What's happening
This bill updates and expands New York guardianship laws for persons with developmental disabilities or traumatic brain injury, revising procedures, definitions, and safeguards.
Why it matters
Expands eligibility and clarifies definitions. The bill broadens who may be covered under guardianship by including persons with traumatic brain injury, not just developmental disabilities, and aligns definitions with current mental hygiene and public health law. This means more individuals may access legal protections or support, and the legal language is updated to reflect contemporary understanding and terminology.
Strengthens procedural safeguards and rights. It introduces new procedures for notice, representation, and hearings. Notably, it ensures that individuals subject to guardianship have the right to object, to be represented by counsel with specific experience in developmental disabilities (at no cost to them), and to participate in proceedings unless excused for cause. These safeguards are meant to protect individual autonomy and prevent unnecessary or overly broad guardianships.
Promotes tailored and limited guardianships. The bill requires guardianship arrangements to be specifically tailored to the individual’s needs, with clear domains of authority and an emphasis on using the least restrictive alternative. It encourages consideration of alternatives like health care proxies or supported decision-making, and allows for temporary or single-purpose guardianships in transitional life events, aiming to avoid unnecessary loss of independence.
Enhances transparency and accountability. New requirements for annual financial reporting by guardians, expanded notification to involved parties, and oversight mechanisms (like annual account verification and easier modification or termination of guardianship) are designed to prevent misuse of authority and protect the interests of vulnerable individuals. This increases accountability for guardians and transparency for families and the court.
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Who cares
- Likely concerns
People with developmental disabilities or traumatic brain injuries
The bill would require guardians’ powers to be tailored to individual needs and give respondents the right to a hearing or jury trial when they object to the requested guardianship.
Parents, family caregivers and guardians
The bill would require petitions to explain why alternatives to guardianship were rejected and direct guardians to consider the person’s wishes and encourage participation in decisions.
Mental Hygiene Legal Service and Surrogate’s Courts
The bill would require notice to the service of every guardianship petition and establish new representation, investigation and court appearance procedures.
Hospitals, physicians and other health care providers
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 as defined in the bill.
Headline styles
Update Guardianship for Disabilities
Plain English, a few words. Used as the page title.
Sponsors
History
- Referred to judiciary
- Returned to senate
- Died in assembly
- Referred to judiciary
- Delivered to assembly
- Passed senateVote 61–1
- Ordered to third reading cal.2215
- Reported and committed to rules
- 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.
Reform Guardianship for Disabilities
In Assembly Committee · Judiciary · Sponsor Charles Lavine
Full text
21 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
5842
2017-2018 Regular Sessions
IN SENATE
May 2, 2017
Introduced by Sen. HANNON -- read twice and ordered printed, and when printed to be committed 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
S. 5842 2
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-
S. 5842 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-
S. 5842 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;
S. 5842 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.
Sponsor's memo
Title of bill
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
Purpose
This bill amends the Surrogate's Court Procedure Act (SCPA) to better reflect the rights of individuals with developmental disabilities by removing obsolete language and addressing current legal standards.
Summary of provisions
Section 1 of this bill would amend the SCPA § 1750 to update language, to clarify that individuals with traumatic brain injuries may use Article 17-A to obtain guardianship, 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 and that guardianship orders issued prior to the effective date of these changes needing future changes to succession would not be required to resubmit the proof of the need for guardianship.
Read the full memo (1,240 words)
Section 2 of the bill would repeal SCPA § 1750-a.
Section 3 of the bill would amend SCPA § 1750-b to update language and create consistent internal language.
Section 4 of the bill would amend SCPA § 1751 to create consistent internal language, 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, and clarify that the individual who is the subject of the petition can voluntarily consent to the appointment of a guardian.
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. In addition, this section provides that petitions to modify current guardianship orders may be brought in the county where guardianship was initially granted or where the person with a developmental disability resides.
Section 6 of the bill would amend the SCPA § 1752 to create consistent internal 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 to allow for tailoring of the final decree.
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 repeal the current SCPA § 1754 and replace it with an entirely new SCPA § 1754 providing a requirement that an appearance be scheduled in the matter, with MHLS being involved in every case (not just those where the individual resides in a mental hygiene facility) and that MHLS be 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 or whether MHLS is in accord with the areas of authority sought by the proposed guardian. This section would also provide MHLS the ability to request an expert evaluation, if necessary, to ascertain the need for guardianship in any area(s).
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 create internally consistent language in the Article and require that any guardians ad litem assigned to these matters have demonstrated experience with and knowledge of persons with developmental disabilities.
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 create internal consistency in the Article and clarify that courts shall not require petitioners to resubmit proof of the need for guardianship in certain cases where the need was previously adjudicated.
Section 15 of the bill would also amend SCPA § 1760 to both create internal consistency in language and provide that not-for-profit corporations that serve as guardian of the person have the authority to establish supplemental needs trusts for the benefit of the individual with a developmental disability, if necessary.
Section 17 of the bill would add a new section § 1762 to the SCPA entitled Annual account and asset verification form to simplify the annual reporting requirement for guardians of the property.
Section 18 of the bill would amend Judiciary Law § 35 to provide that when a surrogate's court orders a hearing for guardianship under Article 17-A that the court may assign counsel to represent the individual for whom guardianship is proposed at no cost if the individual is not financially able to obtain counsel. This section would further amend Judiciary Law § 35 to provide that where an expert opinion as to capacity is required by the court, it shall be so ordered.
Section 19 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.
Justification
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.
Legislative history
New bill.
Fiscal implications
Unknown
Effective date
The bill would be effective on the 180th day after enactment
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.