senate Bill S7587B

Relates to the appointment of guardians

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 05 / Jun / 2012
    • REFERRED TO RULES
  • 08 / Jun / 2012
    • AMEND (T) AND RECOMMIT TO RULES
  • 08 / Jun / 2012
    • PRINT NUMBER 7587A
  • 18 / Jun / 2012
    • AMEND AND RECOMMIT TO RULES
  • 18 / Jun / 2012
    • PRINT NUMBER 7587B
  • 21 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1487
  • 21 / Jun / 2012
    • SUBSTITUTED BY A10608A

Summary

Relates to the appointment of guardians.

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Bill Details

See Assembly Version of this Bill:
A10608A
Versions:
S7587
S7587A
S7587B
Legislative Cycle:
2011-2012
Law Section:
Correction Law
Laws Affected:
Amd §168-b, Cor L; amd §81.19, Ment Hyg L
Versions Introduced in 2011-2012 Legislative Cycle:
A10608A

Sponsor Memo

BILL NUMBER:S7587B REVISED 06/19/12

TITLE OF BILL:
An act
to
amend the correction law and the mental hygiene law,
in relation to the appointment of guardians

This measure is being introduced at the request of the Chief
Administrative Judge, on recommendation of her Guardianship Advisory
Committee.

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)


view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7587--B

                            I N  S E N A T E

                              June 5, 2012
                               ___________

Introduced by Sen. McDONALD -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on  Rules  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee --  committee  discharged,  bill  amended,  ordered  reprinted  as
  amended and recommitted to said committee

AN  ACT  to  amend  the  correction  law  and the mental hygiene law, in
  relation to the appointment of guardians

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    Subparagraph  (iii)  of paragraph b of subdivision 2 of
section 168-b of the correction law, as amended by chapter  595  of  the
laws  of 2008 and as further amended by section 104 of part A of chapter
62 of the laws of 2011, is amended to read as follows:
  (iii) a court, to  enable  the  court  to  promptly  comply  with  the
provisions  of paragraph (a-1) of subdivision one of section two hundred
forty of the domestic relations law, [and] subdivision  (e)  of  section
six  hundred  fifty-one  of the family court act, AND SUBDIVISION (G) OF
SECTION 81.19 OF THE MENTAL HYGIENE LAW.
  S 2. Section 81.19 of the mental hygiene law is amended  by  adding  a
new subdivision (g) to read as follows:
  (G)  1.  IN  MAKING  AN  APPOINTMENT OR CONSIDERING A REVOCATION OF AN
APPOINTMENT UNDER THIS ARTICLE, THE COURT ALSO MAY OBTAIN AND  CONSIDER,
AND MAY AUTHORIZE A COURT EVALUATOR TO REVIEW THE SAME AND REPORT TO THE
COURT CONCERNING, ANY OF THE FOLLOWING INFORMATION REGARDING THE GUARDI-
AN  OR  PROPOSED  GUARDIAN,  AND, IF THE INCAPACITATED PERSON RESIDES OR
WILL RESIDE WITH SUCH GUARDIAN OR PROPOSED GUARDIAN, ANY PERSON EIGHTEEN
YEARS OR OLDER RESIDING IN THE GUARDIAN OR  PROPOSED  GUARDIAN'S  HOUSE-
HOLD:
  (I)  A CRIMINAL HISTORY RECORD CHECK OF SUCH PERSON OR PERSONS; AND IN
FURTHERANCE THEREOF, THE COURT SHALL BE AUTHORIZED TO: (1) OBTAIN A  SET
OF  SUCH PERSON'S FINGERPRINTS; (2) DIRECT THAT THE DIVISION OF CRIMINAL
JUSTICE SERVICES PROMPTLY  PROVIDE  TO  THE  COURT  A  CRIMINAL  HISTORY
RECORD,  IF  ANY,  WITH  RESPECT TO SUCH PERSON OR A STATEMENT THAT SUCH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15240-06-2

