senate Bill S7587B

Signed By Governor
2011-2012 Legislative Session

Relates to the appointment of guardians

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Archive: Last Bill Status Via A10608 - Signed by Governor


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Oct 03, 2012 signed chap.475
Sep 21, 2012 delivered to governor
Jun 21, 2012 returned to assembly
passed senate
3rd reading cal.1487
substituted for s7587b
Jun 21, 2012 substituted by a10608a
ordered to third reading cal.1487
Jun 18, 2012 print number 7587b
amend and recommit to rules
Jun 08, 2012 print number 7587a
amend (t) and recommit to rules
Jun 05, 2012 referred to rules

Votes

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Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

S7587 - Bill Details

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

S7587 - Bill Texts

view summary

Relates to the appointment of guardians.

view sponsor memo
BILL NUMBER:S7587

TITLE OF BILL:
An act
to
amend the executive law, 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 Executive Law, 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 Executive Law section 845-b(2) to memorialize that criminal
history searches would be authorized in proceedings pursuant to MHL
section 81.19, as amended by section 3 of this act.

Section two 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 three 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 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 three also would clarify that, upon consideration of the
foregoing data, a court may appoint, refuse to appoint or revoke an
appointment of any person as guardian pursuant to MHL article 81.

Section four would render this measure effective immediately upon
enactment.

This measure would have no fiscal impact on the State or any
municipality.

LEGISLATIVE HISTORY:
None. New proposal.

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

                                  7587

                            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

AN ACT to amend the executive law, 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. Subdivision 2 of section 845-b of  the  executive  law,  as
amended  by  chapter  769  of  the  laws  of 2005, is amended to read as
follows:
  2. Where a provider is authorized or required to request  a  check  of
criminal history information by an authorized agency pursuant to section
16.33,  [or] 31.35 OR 81.19 of the mental hygiene law or article twenty-
eight-E of the public health law, such provider shall  proceed  pursuant
to  the  provisions  of this section and in a manner consistent with the
provisions of article twenty-three-A of the correction law, subdivisions
fifteen and sixteen of section two hundred ninety-six  of  this  chapter
and all other applicable laws.
  S  2.    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 3. 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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15240-01-2

S. 7587                             2

AN  OR PROPOSED GUARDIAN AND ANY PERSON EIGHTEEN YEARS OR OLDER RESIDING
IN THE GUARDIAN OR PROPOSED GUARDIAN'S HOUSEHOLD:
  (I)  A CRIMINAL HISTORY RECORD CHECK OF SUCH PERSON OR PERSONS; AND IN
FURTHERANCE THEREOF, THE COURT SHALL HAVE THE POWER TO MAKE AND  ENFORCE
SUCH  ORDERS  AS THE COURT SHALL DEEM NECESSARY TO OBTAIN RECORDS OF ANY
SUCH PERSON'S CRIMINAL  HISTORY,  INCLUDING  BUT  NOT  LIMITED  TO:  (1)
DIRECTING  SUCH PERSON TO BE FINGERPRINTED; (2) DIRECTING THAT THE DIVI-
SION OF CRIMINAL JUSTICE SERVICES PROMPTLY SHALL PROVIDE TO THE COURT  A
CRIMINAL HISTORY RECORD, IF ANY, WITH RESPECT TO SUCH PERSON PURSUANT TO
SECTION  EIGHT HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW, OR A STATEMENT
THAT SUCH PERSON HAS NO CRIMINAL  RECORD;  AND  (3)  PROVIDING  FOR  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  CRIMINAL  HISTORY RECORD CHECK PURSUANT TO AND CONSISTENT
WITH PUBLIC LAW 92-544 TO DETERMINE IF SUCH PERSON HAS A CRIMINAL HISTO-
RY 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;
  (II) 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. UPON CONSIDERATION OF RECORDS AND REPORTS  SPECIFIED  IN  PARAGRAPH
ONE  OF  THIS  SUBDIVISION, OR 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.
  S 4. This act shall take effect immediately.

S7587A - Bill Details

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

S7587A - Bill Texts

view summary

Relates to the appointment of guardians.

view sponsor memo
BILL NUMBER:S7587A REVISED 06/08/12

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 Administra-
tive Judge, on recommendation of her Guardianship Advisory Committee.

This measure would amend provisions of the Executive Law, 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 informa-
tion 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 corre-
sponding 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 SPCA §§ 1704, 1706(a), 1707).

By stark contrast, current law denies this vital data to judges presid-
ing 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). Typical-
ly 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 "'1d 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 revoca-
tions 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 finger-
prints 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 computer-
ized 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 subdivision one of 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.

Section three would render this measure effective immediately upon
enactment.

This measure would have no fiscal impact on the State or any munici-
pality.

2012 LEGISLATIVE HISTORY:
Senate 7587-A (Sen. McDonald) (recom to Rules)
Assembly 10608 (M. of A. Weinstein (ref to Judiciary)

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

                                 7587--A

                            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

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
PERSON  HAS  NO  CRIMINAL  RECORD; AND (3) DIRECT THE SUBMISSION OF SUCH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15240-03-2

S. 7587--A                          2

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  SUBDIVISION  ONE  OF  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 immediately.

S7587B (ACTIVE) - Bill Details

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

S7587B (ACTIVE) - Bill Texts

view summary

Relates to the appointment of guardians.

view 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)


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                    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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