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

                                  6510

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             March 25, 2015
                               ___________

Introduced  by  M. of A. WEINSTEIN, GOTTFRIED, LENTOL, STECK, ZEBROWSKI,
  COLTON, ROBINSON, ROSENTHAL -- Multi-Sponsored by -- M. of A.  ARROYO,
  BLAKE,  BRENNAN, CLARK, COOK, CRESPO, DAVILA, DenDEKKER, GALEF, GLICK,
  JAFFEE, PICHARDO, STIRPE -- read once and referred to the Committee on
  Judiciary

AN ACT to amend the mental hygiene law, in relation to  requiring  peti-
  tioners  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  ASSEM-
BLY, 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 nurs-
es, 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.
  S  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.
  S  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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09900-03-5

              

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  (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
  S  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;
  S  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  INFORMA-
TION, RELATIONSHIP TO THE ALLEGED INCAPACITATED PERSON AND ANY DOCUMENTS
KNOWN TO THE PETITIONER THAT GRANT THE AVAILABLE RESOURCE LEGAL AUTHORI-
TY  TO  MANAGE  THE  PERSONAL,  MEDICAL  AND/OR FINANCIAL AFFAIRS OF THE
ALLEGED INCAPACITATED PERSON;
  16. IF THE PETITIONER SEEKS TO REVOKE ANY LAWFULLY  EXECUTED  APPOINT-
MENT  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 PRIMARI-
LY  FOR  THE  PURPOSE  OF BILL COLLECTION OR RESOLVING A BILL COLLECTION
DISPUTE;
  S 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;
  S  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 obli-
gations law and sections two thousand nine hundred  sixty-five  and  two
thousand nine hundred eighty-one of the public health law;
  S  8.  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:
  (e) [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:
  1. one whose only interest in the person alleged to  be  incapacitated
is that of a creditor;

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  2. one, other than a relative, who is a provider, or the employee of a
provider,  of  [health  care,]  day  care[, educational,] or residential
services to the incapacitated person, whether direct or indirect.
  S  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.
  S 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 previ-
ously executed appointment, power, or delegation under [section  5-1501,
5-1505,  or  5-1506]  TITLE FIFTEEN OF ARTICLE FIVE of the general obli-
gations 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  previ-
ously  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.
  S 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.