Senate Bill S4983

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

                                  4983

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             April 27, 2015
                               ___________

Introduced  by  Sen.  ORTT  -- (at request of the Office for People with
  Developmental Disabilities) -- 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, in relation to
  guardianship and health care decisions of persons  with  developmental
  disabilities;  and  to  repeal certain provisions of such law relating
  thereto

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

  Section  1.  Section  1750  of the surrogate's court procedure act, as
amended by chapter 500 of the laws  of  2002,  is  amended  to  read  as
follows:
S 1750. Guardianship  of  [mentally retarded] persons WITH DEVELOPMENTAL
          DISABILITIES
  1. When it shall appear to the satisfaction of the court that a person
is a [mentally retarded] person WITH A DEVELOPMENTAL  DISABILITY  WITHIN
THE  MEANING  OF  SUBDIVISION  TWENTY-TWO  OF SECTION 1.03 OF THE MENTAL
HYGIENE LAW 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, 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 [mentally retarded]
person WITH A DEVELOPMENTAL DISABILITY. 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
not  apply  to  the appointment of a guardian or guardians of a mentally
retarded person].
  [1.  For the purposes of this article, a mentally retarded person is a
person who has been certified by one licensed physician and one licensed

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09619-02-5
              

S. 4983                             2

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  mental  retardation,  having  qualifications to make such
certification, as being incapable to manage him or herself and/or his or
her  affairs  by reason of mental retardation 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 ARTI-
CLE.
  [2.] 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 wheth-
er  the  [mentally  retarded] person WITH A DEVELOPMENTAL DISABILITY 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  [mentally  retarded]
person  WITH  A DEVELOPMENTAL DISABILITY 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  [mentally
retarded]  person  WITH  A DEVELOPMENTAL DISABILITY. The absence of this
determination in the case of guardians appointed prior to [the effective
date of this subdivision] MARCH 16, 2003, shall not preclude such guard-
ians from making health care decisions. FURTHER, GUARDIANS APPOINTED  BY
ORDERS  AND/OR DECREES ISSUED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDI-
VISION SHALL HAVE AUTHORITY IN ALL AREAS, UNLESS OTHERWISE STATED.
  S 2.  Section  1750-a  of  the  surrogate's  court  procedure  act  is
REPEALED.
  S  3.  Section 1750-b of the surrogate's court procedure act, as added
by chapter 500 of the laws of 2002, subdivision 1 as amended by  chapter
105  of  the laws of 2007, the opening paragraph, paragraphs (a) and (b)
of subdivision 1 and the opening paragraph of subdivision 4  as  amended
by  chapter 8 of the laws of 2010, subparagraph (i) of paragraph (a) and
clause A of subparagraph (i)  of  paragraph  (e)  of  subdivision  4  as
amended  by  section 18 of part J of chapter 56 of the laws of 2012, and
paragraph (d) of subdivision 5 as added by chapter 262 of  the  laws  of
2008, is amended to read as follows:
S 1750-b. Health  care  decisions  for  [mentally retarded] persons WITH
            DEVELOPMENTAL DISABILITIES
  1. Scope of authority. AS USED IN THIS  SECTION,  THE  TERM  "DEVELOP-
MENTAL  DISABILITY"  IS  AS DEFINED BY SUBDIVISION TWENTY-TWO OF SECTION
1.03 OF THE MENTAL HYGIENE LAW. Unless specifically  prohibited  by  the
court  after  consideration  of  [the determination, if any, regarding a
mentally retarded person'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 [mentally retarded]  person  WITH  A
DEVELOPMENTAL  DISABILITY that such person could make if such person had

S. 4983                             3

capacity. Such decisions may include decisions to withhold  or  withdraw
life-sustaining  treatment. For purposes of this section, "life-sustain-
ing treatment" means medical treatment, including cardiopulmonary resus-
citation and nutrition and hydration provided by means of medical treat-
ment, 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 life-
sustaining 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 [mentally  retarded]  person
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
mental  retardation, or (ii)] has a developmental disability, as defined
in SUBDIVISION TWENTY-TWO OF section 1.03 of  the  mental  hygiene  law,
[which  (A)  includes  mental  retardation,  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] AND THAT SUCH
PERSON,  AS  A RESULT OF SUCH DEVELOPMENTAL DISABILITY, EXHIBITS SIGNIF-
ICANT IMPAIRMENT OF GENERAL OR SPECIFIC AREAS OF INTELLECTUAL  FUNCTION-
ING  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  [mental  retardation  and] 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 "guard-
ian" 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-
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 pursu-
ant to this article or for whom there is no qualified family  member  or
the  Willowbrook  consumer advisory board available to make such a deci-
sion, 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

S. 4983                             4

[commission on quality of care and advocacy for persons  with  disabili-
ties] 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 [mental retardation and] developmental  disabili-
ties  in  conjunction  with  parents,  advocates  and  family members of
persons [who are mentally  retarded]  WITH  DEVELOPMENTAL  DISABILITIES.
Regulations to implement the authority of the Willowbrook consumer advi-
sory  board pursuant to paragraph (a) of this subdivision may be promul-
gated by the commissioner of the  office  of  [mental  retardation  and]
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 [mentally retarded] person WITH A  DEVELOPMENTAL  DISA-
BILITY and, when reasonably known or ascertainable with reasonable dili-
gence,  on [the mentally retarded] SUCH person's wishes, including moral
and religious beliefs.
  (b) An assessment of the [mentally retarded person's]  PERSON  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  [mentally
retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S health;
  (iii)  the  relief  of  the [mentally retarded person's] PERSON 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 MEANS OF MEDICAL TREATMENT, and the effect it  may
have  on the [mentally retarded] person 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 with [mental retardation] DEVELOPMENTAL
DISABILITIES are not entitled  to  the  full  and  equal  rights,  equal
protection,  respect, medical care and dignity afforded to persons with-
out [mental retardation or] developmental disabilities; or
  (ii) financial considerations of the guardian, as such  considerations
affect the guardian, a health care provider or any other party.
  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 [mentally
retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S health care.
  4. Life-sustaining treatment. The guardian shall have the  affirmative
obligation  to advocate for the full and efficacious provision of health
care, including life-sustaining treatment. In the event that a  guardian
makes  a decision to withdraw or withhold life-sustaining treatment from
a [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY:
  (a) The attending physician, as defined in subdivision two of  section
twenty-nine  hundred  eighty of the public health law, must confirm to a

S. 4983                             5

reasonable degree of medical  certainty  that  the  [mentally  retarded]
person  WITH  A  DEVELOPMENTAL  DISABILITY lacks capacity to make health
care decisions. The determination  thereof  shall  be  included  in  the
[mentally  retarded  person's]  PERSON WITH A DEVELOPMENTAL DISABILITY'S
medical record, and shall contain  such  attending  physician's  opinion
regarding the cause and nature of the [mentally retarded] person's inca-
pacity as well as its extent and probable duration. The attending physi-
cian who makes the confirmation shall consult with another physician, or
a  [licensed]  psychologist,  to further confirm the [mentally retarded]
person's lack of capacity. The attending physician who makes the confir-
mation, or the physician or licensed psychologist with whom the  attend-
ing physician consults, must (i) be employed by a developmental disabil-
ities  services  office named in section 13.17 of the mental hygiene law
or employed by the office for people with developmental disabilities  to
provide treatment and care to people with developmental disabilities, or
  (ii)  have been employed for a minimum of two years to render care and
service in a facility or program operated, licensed or authorized by the
office [of mental retardation and] FOR PEOPLE WITH  developmental  disa-
bilities, or
  (iii)  have  been  approved by the commissioner of [mental retardation
and] developmental disabilities in accordance with  regulations  promul-
gated by such commissioner. Such regulations shall require that a physi-
cian  or  licensed  psychologist  possess  specialized training or three
years experience in treating [mental retardation] PEOPLE  WITH  DEVELOP-
MENTAL  DISABILITIES. A record of such consultation shall be included in
the [mentally retarded person's] PERSON WITH A  DEVELOPMENTAL  DISABILI-
TY'S medical record.
  (b)  The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law,  with  the  concur-
rence  of  another  physician  with  whom such attending physician shall
consult, must determine to a reasonable degree of medical certainty  and
note  on  the  [mentally  retarded person's] PERSON WITH A DEVELOPMENTAL
DISABILITY'S chart that:
  (i) the [mentally retarded] person has a medical condition as follows:
  A. a terminal condition, as defined  in  subdivision  twenty-three  of
section twenty-nine hundred sixty-one of the public health law; or
  B. permanent unconsciousness; or
  C.  a  medical condition other than such person's [mental retardation]
DEVELOPMENTAL DISABILITY which requires  life-sustaining  treatment,  is
irreversible and which will continue indefinitely; and
  (ii)  the  life-sustaining  treatment  would  impose  an extraordinary
burden on such person, in light of:
  A. such person's medical condition, other than such  person's  [mental
retardation] DEVELOPMENTAL DISABILITY; and
  B.  the  expected  outcome  of the life-sustaining treatment, notwith-
standing such person's [mental  retardation]  DEVELOPMENTAL  DISABILITY;
and
  (iii)  in  the case of a decision to withdraw or withhold artificially
provided nutrition or hydration:
  A. there is no reasonable hope of maintaining life; or
  B. the artificially provided nutrition or hydration poses an  extraor-
dinary burden.
  (c)  The  guardian  shall  express  a decision to withhold or withdraw
life-sustaining treatment either:
  (i) in writing, dated and signed in the presence of one witness  eigh-
teen years of age or older who shall sign the decision, and presented to

