Assembly Bill A7820

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7820
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 16, 2017
                                ___________
 
 Introduced by M. of A. LAVINE -- read once and referred to the Committee
   on Judiciary
 
 AN  ACT to amend the surrogate's court procedure act, in relation to the
   appointment of standby guardians for children of persons who  are  not
   United States citizens
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Subdivisions 3, 4 and 6 of section 1726 of the surrogate's
 court procedure act, as amended by chapter 632  of  the  laws  of  2003,
 paragraph  (c)  of  subdivision  3 and paragraph (e) of subdivision 4 as
 amended by chapter 71 of the laws  of  2007,  are  amended  to  read  as
 follows:
   3.  (a)  A petition for the judicial appointment of a standby guardian
 of the person and/or property of an infant pursuant to this  subdivision
 may  be made only by a parent, a legal guardian of the infant or a legal
 custodian of the infant; or where the infant  is  not  residing  with  a
 parent,  legal  guardian  or legal custodian and, to the satisfaction of
 the court, such parent, legal guardian  or  legal  custodian  cannot  be
 located  with  due  diligence,  the primary caretaker of such infant may
 petition for a judicial appointment of such standby guardian.   Applica-
 tion  for  standing  to  petition  as  a primary caretaker shall be upon
 motion to the court upon notice to such parties as the court may direct.
   (b) A petition for the judicial appointment of a standby  guardian  of
 an  infant  shall,  in  addition  to meeting the requirements of section
 seventeen hundred four of this article:
   (i) State whether the authority of the standby guardian is  to  become
 effective upon the petitioner's incapacity, upon the petitioner's death,
 upon  the  petitioner's  consent, UPON THE PETITIONER'S REMOVAL FROM THE
 UNITED STATES, or upon whichever occurs first;
   (ii) State that the petitioner: (A) suffers from [(A)] a progressively
 chronic illness [or]; (B) SUFFERS FROM an irreversibly fatal illness and
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10683-02-7

 A. 7820                             2
 
 the basis for such statement, such as the date and source of  a  medical
 diagnosis,  without requiring the identification of the illness in ques-
 tion; OR (C) IS NOT A CITIZEN OF THE UNITED STATES.
   (c) Upon a petition for the judicial appointment of a standby guardian
 of  an  infant  pursuant to paragraph (a) of this subdivision or for the
 judicial appointment of a guardian pursuant to paragraph (d) of subdivi-
 sion four of this section, the court shall conduct a hearing. The  court
 may  in  its discretion dispense with a hearing for the appointment of a
 standby guardian, and may in its discretion appoint a guardian ad  litem
 to  recommend  whether the appointment of a standby guardian as proposed
 in the application is in the best interest of the infant.
   (d) (i) If the court finds that the petitioner suffers from a progres-
 sively chronic illness or an irreversibly fatal illness  OR  THAT  PETI-
 TIONER  IS  NOT A CITIZEN OF THE UNITED STATES and that the interests of
 the infant will be promoted by the appointment of a standby guardian  of
 the person and/or property it must make a decree accordingly.
   (ii)  Such  decree  shall specify whether the authority of the standby
 guardian is effective  upon  the  receipt  of  a  determination  of  the
 petitioner's  incapacity,  upon  the  receipt  of the certificate of the
 petitioner's death[,] or other such evidence of death that may be satis-
 factory to the court, OR  UPON  PETITIONER'S  REMOVAL  FROM  THE  UNITED
 STATES,  or upon whichever occurs first, and shall also provide that the
 authority of the standby guardian  may  earlier  become  effective  upon
 written  consent  of  the parent pursuant to subparagraph (iii) of para-
 graph (e) of this subdivision.
   (iii) If at any time prior to the commencement of the authority of the
 standby guardian the court finds that the requirements  of  subparagraph
 (i)  of  this  paragraph  are  no  longer satisfied, it may rescind such
 decree.
   (e) (i) Where the decree provides that the authority  of  the  standby
 guardian   is   effective   upon  receipt  of  a  determination  of  the
 petitioner's incapacity, the standby guardian's authority shall commence
 upon the standby guardian's receipt of a  copy  of  a  determination  of
 incapacity made pursuant to subdivision six of this section. The standby
 guardian  shall  file a copy of the determination of incapacity with the
 court that issued the decree within ninety days of the date  of  receipt
 of  such  determination  or  the  standby  guardian's  authority  may be
 rescinded by the court.
   (ii) Where the decree provides that the authority of the standby guar-
 dian is effective upon receipt of  a  certificate  of  the  petitioner's
 death,  or  other such evidence of death that may be satisfactory to the
 court, the standby guardian's authority shall commence upon the  standby
 guardian's  receipt of a certificate of death, or other such evidence of
 death as may be specified in the decree. The standby guardian shall file
 the certificate of death, or other such  evidence  of  death,  with  the
 court  that  issued  the  decree  within  ninety days of the date of the
 petitioner's death or the standby guardian's authority may be  rescinded
 by the court.
   (iii)  WHERE  THE  DECREE  PROVIDES  THAT THE AUTHORITY OF THE STANDBY
 GUARDIAN IS EFFECTIVE UPON RECEIPT OF A COPY OF A DEPORTATION ORDER  FOR
 THE  PETITIONER,  OR  OTHER  SUCH  EVIDENCE THAT THE PETITIONER HAS BEEN
 REMOVED FROM THE UNITED STATES THAT MAY BE SATISFACTORY  TO  THE  COURT,
 THE STANDBY GUARDIAN'S AUTHORITY SHALL COMMENCE UPON THE STANDBY GUARDI-
 AN'S  RECEIPT  OF  SUCH DEPORTATION ORDER, OR OTHER SUCH EVIDENCE OF THE
 PETITIONER'S REMOVAL FROM THE UNITED STATES AS MAY BE SPECIFIED  IN  THE
 DECREE.  THE STANDBY GUARDIAN SHALL FILE THE DEPORTATION ORDER, OR OTHER