S. 7587--B                          2

PERSON HAS NO CRIMINAL RECORD; AND (3) DIRECT  THE  SUBMISSION  OF  SUCH
PERSON'S  FINGERPRINTS  BY  THE DIVISION OF CRIMINAL JUSTICE SERVICES TO
THE FEDERAL BUREAU OF INVESTIGATION FOR PURPOSES OF A NATIONWIDE  CRIMI-
NAL  HISTORY  RECORD  CHECK  PURSUANT  TO AND CONSISTENT WITH PUBLIC LAW
92-544 TO DETERMINE IF SUCH PERSON HAS A CRIMINAL HISTORY IN  ANY  STATE
OR FEDERAL JURISDICTION;
  (II) REPORTS FOR SUCH PERSON OR PERSONS FROM THE SEX OFFENDER REGISTRY
ESTABLISHED AND MAINTAINED PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-B
OF THE CORRECTION LAW;
  (III)  INDICATED REPORTS FOR SUCH PERSON OR PERSONS FROM THE STATEWIDE
CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT ESTABLISHED  AND  MAIN-
TAINED  PURSUANT  TO  SECTION  FOUR  HUNDRED  TWENTY-TWO  OF  THE SOCIAL
SERVICES LAW, UPON A FINDING BY THE COURT, PURSUANT TO  PARAGRAPH  E  OF
SUBDIVISION FOUR OF SUCH SECTION, THAT SUCH INFORMATION IS NECESSARY FOR
THE COURT TO DETERMINE WHETHER TO MAKE OR CONTINUE AN APPOINTMENT PURSU-
ANT TO THIS ARTICLE;
  (IV) REPORTS FOR SUCH PERSON OR PERSON FROM THE STATEWIDE COMPUTERIZED
REGISTRY  OF ORDERS OF PROTECTION ESTABLISHED AND MAINTAINED PURSUANT TO
SECTION TWO HUNDRED TWENTY-ONE-A OF THE EXECUTIVE LAW; AND
  (V) RELATED DECISIONS IN COURT PROCEEDINGS INITIATED PURSUANT TO ARTI-
CLE TEN OF THE FAMILY COURT ACT AND RELATED WARRANTS  ISSUED  UNDER  THE
FAMILY COURT ACT.
  2.  THE  COURT SHALL OBTAIN AND CONSIDER RECORDS AND REPORTS SPECIFIED
IN PARAGRAPH ONE OF THIS SUBDIVISION BETWEEN THE TIME THE JUDGE EXECUTES
THE ORDER TO SHOW CAUSE AND THE HEARING DATE OF THE ORDER TO SHOW  CAUSE
IF A GUARDIAN OR GUARDIANS ARE PROPOSED IN THE PETITION OR, AS SOON AS A
GUARDIAN OR GUARDIANS ARE PROPOSED BY A PARTY TO THE PROCEEDING OR NOMI-
NATED  BY  THE  PERSON  ALLEGED TO BE INCAPACITATED, DURING A PROCEEDING
UNDER THIS ARTICLE.
  3. UPON CONSIDERATION OF ALL FACTORS BEARING ON THE BEST INTERESTS  OF
THE INCAPACITATED PERSON INCLUDING CONSIDERATION OF ALL RELEVANT FACTORS
IN  SECTION SEVEN HUNDRED FIFTY-THREE OF THE CORRECTION LAW, THE RECORDS
AND REPORTS SPECIFIED IN PARAGRAPH ONE  OF  THIS  SUBDIVISION,  AND  THE
COURT  EVALUATOR'S  REPORT THEREON, AND AFTER NOTIFYING COUNSEL INVOLVED
IN THE PROCEEDING, OR IN THE EVENT OF A SELF-REPRESENTED PARTY NOTIFYING
SUCH PARTY, THE COURT MAY APPOINT,  REFUSE  TO  APPOINT  OR  REVOKE  THE
APPOINTMENT OF ANY PERSON AS GUARDIAN PURSUANT TO THIS ARTICLE.
  4.  WHERE  THE  COURT  REQUESTS A CRIMINAL HISTORY RECORD FOR A PERSON
PURSUANT TO THIS SECTION, THE COURT SHALL PROVIDE  THE  SUBJECT  OF  THE
REQUEST  WITH  A  COPY  OF HIS OR HER CRIMINAL HISTORY RECORD, IF ANY, A
REASONABLE TIME BEFORE CONSIDERATION OF SUCH RECORD UNDER THIS  SUBDIVI-
SION  AND  INFORM  SUCH PERSON OF HIS OR HER RIGHT TO SEEK CORRECTION OF
ANY INCORRECT INFORMATION CONTAINED IN SUCH  RECORD  PURSUANT  TO  REGU-
LATIONS  AND  PROCEDURES ESTABLISHED BY THE DIVISION OF CRIMINAL JUSTICE
SERVICES.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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