S. 4983                             6

the  attending physician, as defined in subdivision two of section twen-
ty-nine hundred eighty of the public health law; or
  (ii)  orally,  to two persons eighteen years of age or older, at least
one of whom is the [mentally retarded person's] PERSON WITH  A  DEVELOP-
MENTAL  DISABILITY'S  attending physician, as defined in subdivision two
of section twenty-nine hundred eighty of the public health law.
  (d) The attending physician, as defined in subdivision two of  section
twenty-nine  hundred  eighty  of  the public health law, who is provided
with the decision of a  guardian  shall  include  the  decision  in  the
[mentally  retarded  person's]  PERSON WITH A DEVELOPMENTAL DISABILITY'S
medical chart, and shall either:
  (i) promptly issue an order to withhold  or  withdraw  life-sustaining
treatment  from  the  [mentally  retarded]  person, and inform the staff
responsible for such person's care, if any, of the order; or
  (ii) promptly object to such decision, in accordance with  subdivision
five of this section.
  (e)  At least forty-eight hours prior to the implementation of a deci-
sion to withdraw life-sustaining treatment, or at the earliest  possible
time prior to the implementation of a decision to withhold life-sustain-
ing treatment, the attending physician shall notify:
  (i)  the  [mentally  retarded] person WITH A DEVELOPMENTAL DISABILITY,
except if the attending physician determines, in writing and in  consul-
tation  with  another  physician  or a licensed psychologist, that, to a
reasonable degree of medical certainty, the person would suffer  immedi-
ate  and  severe  injury from such notification. The attending physician
who makes the confirmation, or the physician  or  licensed  psychologist
with whom the attending physician consults, shall:
  A.  be  employed by a developmental disabilities services office named
in section 13.17 of the mental hygiene law or employed by the office for
people with developmental disabilities to provide treatment and care  to
people with developmental disabilities, or
  B.  have  been  employed for a minimum of two years to render care and
service in a facility operated, licensed or authorized by the office [of
mental retardation and] FOR PEOPLE WITH developmental disabilities, or
  C. have been approved by the commissioner of [mental retardation  and]
developmental disabilities in accordance with regulations promulgated by
such  commissioner.  Such  regulations shall require that a physician or
licensed psychologist possess specialized training or three years  expe-
rience  in  treating  mental  retardation. A record of such consultation
shall be included in the [mentally retarded] person's medical record;
  (ii) if the person is in or was transferred from a residential facili-
ty operated, licensed or authorized by the office [of mental retardation
and] FOR PEOPLE WITH developmental  disabilities,  the  chief  executive
officer  of  the  agency or organization operating such facility and the
mental hygiene legal service; and
  (iii) if the person is not in and was  not  transferred  from  such  a
facility or program, the commissioner of [mental retardation and] devel-
opmental disabilities, or his or her designee.
  5.  Objection  to  health care decision. (a) Suspension. A health care
decision made pursuant to subdivision four  of  this  section  shall  be
suspended,  pending  judicial  review, except if the suspension would in
reasonable medical judgment be likely to result  in  the  death  of  the
[mentally retarded] person WITH A DEVELOPMENTAL DISABILITY, in the event
of an objection to that decision at any time by:
  (i)  the  [mentally retarded] person on whose behalf such decision was
made; or

S. 4983                             7

  (ii) a parent or adult sibling who either resides with  or  has  main-
tained  substantial  and continuous contact with the [mentally retarded]
person; or
  (iii)  the  attending  physician,  as  defined  in  subdivision two of
section twenty-nine hundred eighty of the public health law; or
  (iv) any other health care  practitioner  providing  services  to  the
[mentally  retarded]  person  WITH  A  DEVELOPMENTAL  DISABILITY, who is
licensed pursuant to article one hundred thirty-one, one  hundred  thir-
ty-one-B,  one hundred thirty-two, one hundred thirty-three, one hundred
thirty-six, one hundred thirty-nine, one hundred forty-one, one  hundred
forty-three,  one  hundred  forty-four,  one  hundred  fifty-three,  one
hundred fifty-four, one hundred fifty-six, one hundred fifty-nine or one
hundred sixty-four of the education law; or
  (v) the chief executive officer identified  in  subparagraph  (ii)  of
paragraph (e) of subdivision four of this section; or
  (vi) if the person is in or was transferred from a residential facili-
ty  or  program  operated, approved or licensed by the office [of mental
retardation and] FOR PEOPLE WITH developmental disabilities, the  mental
hygiene legal service; or
  (vii)  if  the  person  is  not in and was not transferred from such a
facility or program, the commissioner of [mental retardation and] devel-
opmental disabilities, or his or her designee.
  (b) Form of objection. Such objection shall occur orally or  in  writ-
ing.
  (c)  Notification.  In  the  event  of the suspension of a health care
decision pursuant to this subdivision, the objecting party shall prompt-
ly notify the guardian and the other parties identified in paragraph (a)
of this subdivision, and  the  attending  physician  shall  record  such
suspension  in  the  [mentally retarded person's] PERSON WITH A DEVELOP-
MENTAL DISABILITY'S medical chart.
  (d) Dispute mediation. In the event of an objection pursuant  to  this
subdivision,  at  the request of the objecting party or person or entity
authorized to act as a guardian under this section, except  a  surrogate
decision  making committee established pursuant to article eighty of the
mental hygiene law, such objection shall be referred to a dispute  medi-
ation  system, established pursuant to section two thousand nine hundred
seventy-two of the public health law or  similar  entity  for  mediating
disputes  in  a hospice, such as a patient's advocate's office, hospital
chaplain's office or ethics  committee,  as  described  in  writing  and
adopted  by  the  governing  authority  of such hospice, for non-binding
mediation. In the event that such  dispute  cannot  be  resolved  within
seventy-two  hours  or  no such mediation entity exists or is reasonably
available for mediation of a dispute, the  objection  shall  proceed  to
judicial review pursuant to this subdivision. The party requesting medi-
ation  shall  provide  notification  to those parties entitled to notice
pursuant to paragraph (a) of this subdivision.
  6. Special proceeding authorized. The guardian, the  attending  physi-
cian,  as  defined  in  subdivision  two  of section twenty-nine hundred
eighty of the public health law, the chief executive officer  identified
in  subparagraph  (ii)  of  paragraph  (e)  of  subdivision four of this
section, the mental hygiene legal service (if the person is  in  or  was
transferred from a residential facility or program operated, approved or
licensed  by  the  office  [of  mental  retardation and] FOR PEOPLE WITH
developmental disabilities) or the commissioner of  [mental  retardation
and] developmental disabilities or his or her designee (if the person is
not  in  and  was  not  transferred from such a facility or program) may

