nine hundred ninety-two of the public health law, or any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was incapacitated or if the court determines that there has been a breach of fiduciary duty by the previously appointed agent. In such event, the court shall require that the agent account to the guardian. The court shall not, however, invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person.
§ 11. This act shall take effect on the one hundred eightieth day after it shall have become a law, provided that, effective immediately, any rules and regulations necessary to implement the provisions of this act on its effective date are authorized and directed to be completed on or before such date.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the mental hygiene law, in relation to requiring petitioners for appointment of a guardian to identify other persons who may be able to manage the affairs of an incapacitated person
Purpose
This legislation would prevent the use of the guardianship law for the primary purpose of bill collection and would correct erroneous cross references to the power of attorney law.
Summary of provisions
Section 1 of the bill amends subdivision (e) of Section 81.03 of the mental hygiene law to expand the list of available resources, people who would be served notice of a guardianship petition including family members, people granted legal authority to manage the personal, medical and/or financial affairs of the alleged incapacitated person and persons or entities that have demonstrated a genuine interest in promoting the best interests of the alleged incapacitated person (AIP).
Read the full memo (1,139 words)
Section 2 of the bill amends paragraph 7 of subdivision (a) of Section 81.06 of the mental hygiene law to prevent nursing homes from filing guardianship petitions where the petition is brought primarily for purposes of bill collection or resolving a bill collection dispute.
Section 4 of the bill amends paragraph 14, of subdivision (a) of section 81.08 of the mental hygiene law to require the petitioner to provide information about the steps take to identify available resources, along with an explanation for why such resources are not sufficient or reliable to meet the AIP's needs without the appointment of a guardian.
Section 5 of the bill amends subdivision (a) of section 81.08 of the mental hygiene law by renumbering paragraph 15 and adding new paragraphs 15, 16 and 17 that enhance the pleading requirements of a guardianship petition relating to available resources considered. The new paragraphs require the petitioner to provide information to the court about the available guardianship resources considered by the petitioner, information about any documents known to the petitioner that grant such resources legal authority to manage the affairs of the AIP, where relevant, specific reasons for seeking revocation of any appointments or delegations made by the ALP, and a verification that the petition is not brought for the purpose of bill collection or to resolve a bill collection dispute.
Section 7 of the bill amends subdivision (e) of section 81.19 of the mental hygiene law to preclude persons or corporations whose only interest in the ALP is that of a creditor or those who provide day care, health care, educational or residential services to the AIP from serving as guardians.
Sections 3, 6, 8, 9 and 10 of the bill amend sections 81.09, 81.19, 81.22 and 81.29 to fix erroneous cross-references to the power of attorney law that was modified in 2008.
Section 11 of the bill provides that this act shall take effect on the one hundred eightieth day after it shall have become a law, provided that, effective immediately, any rules and regulations necessary to implement the provisions of this act on its effective date are authorized and directed to be completed on or before such date.
Justification
A recent article published in the New York Times, "To Collect Debts, Nursing Homes Are Seizing Control Over Patients", January 25, 2015 high- lighted a disturbing practice where some nursing homes are filing guardianship petitions against vulnerable disabled nursing home residents, over the objection of family members, primarily as a means of bill collection. The article details how a nursing home appears to have filed a guardianship petition against a resident of the facility suffering from dementia, primarily for the purpose of resolving a bill collection dispute. The petition was filed over the objections of the resident's husband who had power of attorney and a health care proxy. Ultimately the nursing home withdrew the petition, but the husband had to spend a significant amount of money to challenge the petition and to assert his legal rights.
Guardianship transfers an incapacitated person's legal rights to make financial and personal care decisions to someone appointed by the court. Guardianship petitions are generally filed by family members to help them meet the personal or property management needs of an incapacitated relative. The guardianship statue was enacted in 1993 by the legislature to protect disabled individuals who are unable to manage their affairs on their own because of incapacity and to help meet their needs in a manner that affords them the greatest amount of independence and self-determination in all decisions affecting their lives.
However, it appears that nursing homes have been increasingly using these petitions to collect unpaid bills or to coerce settlement of bill disputes with residents. According to a study done by researchers at Hunter College, over twelve percent of guardianship petitions filed in Manhattan over the last decade were brought by nursing homes against their residents. While some of these cases may have had legitimate purposes, there is significant concern that many of these cases were likely used as a means to collect bills.
One judge has ruled this misuse of the guardianship statute - Article 81 of the mental hygiene law - as an abuse of the law. See In re G.S., 17 Misc. 3d 303, 841 N.Y.S.2d 428 (Sup.Ct.2007). Even if the petition is ultimately unsuccessful, the mere filing causes the family to spend significant sums of money for legal representation to defend against a stranger being appointed a guardian of a loved one. As a result, families may agree to settle bill disputes with a nursing home facility in exchange for discontinuance or withdrawal of the guardianship petition.
We have also heard concerns from disability advocates that nursing homes may also refuse to recognize the legal rights of relatives under health care proxies or powers of attorney.
This proposal would help ensure that nursing home facilities do not file guardianship petitions primarily as a means of resolving bill disputes. The proposal would still permit hospitals or nursing homes to commence guardianship actions to help meet the needs of an incapacitated person e.g. to facilitate discharge planning or to assist the person with becoming Medicaid-eligible.
The proposal will also dissuade such facilities from circumventing the intent of the incapacitated person by making it harder for them to deny, without legitimate basis, the legal rights of relatives, friends or others with lawfully executed appointments or delegations made by the alleged incapacitated person to meet his/her needs.
Legislative history
2016: S.4642-A - Referred to Mental health and Developmental Disabilities 2015: S.4642-A - 3rd Reading Calendar
Fiscal implications
None
Effective date
This act shall take effect on the one hundred eightieth day after it shall have become a law, provided that, effective immediately, any rules and regulations necessary to implement the provisions of this act on its effective date are authorized and directed to be completed on or before such date.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.