 A. 7820                             3
 
 SUCH EVIDENCE, WITH THE COURT THAT ISSUED THE DECREE WITHIN NINETY  DAYS
 OF  THE  DATE  OF THE PETITIONER'S REMOVAL FROM THE UNITED STATES OR THE
 STANDBY GUARDIAN'S AUTHORITY MAY RESCINDED BY THE COURT.
   (IV)  Notwithstanding  subparagraphs (i) [and], (ii) AND (III) of this
 paragraph, a standby guardian's authority shall commence upon the stand-
 by guardian's receipt  of  the  petitioner's  written  consent  to  such
 commencement,  signed by the petitioner in the presence of two witnesses
 at least eighteen years of age, other than  the  standby  guardian,  who
 shall also sign the writing. Another person may sign the written consent
 on  the  petitioner's  behalf  and  at the petitioner's direction if the
 petitioner is physically unable to  do  so,  provided  such  consent  is
 signed  in the presence of the petitioner and the witnesses. The standby
 guardian shall file the written consent with the court that  issued  the
 decree within ninety days of the date of receipt of such written consent
 or the standby guardian's authority may be rescinded by the court.
   (f)  The  petitioner  may  revoke a standby guardianship created under
 this subdivision by executing a written revocation, filing it  with  the
 court that issued the decree, and promptly notifying the standby guardi-
 an of the revocation.
   (g)  A  person  judicially appointed standby guardian pursuant to this
 subdivision may at any time  before  the  commencement  of  his  or  her
 authority  renounce  the appointment by executing a written renunciation
 and filing it with the court that issued the decree, and promptly  noti-
 fying the petitioner of the revocation.
   4. (a) A parent, a legal guardian, a legal custodian, or primary care-
 taker  under the circumstances described in paragraph (a) of subdivision
 three of this section may designate a standby guardian  by  means  of  a
 written  designation, signed by the parent, legal guardian, legal custo-
 dian or primary caretaker in the presence  of  two  witnesses  at  least
 eighteen  years  of age, other than the standby guardian, who shall also
 sign the writing. Another person may sign the written designation on the
 parent's, legal guardian's, legal  custodian's  or  primary  caretaker's
 behalf  and  at  the  parent's,  legal  guardian's, legal custodian's or
 primary caretaker's direction  if  the  parent,  legal  guardian,  legal
 custodian  or  primary caretaker is physically unable to do so, provided
 the designation is signed in the presence of the parent, legal guardian,
 legal custodian or primary caretaker and the witnesses.
   (b) (i) A designation of a standby guardian shall identify the parent,
 legal guardian, legal custodian or primary caretaker, the infant and the
 person designated to be the standby guardian, and  shall  indicate  that
 the parent, legal guardian, legal custodian or primary caretaker intends
 for  the  standby  guardian to become the infant's guardian in the event
 the parent, legal guardian, legal custodian or primary caretaker either:
 (A) becomes incapacitated; (B) becomes debilitated and consents  to  the
 commencement of the standby guardian's authority; [or] (C) dies prior to
 the  commencement  of a judicial proceeding to appoint a guardian of the
 person and/or property of an infant; OR (D) IS NO LONGER IN  THE  UNITED
 STATES.
   (ii)  A  parent,  legal guardian, legal custodian or primary caretaker
 may designate an alternate standby guardian in the same writing, and  by
 the same manner, as the designation of a standby guardian.
   (iii) A designation may, but need not, be in the following form:
                      Designation of Standby Guardian
     (NOTE:  As  used  in  this form, the term "parent" shall include a
   parent, a court-appointed guardian of an infant's person or  proper-
   ty,  a  legal  custodian,  or  a  primary  caretaker,  and  the term