S. 4983                             8

commence a special proceeding in a court of competent jurisdiction  with
respect  to  any dispute arising under this section, including objecting
to the withdrawal or withholding of  life-sustaining  treatment  because
such  withdrawal  or  withholding is not in accord with the criteria set
forth in this section.
  7. Provider's obligations. (a) A health  care  provider  shall  comply
with the health care decisions made by a guardian in good faith pursuant
to  this  section, to the same extent as if such decisions had been made
by the [mentally retarded] person WITH A  DEVELOPMENTAL  DISABILITY,  if
such person had capacity.
  (b) Notwithstanding paragraph (a) of this subdivision, nothing in this
section  shall  be  construed  to  require a private hospital to honor a
guardian's health care decision that the hospital would not honor if the
decision had been made by the [mentally retarded] person WITH A DEVELOP-
MENTAL DISABILITY, if such person had capacity, because the decision  is
contrary  to a formally adopted written policy of the hospital expressly
based on religious beliefs or sincerely held moral  convictions  central
to  the  hospital's  operating  principles,  and  the  hospital would be
permitted by law to refuse to honor the decision if made by such person,
provided:
  (i) the hospital has informed the guardian of such policy prior to  or
upon admission, if reasonably possible; and
  (ii) the [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY is
transferred  promptly  to another hospital that is reasonably accessible
under the circumstances and is willing to honor the guardian's decision.
If the guardian is unable or unwilling to arrange such a  transfer,  the
hospital's  refusal  to honor the decision of the guardian shall consti-
tute an objection pursuant to subdivision five of this section.
  (c) Notwithstanding paragraph (a) of this subdivision, nothing in this
section shall be construed to require an individual health care provider
to honor a guardian's health care decision that the individual would not
honor if the decision had been made by the  [mentally  retarded]  person
WITH  A  DEVELOPMENTAL  DISABILITY, if such person had capacity, because
the decision is  contrary  to  the  individual's  religious  beliefs  or
sincerely  held  moral  convictions, provided the individual health care
provider promptly informs the guardian and the facility, if any, of  his
or  her  refusal  to  honor  the guardian's decision. In such event, the
facility  shall  promptly  transfer  responsibility  for  the  [mentally
retarded]  person  WITH A DEVELOPMENTAL DISABILITY to another individual
health care provider willing to honor the guardian's decision. The indi-
vidual health care provider shall cooperate in facilitating such  trans-
fer of the patient.
  (d)  Notwithstanding  the  provisions  of  any other paragraph of this
subdivision, if a guardian  directs  the  provision  of  life-sustaining
treatment,  the  denial of which in reasonable medical judgment would be
likely to result in the death of the [mentally retarded] person  WITH  A
DEVELOPMENTAL  DISABILITY, a hospital or individual health care provider
that does not wish to provide such treatment  shall  nonetheless  comply
with  the  guardian's  decision  pending either transfer of the mentally
retarded person to a willing hospital or individual health care  provid-
er, or judicial review.
  (e)  Nothing in this section shall affect or diminish the authority of
a surrogate decision-making panel to render  decisions  regarding  major
medical treatment pursuant to article eighty of the mental hygiene law.
  8. Immunity. (a) Provider immunity. No health care provider or employ-
ee  thereof  shall  be  subjected  to criminal or civil liability, or be

S. 4983                             9

deemed to have engaged in unprofessional conduct, for  honoring  reason-
ably  and  in  good  faith  a health care decision by a guardian, or for
other actions taken reasonably  and  in  good  faith  pursuant  to  this
section.
  (b)  Guardian  immunity. No guardian shall be subjected to criminal or
civil liability for making a health care decision reasonably and in good
faith pursuant to this section.
  S 4. Section 1751 of the surrogate's court procedure act, as added  by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1751. Petition for appointment; by whom made
  (A)  A  petition  for  the appointment of a guardian [of the person or
property, or both,] of a [mentally retarded or developmentally disabled]
person WITH A DEVELOPMENTAL DISABILITY PURSUANT TO THIS ARTICLE  may  be
made  by  THE PERSON WITH A DEVELOPMENTAL DISABILITY WHEN SUCH PERSON IS
EIGHTEEN YEARS OF AGE OR OLDER, a parent, SPOUSE, SIBLING,  ADULT  CHILD
OR  any OTHER interested person eighteen years of age or older on behalf
of the [mentally retarded or developmentally  disabled]  person  WITH  A
DEVELOPMENTAL  DISABILITY including a corporation authorized to serve as
a guardian as provided for by this article[, or by the mentally retarded
or developmentally disabled person when such person is eighteen years of
age or older].
  (B) A PERSON WITH A DEVELOPMENTAL DISABILITY MAY KNOWINGLY AND  VOLUN-
TARILY  CONSENT  TO THE APPOINTMENT OF A GUARDIAN PURSUANT TO THIS ARTI-
CLE.
  S 5. The surrogate's court procedure act is amended by  adding  a  new
section 1751-a to read as follows:
S 1751-A. PETITION FOR APPOINTMENT; WHERE MADE (VENUE)
  1. A PROCEEDING UNDER THIS ARTICLE SHALL BE BROUGHT IN THE SURROGATE'S
COURT  WITHIN  THE COUNTY IN WHICH THE PERSON WITH A DEVELOPMENTAL DISA-
BILITY RESIDES, OR IS PHYSICALLY PRESENT AT THE TIME THE  PROCEEDING  IS
COMMENCED.  IF  THE PERSON WITH A DEVELOPMENTAL DISABILITY ALLEGED TO BE
IN NEED OF A GUARDIAN IS BEING CARED FOR AS A RESIDENT  IN  A  FACILITY,
THE  RESIDENCE  OF THAT PERSON SHALL BE DEEMED TO BE IN THE COUNTY WHERE
THE FACILITY IS LOCATED AND THE PROCEEDING  SHALL  BE  BROUGHT  IN  THAT
COUNTY,  SUBJECT  TO  APPLICATION BY AN INTERESTED PARTY FOR A CHANGE IN
VENUE TO ANOTHER COUNTY BECAUSE OF THE INCONVENIENCE OF THE  PARTIES  OR
WITNESSES  OR  THE  CONDITION  OF  THE PERSON ALLEGED TO BE IN NEED OF A
GUARDIAN.
  2. AFTER THE APPOINTMENT OF A GUARDIAN, ANY  PROCEEDING  TO  MODIFY  A
PRIOR  ORDER SHALL BE BROUGHT IN THE SURROGATE'S COURT WHICH GRANTED THE
PRIOR ORDER, UNLESS AT THE TIME OF THE APPLICATION TO MODIFY  THE  ORDER
THE  PERSON  WITH A DEVELOPMENTAL DISABILITY RESIDES ELSEWHERE, IN WHICH
CASE THE PROCEEDING SHALL BE BROUGHT IN THE COUNTY WHERE THE PERSON WITH
A DEVELOPMENTAL DISABILITY RESIDES, WITHOUT THE NEED  FOR  A  MOTION  TO
TRANSFER VENUE.
  S  6. Section 1752 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1752. Petition for appointment; contents
  The petition for the appointment of a guardian shall be filed with the
court on forms to be prescribed by the state chief administrator of  the
courts. Such petition for a guardian of a [mentally retarded or develop-
mentally disabled] person WITH A DEVELOPMENTAL DISABILITY shall include,
but not be limited to, the following information:
  1.  the  full  name,  date  of  birth  and  residence of the [mentally
retarded or developmentally disabled] person WITH A DEVELOPMENTAL  DISA-
BILITY;

