BILL NUMBER:S6977

TITLE OF BILL:
An act
to amend the surrogate's court procedure act, in relation to guardianship
succession procedures and time frames

PURPOSE:
To establish a procedure to address the increasingly common problem
where Article 17-A standby guardians fail to step in after the death,
renunciation or incapacity of the primary guardian, leaving mentally
retarded or developmentally disabled persons without a guardian to
act on their behalf.

SUMMARY OF PROVISIONS:
Section 1 amends the surrogate's courts procedure act (SCPA) section
1757 by adding a new subdivision.3 to allow the court to:

(1) deem the failure of a standby or alternate guardian to assume the
duties of guardian, seek court confirmation or renounce the
guardianship, within sixty days of written notice by personal
delivery or certified mail, of the prior guardian's inability to
serve and the standby or alternate guardian's duty to serve, seek
court confirmation or renounce such role to constitute an implied
renunciation of the guardianship;

              

(2) authorize, notwithstanding the time period provided for in
subdivision 2 of this section, any remaining standby or alternate
standby guardian to serve in such capacity provided an application
for confirmation or an application for modification of the
guardianship order is filed in accordance with the provisions of the
SCPA.

Section 2 is the effective date.

JUSTIFICATION:
Non-profit organizations supporting people with intellectual and other
developmental disabilities report an increasingly common problem
where Article 17-A standby guardians are failing to step in after the
death, renunciation or incapacity of the primary guardian, leaving
mentally retarded or developmentally disabled persons without a
guardian to act on their behalf.

NYSARC, Inc. a non-profit organization supporting people with
disabilities and their families since 1949 provides examples of the
problem. NYSARC reports that it is a 17-A guardian for 365
individuals and standby guardian for 409 additional individuals
statewide. NYSARC notes that 45 standby or alternate standby
guardianships (more than 10% of NYSARC's existing standby
guardianships) are currently stymied because a person or entity in a
superior standby position to NYSARC has failed or refused to act as

required by SCPA. NYSARC states that it has no statutory authority
to provide the individual the protection and advocacy authorized for
primary 17-A guardians.

It is believed that standby guardians lack either (1) knowledge that
the primary guardian (often an aging parent or sibling of the ward)
has died or become incapable of serving as primary guardian; (2)
understanding that they should act; and/or (3) understanding of how
to act. In 2009 SCPA was amended to extend the time for a standby
guardian to seek confirmation of guardianship from 90 days to 180
days following "assumption" of duties. However, it remains
all-too-common that alternate standby guardians do not assume their
duties for far longer than 180 days.

This legislation would permit standby guardians to promptly notify
preceding standby guardians of their duty to timely act and then to
seek court intervention if necessary to ensure that the individual
with a disability has a timely court-appointed guardian.

LEGISLATIVE HISTORY
New bill

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.