 A. 7820                             4

   "child(ren)" shall include the dependant infant of a parent,  court-
   appointed guardian, legal custodian or primary caretaker
         I (name of parent) hereby designate (name, home address and
      telephone  number  of standby guardian) as standby guardian of
      the person and property of my child(ren) (name of child(ren)).
         (You may, if you wish, provide that the standby  guardian's
      authority  shall  extend  only  to  the person, or only to the
      property, of your child, by crossing out "person" or  "proper-
      ty", whichever is inapplicable, above.)
         The  standby guardian's authority shall take effect: (1) if
      my doctor concludes in writing that I  am  mentally  incapaci-
      tated,  and  thus  unable to care for my child(ren); (2) if my
      doctor concludes in writing that I am physically  debilitated,
      and  thus  unable  to  care for my child(ren) and I consent in
      writing, before  two  witnesses,  to  the  standby  guardian's
      authority  taking effect; [or (iii)] (3) upon my death; OR (4)
      UPON  MY  REMOVAL  FROM  THE  UNITED  STATES   BY   ORDER   OF
      DEPORTATION.
         In  the  event  the  person  I designate above is unable or
      unwilling to act as  guardian  for  my  child(ren),  I  hereby
      designate  (name,  home address and telephone number of alter-
      nate standby guardian), as standby guardian of my child(ren).
         I also understand that my standby guardian's authority will
      cease sixty days after commencing unless by such  date  he  or
      she petitions the court for appointment as guardian.
         I  understand  that  I  retain full parental, guardianship,
      custodial or caretaker rights even after the  commencement  of
      the  standby  guardian's authority, and may revoke the standby
      guardianship at any time.
         Signature: ________________________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
         I declare that the person whose name appears  above  signed
      this document in my presence, or was physically unable to sign
      and  asked  another  to  sign  this document, who did so in my
      presence. I further declare that I am at least eighteen  years
      old and am not the person designated as standby guardian.
         Witness' Signature: _______________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
         Witness' Signature: _______________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
   (iv) Notwithstanding [paragraphs] THIS PARAGRAPH OR PARAGRAPH (a) [and
 (b)]  of  this  subdivision,  a designation of standby guardian shall be
 effective as if made in accordance with the requirements of this  subdi-
 vision  if  it  was  validly made: (a) where the parent, legal guardian,
 legal custodian or primary caretaker was domiciled at the  time  it  was
 executed; (b) in the jurisdiction where it was executed or (c) where the
 parent,  legal  guardian,  legal custodian or primary caretaker is domi-
 ciled at the time the designation becomes effective.
   (c) The authority of the standby guardian under  a  designation  shall
 commence  upon either: (i) the standby guardian's receipt of a copy of a
 determination of incapacity made pursuant to  subdivision  six  of  this
 section; (ii) the standby guardian's receipt of (A) a copy of a determi-
 nation  of debilitation made pursuant to subdivision six of this section