S. 4983                            10

  2.  the  name,  age, address and relationship or interest of the peti-
tioner to the [mentally retarded  or  developmentally  disabled]  person
WITH A DEVELOPMENTAL DISABILITY;
  3. the names AND ADDRESSES, IF KNOWN, of the father, the mother, ADULT
children,  adult  siblings  [if eighteen years of age or older,] AND the
spouse [and primary care physician if  other  than  a  physician  having
submitted  a  certification with the petition, if any,] of the [mentally
retarded or developmentally disabled] person WITH A DEVELOPMENTAL  DISA-
BILITY  and  whether  or  not  they  are  living,  and  if living, their
addresses and the names and addresses of  the  nearest  distributees  of
full age who are domiciliaries, if both parents are dead;
  4. the name and address of the person [with whom the mentally retarded
or  developmentally disabled] CARING FOR THE person WITH A DEVELOPMENTAL
DISABILITY, OR WITH WHOM THE  PERSON  WITH  A  DEVELOPMENTAL  DISABILITY
resides if other than the parents or spouse;
  5.  THE  NAME  AND  ADDRESS OF ANY PERSON WITH SIGNIFICANT AND ONGOING
INVOLVEMENT IN THE LIFE OF THE PERSON WITH A DEVELOPMENTAL DISABILITY SO
AS TO HAVE SUFFICIENT KNOWLEDGE OF THEIR  NEEDS,  IF  SUCH  PERSONS  ARE
KNOWN TO THE PETITIONER;
  6.  the  name,  age,  address, education and other qualifications, and
consent of the proposed guardian, standby  and  alternate  guardian,  if
other  than  the parent, spouse, adult child if eighteen years of age or
older or adult sibling if eighteen years of age or older,  and  if  such
parent,  spouse  or adult child be living, why any of them should not be
appointed guardian;
  [6.] 7. the estimated value of real  and  personal  property  and  the
annual  income  therefrom  and  any  other income including governmental
entitlements to which the [mentally retarded  or  developmentally  disa-
bled] person WITH A DEVELOPMENTAL DISABILITY is entitled; and
  [7.  any  circumstances which the court should consider in determining
whether it is in the best interests of the mentally retarded or develop-
mentally disabled person not be be present at the hearing if conducted.]
  8. AN ENUMERATION OF THE SPECIFIC DOMAINS IN WHICH THE PERSON  WITH  A
DEVELOPMENTAL  DISABILITY  IS  ALLEGED  TO BE IN NEED OF A GUARDIAN OR A
STATEMENT THAT FULL GUARDIANSHIP IS  SOUGHT.  SPECIFIC  DOMAINS  MAY  BE
INCLUDED WHICH MAY INCLUDE:
  (I)  CONSENT  TO OR REFUSAL TO CONSENT TO HEALTH CARE OR OTHER PROFES-
SIONAL CARE;
  (II) MANAGEMENT OF MONEY OR OTHER INCOME, ASSETS OR PROPERTY;
  (III) ACCESS TO CONFIDENTIAL AND OTHER SENSITIVE INFORMATION;
  (IV) CHOICES INVOLVING EDUCATION, TRAINING, EMPLOYMENT,  SUPPORTS  AND
SERVICES;
  (V) REQUESTING ADVOCACY, LEGAL OR OTHER PROFESSIONAL SERVICES;
  (VI) CHOICE OF RESIDENCE AND SHARED LIVING ARRANGEMENTS;
  (VII) CHOICES AS TO SOCIAL AND RECREATIONAL ACTIVITY;
  (VIII) DECISIONS CONCERNING TRAVEL; AND
  (IX)  APPLICATION  FOR  GOVERNMENT-SPONSORED  OR PRIVATE INSURANCE AND
BENEFITS.
  9. A STATEMENT OF THE ALTERNATIVES TO GUARDIANSHIP CONSIDERED, INCLUD-
ING BUT NOT LIMITED TO THE EXECUTION OF A HEALTH CARE  PROXY,  POWER  OF
ATTORNEY,  REPRESENTATIVE  PAYEE,  SERVICE  COORDINATION,  AND/OR  OTHER
SOCIAL SUPPORT SERVICES, OTHER AVAILABLE SUPPORTED  OR  SHARED  DECISION
MAKING,  AND  SURROGATE  DECISION-MAKING  COMMITTEE, AND REASONS FOR THE
DECLINATION OF SUCH ALTERNATIVES.
  S 7. Section 1753 of the surrogate's court procedure act, as added  by
chapter 675 of the laws of 1989, is amended to read as follows:

S. 4983                            11

S 1753. Persons to be served AND NOTICED
  1.  Upon  [presentation]  FILING  of the petition, process shall issue
to[:
  (a) the parent or parents, adult children, if the petitioner is  other
than a parent, adult siblings, if the petitioner is other than a parent,
and  if  the  mentally  retarded  or  developmentally disabled person is
married, to the spouse, if their residences are known;
  (b) the person having care and custody of  the  mentally  retarded  or
developmentally  disabled  person,  or  with whom such person resides if
other than the parents or spouse; and
  (c) the mentally retarded or developmentally disabled person if  four-
teen years of age or older for whom an application has been made in such
person's behalf.
  2. Upon presentation of the petition, notice of such petition shall be
served by certified mail to:
  (a)  the adult siblings if the petitioner is a parent, and adult chil-
dren if the petitioner is a parent;
  (b) the mental hygiene legal service in the judicial department  where
the  facility,  as  defined  in  subdivision (a) of section 47.01 of the
mental hygiene law, is located if  the  mentally  retarded  or  develop-
mentally disabled person resides in such a facility;
  (c)  in all cases, to the director in charge of a facility licensed or
operated by an agency of the state of New York, if the mentally retarded
or developmentally disabled person resides in such facility;
  (d) one other person if designated in writing by the mentally retarded
or developmentally disabled person; and
  (e) such other persons as the court may deem proper.] THE PERSON  WITH
A  DEVELOPMENTAL DISABILITY, IF PETITIONER IS OTHER THAN THE PERSON WITH
A DEVELOPMENTAL DISABILITY ALLEGED TO BE IN NEED OF A GUARDIAN.
  2. UPON FILING OF THE PETITION, NOTICE OF THE PETITION SHALL  BE  SENT
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED TO THE LAST KNOWN ADDRESS OF
THE:
  (A)  PARENTS, SPOUSE, ADULT CHILDREN, AND ADULT SIBLINGS OF THE PERSON
ALLEGED TO BE IN NEED OF THE GUARDIAN;
  (B) INDIVIDUALS LISTED IN THE PETITION PURSUANT TO  SECTION  SEVENTEEN
HUNDRED FIFTY-TWO OF THIS ARTICLE AND SUBDIVISIONS FOUR AND FIVE OF THIS
SECTION;
  (C)  MENTAL HYGIENE LEGAL SERVICE IN THE JUDICIAL DEPARTMENT WHERE THE
PERSON WITH A DEVELOPMENTAL DISABILITY RESIDES;
  (D) THE DIRECTOR IN CHARGE OF A FACILITY LICENSED OR  OPERATED  BY  AN
AGENCY  OF  THE  STATE  OF  NEW YORK, IF THE PERSON WITH A DEVELOPMENTAL
DISABILITY RESIDES IN SUCH FACILITY;
  (E) ANY OTHER PERSON IF DESIGNATED IN WRITING BY  THE  PERSON  WITH  A
DEVELOPMENTAL DISABILITY; AND
  (F) SUCH OTHER PERSONS AS THE COURT MAY DEEM PROPER.
  3. WITHIN FIVE DAYS OF THE FILING OF THE PETITION, A FULL COPY OF SAID
PETITION  SHALL  BE SERVED BY CERTIFIED MAIL TO THE MENTAL HYGIENE LEGAL
SERVICE IN THE JUDICIAL DEPARTMENT IN WHICH THE PETITION  WAS  FILED.  A
COPY OF PROOF OF MAILING SHALL BE THEREAFTER FILED WITH THE COURT.
  4.  FOR  PETITIONS  TO  MODIFY  AN  EXISTING  GUARDIANSHIP PURSUANT TO
SECTION SEVENTEEN HUNDRED FIFTY-FIVE OF THIS ARTICLE AND/OR TO APPOINT A
STANDBY GUARDIAN PURSUANT TO SUBDIVISION SEVENTEEN  HUNDRED  FIFTY-SEVEN
OF  THIS  ARTICLE, WRITTEN NOTICE MUST BE GIVEN TO ALL STANDBY GUARDIANS
CURRENTLY IN SUCCESSION FOR A PERSON WITH A DEVELOPMENTAL DISABILITY WHO
IS THE SUBJECT OF THE PETITION.

S. 4983                            12

  5. No process or notice shall be necessary to [a parent, adult  child,
adult  sibling,  or  spouse  of the mentally retarded or developmentally
disabled person who has been declared by a court as  being  incompetent.
In  addition, no process or notice shall be necessary to a spouse who is
divorced  from the mentally retarded or developmentally disabled person,
and to a parent, adult child, adult sibling when it shall appear to  the
satisfaction of the court that such person or persons have abandoned the
mentally retarded or developmentally disabled person] ANY INDIVIDUAL WHO
CANNOT, AFTER DUE DILIGENCE, REASONABLY BE LOCATED. THE PETITIONER SHALL
SUBMIT AN AFFIDAVIT TO SUCH EFFECT.
  S  8. Section 1754 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1754. [Hearing and trial] PROCEEDINGS UPON PETITION
  1. Upon a petition for the appointment of a guardian  of  a  [mentally
retarded  or developmentally disabled] person WITH A DEVELOPMENTAL DISA-
BILITY eighteen years of age or older, the court shall [conduct a  hear-
ing  at  which such person shall have the right to jury trial. The right
to a jury trial shall be deemed waived  by  failure  to  make  a  demand
therefor.  The  court  may in its discretion dispense with a hearing for
the appointment of a guardian, and may in its discretion appoint a guar-
dian ad litem, or the mental hygiene legal service if such person  is  a
resident  of  a mental hygiene facility as defined in subdivision (a) of
section 47.01 of the  mental  hygiene  law,  to  recommend  whether  the
appointment  of a guardian as proposed in the application is in the best
interest of the mentally retarded or  developmentally  disabled  person,
provided however, that such application has been made by:
  (a) both parents or the survivor; or
  (b) one parent and the consent of the other parent; or
  (c)  any  interested party and the consent of each parent.], NOT LATER
THAN FORTY-FIVE DAYS FOLLOWING THE FILING OF PROOF OF MAILING  UPON  THE
MENTAL HYGIENE LEGAL SERVICE, SCHEDULE AN APPEARANCE IN THE MATTER.
  (A)  THE  MENTAL  HYGIENE  LEGAL  SERVICE  SHALL ASCERTAIN WHETHER THE
PERSON WITH A DEVELOPMENTAL DISABILITY ALLEGED TO NEED  A  GUARDIAN  HAS
ANY  OBJECTION  TO  THE  RELIEF  SOUGHT  IN THE PETITION AND WHETHER THE
SERVICE IS ABLE TO REPRESENT THE INTERESTS OF THE PERSON IN THE PROCEED-
ING.
  (B) IF THE SERVICE REPORTS THAT THE PERSON WITH A DEVELOPMENTAL  DISA-
BILITY  ALLEGED  TO  NEED A GUARDIAN OBJECTS TO THE RELIEF SOUGHT IN THE
PETITION, THE COURT SHALL APPOINT THE SERVICE AS COUNSEL FOR THE PERSON.
IF THE SERVICE IS NOT AVAILABLE TO SERVE AS THE PERSON'S COUNSEL AND THE
PERSON DOES NOT OTHERWISE HAVE COUNSEL, THE COURT SHALL APPOINT  COUNSEL
FOR THE PERSON FROM AMONG ATTORNEYS ELIGIBLE FOR SUCH APPOINTMENT PURSU-
ANT TO SECTION THIRTY-FIVE OF THE JUDICIARY LAW.
  (C)  IF THE SERVICE REPORTS THAT THE PERSON WITH A DEVELOPMENTAL DISA-
BILITY ALLEGED TO NEED A GUARDIAN DOES NOT OBJECT TO  RELIEF  SOUGHT  IN
THE PETITION, THE PERSON'S INTERESTS SHALL CONTINUE TO BE REPRESENTED BY
THE  SERVICE, IF AVAILABLE, AND THE SERVICE SHALL CONDUCT AN EXAMINATION
INTO THE ALLEGATIONS OF FACT CONTAINED IN THE PETITION AND FILE WITH THE
COURT AND SERVE NO LATER THAN TEN DAYS PRIOR TO THE APPEARANCE  DATE  AN
ANSWER  CONFIRMING OR DENYING THE ALLEGATIONS IN THE PETITION AND REPORT
AS TO WHETHER THE SERVICE FINDS GROUNDS TO OBJECT TO THE  RELIEF  SOUGHT
IN  THE  PETITION.    THE  SERVICE  WILL OTHERWISE PERFORM ITS FUNCTIONS
CONSISTENT WITH UNIFORM REGULATIONS PROMULGATED BY THE  APPELLATE  DIVI-
SION OF THE SUPREME COURT.
  (D)  IF  A  PERSON  WITH  A DEVELOPMENTAL DISABILITY ALLEGED TO NEED A
GUARDIAN WHO DOES NOT OBJECT DOES NOT OTHERWISE APPEAR BY THE SERVICE OR

S. 4983                            13

OTHER COUNSEL, THE COURT SHALL APPOINT A GUARDIAN AD LITEM  PURSUANT  TO
THIS SECTION AND SECTION FOUR HUNDRED THREE OF THIS ACT. ANY GUARDIAN AD
LITEM  APPOINTED PURSUANT TO THIS SECTION SHALL CONDUCT AN INVESTIGATION
INTO THE ALLEGATIONS OF FACT CONTAINED IN THE PETITION AND FILE WITH THE
COURT  AND  SERVE NO LATER THAN TEN DAYS PRIOR TO THE APPEARANCE DATE, A
REPORT OF ITS FINDINGS CONFIRMING OR DISCONFIRMING SAID ALLEGATIONS, AND
IF APPROPRIATE AND UPON CONSENT OF THE PERSON WITH A DEVELOPMENTAL DISA-
BILITY NOMINATE A PERSON OR ENTITY OF THE RESPONDENT'S CHOOSING TO SERVE
AS GUARDIAN, AS WELL AS ANY OTHER MATTER WHICH COULD ASSIST THE  COURT'S
CONSIDERATION  OF  THE  MATTER,  AND SERVE A COPY OF THE REPORT UPON THE
PETITIONER.
  (E) THE SERVICE, ANY OTHER COUNSEL FOR THE PERSON WITH A DEVELOPMENTAL
DISABILITY ALLEGED TO NEED A GUARDIAN, OR  THE  GUARDIAN  AD  LITEM  MAY
APPLY  TO  THE  COURT  FOR  PERMISSION  TO  INSPECT THE CLINICAL RECORDS
PERTAINING TO THE PERSON WITH A DEVELOPMENTAL DISABILITY ALLEGED TO NEED
A GUARDIAN IN ACCORDANCE WITH STATE AND FEDERAL LAWS. THE  SERVICE,  ANY
OTHER  COUNSEL  FOR  THE  PERSON WITH A DEVELOPMENTAL DISABILITY AND THE
GUARDIAN AD LITEM, IF ANY, SHALL BE  AFFORDED  ACCESS  TO  THE  PERSON'S
CLINICAL RECORDS WITHOUT A COURT ORDER TO THE EXTENT THAT SUCH ACCESS IS
OTHERWISE AUTHORIZED BY STATE AND FEDERAL LAWS.
  (F) THE SERVICE, ANY OTHER COUNSEL FOR THE PERSON WITH A DEVELOPMENTAL
DISABILITY  ALLEGED  TO  NEED  A GUARDIAN, AND THE GUARDIAN AD LITEM, IF
ANY, MAY REQUEST THE COURT FOR FURTHER EVALUATION OF  THE  PERSON  BY  A
PHYSICIAN,  PSYCHIATRIST  OR  CERTIFIED  PSYCHOLOGIST. IN THE EVENT THAT
FURTHER EVALUATIONS  ARE  REQUIRED,  THE  COURT  MAY  GRANT  APPROPRIATE
ADJOURNMENTS  OF THE INITIAL APPEARANCE DATE AND MAY DIRECT, IN THE CASE
OF A PERSON DETERMINED TO BE INDIGENT, THAT ANY FURTHER COURT AUTHORIZED
EVALUATIONS BE PAID FOR OUT OF FUNDS AVAILABLE PURSUANT TO SECTION THIR-
TY-FIVE OF THE JUDICIARY LAW.
  2. [When it shall appear to the  satisfaction  of  the  court  that  a
parent  or  parents not joining in or consenting to the application have
abandoned the mentally retarded or developmentally  disabled  person  or
are  not  otherwise  required  to receive notice, the court may dispense
with such parent's consent in determining the need to conduct a  hearing
for  a person under the age of eighteen. However, if the consent of both
parents or the surviving parent is dispensed with by the court, a  hear-
ing  shall  be  held  on  the application.] AT THE FIRST APPEARANCE, THE
RESPONDENT SHALL BE PRESENT UNLESS SUCH PRESENCE IS EXCUSED BY THE COURT
UPON RECOMMENDATION OF THE SERVICE, RESPONDENT'S COUNSEL, OR THE GUARDI-
AN AD LITEM IF THE RESPONDENT DOES  NOT  HAVE  COUNSEL.  THE  PETITIONER
SHALL ALSO BE PRESENT AND MAY BE REPRESENTED BY COUNSEL. ANY OTHER PARTY
REQUIRED TO BE SERVED OR NOTICED WITH PROCESS IN THE MATTER MAY BE PRES-
ENT.
  (A)  PRIOR TO SUCH APPEARANCE, THE PETITIONER, EITHER PERSONALLY OR BY
COUNSEL, MAY CONFER WITH THE SERVICE, RESPONDENT'S COUNSEL AND THE GUAR-
DIAN AD LITEM IF RESPONDENT DOES NOT HAVE COUNSEL AND AGREE TO AMEND ANY
PART OF ITS PETITION AND ALLEGATIONS OF FACT THEREIN. ANY  SUCH  AMENDED
PETITION  SHALL  BE  FILED WITH THE COURT PRIOR TO THE DATE OF THE FIRST
APPEARANCE.
  (B) AT THE FIRST APPEARANCE, THE COURT SHALL EXAMINE THE ANSWER OF THE
SERVICE, RESPONDENT'S COUNSEL, OR THE REPORT OF THE GUARDIAN  AD  LITEM,
IF  ANY,  AND MAY HEAR FROM THE PETITIONER AND THE SERVICE, RESPONDENT'S
COUNSEL AND THE GUARDIAN AD LITEM, IF ANY, ON THE CONTENTS OF  THE  SAID
ANSWER OR REPORT AND ANY AMENDED PETITION FILED.
  (C)  THE  COURT  MAY  DIRECT  THAT AN ORDER AND DECREE OF GUARDIANSHIP
ISSUE, INCLUDING THE AUTHORITY OF THE GUARDIAN TO ACT ON BEHALF  OF  THE

S. 4983                            14

RESPONDENT  WITH RESPECT TO ANY MATTER IN WHICH PETITIONER, THE SERVICE,
RESPONDENT'S COUNSEL, AND THE GUARDIAN AD LITEM, IF ANY,  ALL  AGREE  ON
THE  RECORD  THAT  THE RESPONDENT REQUIRES THE REQUESTED RELIEF AND DOES
NOT OBJECT TO SUCH RELIEF.
  (D) IN THE EVENT THAT THE PETITION CANNOT BE DISPOSED OF BY THE AGREE-
MENT  OF  THE  COURT  AND  ALL OF THE PARTIES, THE COURT SHALL FORTHWITH
SCHEDULE A HEARING IN THE MATTER AT WHICH THE RESPONDENT SHALL BE  PRES-
ENT  UNLESS  IT SHALL APPEAR TO THE COURT THAT THE RESPONDENT'S PRESENCE
IS MEDICALLY CONTRAINDICATED, IN THAT IT WOULD BE LIKELY TO  CAUSE  HARM
TO  THE  RESPONDENT,  OR  UNDER SUCH OTHER CIRCUMSTANCES RAISED BY OR ON
BEHALF OF THE RESPONDENT AS THE COURT AGREES THAT THE RESPONDENT'S PRES-
ENCE WOULD NOT BE IN HIS OR HER BEST INTERESTS,  PROVIDED  HOWEVER  THAT
THE  RESPONDENT'S PRESENCE SHALL NOT BE WAIVED OVER THE OBJECTION OF THE
SERVICE, RESPONDENT'S COUNSEL, OR A GUARDIAN AD LITEM, IF ANY, IN  WHICH
CASE  THE  COURT SHALL CONDUCT THE HEARING WHERE THE RESPONDENT RESIDES,
IF THE COURT IS SATISFIED THAT THE RESPONDENT'S PRESENCE WOULD BE  HARM-
FUL TO THE RESPONDENT.
  3.  [If  a  hearing  is  conducted,  the mentally retarded or develop-
mentally disabled person shall be present unless it shall appear to  the
satisfaction  of the court on the certification of the certifying physi-
cian that the mentally retarded or developmentally  disabled  person  is
medically  incapable  of  being present to the extent that attendance is
likely to result in physical harm to such mentally retarded or  develop-
mentally  disabled  person,  or under such other circumstances which the
court finds would not be in the best interest of the  mentally  retarded
or  developmentally disabled person.] IF THERE ARE ANY OBJECTIONS TO THE
RELIEF SOUGHT BY THE PETITIONER, THE RESPONDENT HAS A RIGHT TO A HEARING
OR JURY TRIAL, IF DEMANDED BY THE RESPONDENT. IN ADDITION, THE COURT MAY
CONDUCT A HEARING AT THE REQUEST OF ANY PARTY OR ON ITS OWN  MOTION.  AT
ANY  SUCH  HEARING  OR TRIAL, THE PETITIONER MUST ESTABLISH BY CLEAR AND
CONVINCING EVIDENCE ANY FACTS ALLEGED IN THE PETITION OR  AMENDED  PETI-
TION WHICH ARE CONTROVERTED AND ARE RELEVANT TO WHETHER RESPONDENT HAS A
DEVELOPMENTAL  DISABILITY,  AND IF SO, WHETHER APPOINTMENT OF A GUARDIAN
IS REQUIRED AND THE SCOPE OF THE GUARDIAN'S  POWERS.  ANY  OTHER  MATTER
MUST  BE  PROVEN BY THE FAIR PREPONDERANCE OF THE EVIDENCE PRESENTED AND
ADMITTED.
  4. [If either a hearing is dispensed with pursuant to subdivisions one
and two of this section or  the  mentally  retarded  or  developmentally
disabled  person  is  not present at the hearing pursuant to subdivision
three of this section, the court may appoint a guardian ad litem  if  no
mental  hygiene legal service attorney is authorized to act on behalf of
the mentally retarded or developmentally disabled person.  The  guardian
ad  litem  or mental hygiene legal service attorney, if appointed, shall
personally interview the mentally retarded or  developmentally  disabled
person and shall submit a written report to the court.
  5.  If,  upon  conclusion  of such hearing or jury trial or if none be
held upon the application, the court is satisfied that the  best  inter-
ests of the mentally retarded or developmentally disabled person will be
promoted  by the appointment of a guardian of the person or property, or
both, it shall make a decree naming such person or persons to  serve  as
such  guardians.]  IF, UPON CONCLUSION OF SUCH HEARING OR JURY TRIAL, IF
ANY, THE COURT IS SATISFIED THAT  THE  RESPONDENT  HAS  A  DEVELOPMENTAL
DISABILITY  AND  REQUIRES THE APPOINTMENT OF A GUARDIAN OF THE PERSON OR
PROPERTY, OR BOTH, IT SHALL MAKE A DECREE NAMING SUCH PERSON OR  PERSONS
TO SERVE AS SUCH GUARDIANS. THE POWERS OF THE GUARDIAN SHALL BE TAILORED
TO THE NEEDS OF THE RESPONDENT.

S. 4983                            15

  S  9.   The surrogate's court procedure act is amended by adding a new
section 1754-a to read as follows:
S 1754-A. DECISION MAKING STANDARD
  DECISIONS  MADE  BY  A  GUARDIAN ON BEHALF OF A PERSON WITH A DEVELOP-
MENTAL DISABILITY SHALL BE MADE IN ACCORDANCE WITH THE FOLLOWING  STAND-
ARDS.
  1.  A  GUARDIAN  SHALL  EXERCISE AUTHORITY ONLY AS NECESSITATED BY THE
PERSON WITH A DEVELOPMENTAL DISABILITY'S LIMITATIONS, AND, TO THE EXTENT
POSSIBLE, SHALL ENCOURAGE THE PERSON WITH A DEVELOPMENTAL DISABILITY  TO
PARTICIPATE IN DECISIONS AND TO ACT ON HIS OR HER OWN BEHALF.
  2. A GUARDIAN SHALL CONSIDER THE EXPRESSED DESIRES AND PERSONAL VALUES
OF  THE PERSON WITH A DEVELOPMENTAL DISABILITY TO THE EXTENT KNOWN, WHEN
MAKING DECISIONS AND SHALL CONSULT WITH THE PERSON WITH A  DEVELOPMENTAL
DISABILITY WHENEVER MEANINGFUL COMMUNICATION IS POSSIBLE.
  3. IF THE PERSON'S WISHES ARE UNKNOWN AND REMAIN UNKNOWN AFTER REASON-
ABLE EFFORTS TO DISCERN THEM, THE DECISION SHALL BE MADE ON THE BASIS OF
THE  BEST  INTERESTS  OF  THE  PERSON WITH A DEVELOPMENTAL DISABILITY AS
DETERMINED BY THE GUARDIAN. IN DETERMINING THE  BEST  INTERESTS  OF  THE
PERSON  WITH  A  DEVELOPMENTAL  DISABILITY, THE GUARDIAN SHALL WEIGH THE
REASON FOR AND NATURE OF THE PROPOSED ACTION; THE BENEFIT  OR  NECESSITY
OF THE ACTION, THE POSSIBLE RISKS AND OTHER CONSEQUENCES OF THE PROPOSED
ACTION; AND ANY AVAILABLE ALTERNATIVES AND THEIR RISKS, CONSEQUENCES AND
BENEFITS.    THE GUARDIAN SHALL TAKE INTO ACCOUNT ANY OTHER INFORMATION,
INCLUDING THE VIEWS OF FAMILY AND FRIENDS, THAT  THE  GUARDIAN  BELIEVES
THE PERSON WITH A DEVELOPMENTAL DISABILITY WOULD HAVE CONSIDERED IF ABLE
TO ACT FOR HERSELF OR HIMSELF.
  S 10. Section 1755 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1755. Modification order
  Any  [mentally  retarded  or  developmentally  disabled] person WITH A
DEVELOPMENTAL DISABILITY eighteen years of age or older, or  any  person
on  behalf of any [mentally retarded or developmentally disabled] person
WITH A DEVELOPMENTAL DISABILITY for whom a guardian has been  appointed,
may apply to the court [having jurisdiction over the guardianship order]
PURSUANT  TO  SECTION  1751-A OF THIS ARTICLE requesting modification of
such order in order to protect the [mentally retarded or developmentally
disabled person's] PERSON WITH A  DEVELOPMENTAL  DISABILITY'S  financial
situation  and/or  his  or  her  personal interests. The court may, upon
receipt of any such request to modify the guardianship order, appoint  a
guardian  ad  litem. The court shall so modify the guardianship order if
in its judgment the interests of the guardian are adverse  to  those  of
the [mentally retarded or developmentally disabled] person WITH A DEVEL-
OPMENTAL  DISABILITY  or if the interests of justice will be best served
including, but not limited to, facts showing the necessity for  protect-
ing the personal and/or financial interests of the [mentally retarded or
developmentally disabled] person WITH A DEVELOPMENTAL DISABILITY.
  S 11. Section 1756 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S  1756. Limited [guardian of the property] PURPOSE AND/OR LIMITED DURA-
          TION GUARDIANSHIP
  1. When it shall appear to the satisfaction of  the  court  that  such
[mentally  retarded  or developmentally disabled] person WITH A DEVELOP-
MENTAL DISABILITY for whom an application for guardianship  is  made  is
eighteen  years of age or older and is wholly or substantially self-sup-
porting by means of his or her wages or earnings  from  employment,  the
court  is  authorized and empowered to appoint a limited guardian of the

S. 4983                            16

property of such [mentally retarded or developmentally disabled]  person
WITH  A DEVELOPMENTAL DISABILITY who shall receive, manage, disburse and
account for only such property of said [mentally  retarded  or  develop-
mentally  disabled]  person  WITH A DEVELOPMENTAL DISABILITY as shall be
received from other than the wages or earnings of said person.
  The [mentally retarded or  developmentally  disabled]  person  WITH  A
DEVELOPMENTAL DISABILITY for whom a limited guardian of the property has
been  appointed  shall  have the right to receive and expend any and all
wages or other earnings of his or her  employment  and  shall  have  the
power  to  contract  or  legally bind himself or herself for such sum of
money not exceeding one month's wages or earnings from  such  employment
or  three hundred dollars, whichever is greater, or as otherwise author-
ized by the court.
  2.  WHEN IT SHALL APPEAR TO THE SATISFACTION OF THE COURT, EITHER UPON
A PETITION FOR GUARDIANSHIP FILED AS PERMITTED BY SECTIONS 1751 AND 1752
OF THIS ARTICLE OR UPON A PETITION FILED PURSUANT TO THIS SECTION  IN  A
SIMPLIFIED  FORMAT  TO  BE  ESTABLISHED  BY THE OFFICE OF COURT ADMINIS-
TRATION IN CONSULTATION WITH THE OFFICE FOR  PEOPLE  WITH  DEVELOPMENTAL
DISABILITIES  AND  OTHER  INTERESTED  STAKEHOLDERS, THAT A PERSON WITH A
DEVELOPMENTAL DISABILITY NEEDS THE  ASSISTANCE  OF  A  GUARDIAN  OF  THE
PERSON  AND/OR  PROPERTY  FOR THE PURPOSE OF MAKING A SINGLE DECISION OR
FOR A BRIEF STATED PERIOD OF TRANSITION IN SUCH PERSON'S LIFE, THE COURT
MAY APPOINT A LIMITED-PURPOSE GUARDIAN OF THE PERSON AND/OR PROPERTY  TO
EFFECTUATE  SUCH  A  DECISION  OR  TRANSITION.  IN  ANY  SUCH  CASE, THE
PROVISIONS OF SECTION 1754 SHALL APPLY, EXCEPT THAT THE PERIOD  FOR  THE
RENDERING  OF  A  REPORT  BY  THE  MENTAL HYGIENE LEGAL SERVICE OR OTHER
RESPONDENT'S COUNSEL MAY BE SHORTENED AS MAY BE REASONABLY NECESSARY  TO
MEET  THE  NEEDS OF THE RESPONDENT UNDER THE CIRCUMSTANCES PRESENTED. AN
ORDER APPOINTING AND EMPOWERING SUCH A LIMITED-PURPOSE GUARDIAN  OF  THE
PERSON  AND/OR  PROPERTY SHALL STATE SPECIFICALLY THE DURATION AND SCOPE
OF SUCH GUARDIAN'S AUTHORITY.
  S 12. Section 1757 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, the section heading as amended by chap-
ter 290 of the laws of 1992, subdivision 2 as amended by chapter 260  of
the  laws  of 2009, subdivision 3 as added by chapter 294 of the laws of
2012, is amended to read as follows:
S 1757. Standby guardian of  a  [mentally  retarded  or  developmentally
          disabled] person WITH A DEVELOPMENTAL DISABILITY
  1.  Upon  application, a standby guardian of the person or property or
both of a [mentally retarded or developmentally disabled] person WITH  A
DEVELOPMENTAL  DISABILITY may be appointed by the court. ANY SUCH APPLI-
CATION SHALL BE MADE UPON NOTICE TO THE MENTAL  HYGIENE  LEGAL  SERVICE.
The  court  may  also,  upon  application,  appoint  an alternate and/or
successive alternates to such standby guardian, to act if  such  standby
guardian  shall  die,  or  become incapacitated, or shall renounce. Such
appointments  by  the  court  shall  be  made  in  accordance  with  the
provisions of this article.
  2.  Such  standby  guardian, or alternate in the event of such standby
guardian's death, incapacity  or  renunciation,  shall  without  further
proceedings be empowered to assume the duties of his or her office imme-
diately  upon death, renunciation or adjudication of incompetency of the
guardian or standby guardian appointed pursuant to this article, subject
only to THE FILING OF AN APPLICATION FOR  confirmation  of  his  or  her
appointment  by  the  court  within  one  hundred  eighty days following
assumption of his or her duties of such office.  Before  confirming  the
appointment of the standby guardian or alternate guardian, the court may

S. 4983                            17

conduct  a  hearing  pursuant to section seventeen hundred fifty-four of
this article upon petition by anyone on behalf of the [mentally retarded
or developmentally disabled] person WITH A DEVELOPMENTAL  DISABILITY  or
the [mentally retarded or developmentally disabled] person WITH A DEVEL-
OPMENTAL DISABILITY if such person is eighteen years of age or older, or
upon its discretion.
  3.  Failure  of  a standby or alternate standby guardian to assume the
duties of guardian, seek court confirmation or to renounce the guardian-
ship within sixty days of written notice by certified mail  or  personal
delivery  given  by  or  on behalf of the [mentally retarded or develop-
mentally disabled] person WITH A DEVELOPMENTAL  DISABILITY  of  a  prior
guardian's  inability  to  serve  and  the  standby or alternate standby
guardian's duty to serve, seek court confirmation or renounce such  role
shall allow the court to:
  (a) deem the failure an implied renunciation of guardianship, and
  (b)  authorize, notwithstanding the time period provided for in subdi-
vision two of this section to seek  court  confirmation,  any  remaining
standby or alternate standby guardian to serve in such capacity provided
(i)  an application for confirmation and appropriate notices pursuant to
subdivision one of section seventeen hundred fifty-three of this article
are filed, or (ii) an application for modification of  the  guardianship
order  pursuant  to section seventeen hundred fifty-five of this article
is filed.
  S 13. Subdivision 2 of section 1758 of the surrogate's court procedure
act, as amended by chapter 427 of the laws of 2013, is amended  to  read
as follows:
  2.  After the appointment of a guardian, standby guardian or alternate
guardians, the court shall have and retain general jurisdiction over the
[mentally retarded or developmentally disabled] person WITH  A  DEVELOP-
MENTAL  DISABILITY  for whom such guardian shall have been appointed, to
take of its own motion or to entertain and  adjudicate  such  steps  and
proceedings  relating  to such guardian, standby, or alternate guardian-
ship as may be deemed necessary  or  proper  for  the  welfare  of  such
[mentally  retarded  or developmentally disabled] person WITH A DEVELOP-
MENTAL DISABILITY.
  S 14. Section 1759 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1759. Duration of guardianship
  1. Such guardianship shall not terminate at the  age  of  majority  or
marriage  of such [mentally retarded or developmentally disabled] person
WITH A DEVELOPMENTAL DISABILITY but shall continue during  the  life  of
such person, DURING THE PERIOD SPECIFIED IN A LIMITED PURPOSE OR LIMITED
DURATION GUARDIANSHIP, or until terminated by the court.
  2.  A person eighteen years or older for whom such a guardian has been
previously appointed or anyone, including the guardian, on behalf  of  a
[mentally  retarded  or developmentally disabled] person WITH A DEVELOP-
MENTAL DISABILITY for whom a guardian has been  appointed  may  petition
the  court which made such appointment or the court in his or her county
of residence to have the guardian discharged and a successor  appointed,
or to have the guardian of the property designated as a limited guardian
of  the  property, or to have the guardianship order modified, dissolved
or otherwise amended. Upon such a petition for review, the  court  shall
conduct  a  hearing  pursuant to section seventeen hundred fifty-four of
this article.
  3. Upon marriage of such [mentally retarded or  developmentally  disa-
bled]  person  WITH  A DEVELOPMENTAL DISABILITY for whom such a guardian

S. 4983                            18

has been appointed, the court  shall,  upon  request  of  the  [mentally
retarded  or developmentally disabled] person WITH A DEVELOPMENTAL DISA-
BILITY, spouse, or any other person acting on behalf  of  the  [mentally
retarded  or developmentally disabled] person WITH A DEVELOPMENTAL DISA-
BILITY, review the need, if any, to modify, dissolve or otherwise  amend
the guardianship order including, but not limited to, the appointment of
the  spouse  as  standby  guardian.    The court, in its discretion, may
conduct such review pursuant to section seventeen hundred fifty-four  of
this article.
  S 15. Section 1760 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1760. Corporate guardianship
  No  corporation  may  be  appointed  guardian  of the person under the
provisions of this article, except that a non-profit corporation  organ-
ized and existing under the laws of the state of New York and having the
corporate  power  to  act  as guardian of [mentally retarded or develop-
mentally  disabled]  persons  WITH  DEVELOPMENTAL  DISABILITIES  may  be
appointed  as the guardian of the person only of such [mentally retarded
or developmentally disabled] person WITH A DEVELOPMENTAL DISABILITY.
  S 16. Section 1761 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1761. Application of other provisions
  To the extent that the context thereof shall admit, the provisions  of
article  seventeen of this act shall apply to all proceedings under this
article with the same force and [affect] EFFECT as if  an  "infant",  as
therein  referred  to,  were  a "[mentally retarded" or "developmentally
disabled] person WITH A DEVELOPMENTAL DISABILITY" as herein defined, and
a "guardian" as therein referred to were a "guardian  of  the  [mentally
retarded  person"  or  a "guardian of a developmentally disabled] person
WITH A DEVELOPMENTAL DISABILITY" as herein provided for.
  S 17.  The surrogate's court procedure act is amended by adding a  new
section 1762 to read as follows:
S 1762. ANNUAL REPORT OF PERSONAL NEEDS GUARDIAN
  1.  FOR  THE PURPOSES OF THIS ARTICLE, THE GUARDIAN OF A PERSON WITH A
DEVELOPMENTAL DISABILITY SHALL SUBMIT A REPORT REGARDING THE  STATUS  OF
THE  PERSON  WITH A DEVELOPMENTAL DISABILITY ANNUALLY ON THE ANNIVERSARY
OF HIS OR HER APPOINTMENT OR AT SUCH OTHER INTERVAL AS  ORDERED  BY  THE
COURT.
  2.  THE  REPORT  SHALL  BE ON A FORM PRESCRIBED BY THE OFFICE OF COURT
ADMINISTRATION.
  3. A CORPORATE GUARDIAN APPOINTED PURSUANT TO  SECTION  1760  OF  THIS
ARTICLE MAY SUBMIT IN LIEU OF THE FORM PRESCRIBED BY THE OFFICE OF COURT
ADMINISTRATION  IN  SUBDIVISION  TWO  OF  THIS  SECTION ITS OWN INTERNAL
REPORT PROVIDED THE INFORMATION REQUIRED TO BE CONTAINED IN  THE  REPORT
IS INCLUDED IN THE CORPORATE ANNUAL REPORT.
  4.  THE  GUARDIANSHIP  REPORT  FORM  SHALL BE FILED WITH THE COURT AND
MAILED TO STANDBY GUARDIANS AND ALTERNATE STANDBY GUARDIANS, AND,  WHERE
APPLICABLE,  THE DIRECTOR OF MENTAL HYGIENE LEGAL SERVICE IN THE DEPART-
MENT IN WHICH THE PERSON WITH A DEVELOPMENTAL DISABILITY RESIDES AND THE
DIRECTOR OF THE RESIDENCE OF THE PERSON WITH A DEVELOPMENTAL  DISABILITY
OR  THE  PERSON  WITH  WHOM  THE  PERSON WITH A DEVELOPMENTAL DISABILITY
RESIDES.
  S 18. This act shall take effect on  the  one  hundred  eightieth  day
after it shall have become a law.