 A. 7820                             5
 
 and (B) a copy of the parent's, legal guardian's, legal  custodian's  or
 primary  caretaker's written consent to such commencement, signed by the
 parent, legal guardian, legal custodian  or  primary  caretaker  in  the
 presence of two witnesses at least eighteen years of age, other than the
 standby  guardian,  who shall also sign the writing.  Another person may
 sign the written consent on the parent's, legal guardian's, legal custo-
 dian's or primary caretaker's behalf and at the parent's, legal  guardi-
 an's,  legal custodian's or primary caretaker's direction if the parent,
 legal guardian, legal  custodian  or  primary  caretaker  is  physically
 unable  to do so, provided such consent is signed in the presence of the
 parent, legal guardian, legal custodian or  primary  caretaker  and  the
 witnesses; [or] (iii) the standby guardian's receipt of a certificate of
 death,  funeral  home receipt or other such document indicating that the
 parent, legal guardian, legal custodian or primary caretaker  has  died;
 OR  (IV)  THE STANDBY GUARDIAN'S RECEIPT OF A DEPORTATION ORDER OR OTHER
 SUCH DOCUMENT INDICATING THAT THE PARENT, LEGAL GUARDIAN,  LEGAL  CUSTO-
 DIAN  OR  PRIMARY CARETAKER HAS BEEN REMOVED FROM THE UNITED STATES. The
 standby guardian shall file a petition pursuant to paragraph (d) of this
 subdivision within sixty days of the date of its  commencement  pursuant
 to this paragraph or such standby guardian's authority shall cease after
 such date, but shall recommence upon such filing.
   (d) The standby guardian may file a petition for appointment as guard-
 ian after receipt of either: (i) a copy of a determination of incapacity
 made  pursuant to subdivision six of this section; or (ii) (A) a copy of
 a determination of debilitation made pursuant to subdivision six of this
 section and (B) a copy of the parent's, legal guardian's,  legal  custo-
 dian's or primary caretaker's written consent, pursuant to paragraph (c)
 of  this  subdivision;  or  (iii)  a certificate of death, or other such
 evidence of death that may be satisfactory to the court; OR (IV) A  COPY
 OF  THE  DEPORTATION  ORDER  OR  OTHER SUCH DOCUMENT INDICATING THAT THE
 PARENT, LEGAL GUARDIAN, LEGAL CUSTODIAN OR PRIMARY  CARETAKER  HAS  BEEN
 REMOVED FROM THE UNITED STATES. Such petition must, in addition to meet-
 ing the requirements of section seventeen hundred four of this article:
   (i) append the written designation of such person as standby guardian;
 and
   (ii)  append  a  copy  of:  (A) the determination of incapacity of the
 parent, legal guardian, legal custodian or primary caretaker; or (B) the
 determination of debilitation and the parental, guardian's,  custodian's
 or caretaker's consent; or (C) a copy of the parent's, legal guardian's,
 legal  custodian's  or  primary  caretaker's death certificate, or other
 such evidence of death that may be satisfactory to the court; OR  (D)  A
 COPY OF THE DEPORTATION ORDER OR OTHER SUCH DOCUMENT INDICATING THAT THE
 PARENT,  LEGAL  GUARDIAN,  LEGAL CUSTODIAN OR PRIMARY CARETAKER HAS BEEN
 REMOVED FROM THE UNITED STATES; and
   (iii) if the petition is by a person designated as  alternate  standby
 guardian,  state  that  the  person  designated  as  standby guardian is
 unwilling or unable to act as standby guardian, and the basis  for  such
 statement.
   (e) Subject to the provisions of paragraph (c) of subdivision three of
 this section, if the court finds that the petitioner was duly designated
 as standby guardian, that the parent, legal guardian, legal custodian or
 primary  caretaker  of  the  infant  is  incapacitated,  debilitated and
 consents [or], has died, as established by a copy of a death certificate
 or other such evidence of death as may be satisfactory to the court,  OR
 HAS  BEEN  REMOVED  FROM  THE  UNITED  STATES, that the interests of the
 infant will be promoted by the appointment of a standby guardian of  the

 A. 7820                             6
 
 person  and/or property, and that, if the petition is by a person desig-
 nated as alternate standby guardian, the person  designated  as  standby
 guardian is unwilling or unable to act as standby guardian, it must make
 a decree accordingly.
   (f)  The  parent, legal guardian, legal custodian or primary caretaker
 may revoke a standby guardianship created under this subdivision: (i) by
 executing a subsequent designation of  guardianship  pursuant  to  para-
 graphs  (a)  and  (b)  of  this subdivision, or (ii) notwithstanding the
 provisions of sections seventeen hundred ten and seventeen hundred elev-
 en of this article, in the case of a standby  guardian  whose  authority
 becomes  effective  upon  the death of the parent, legal guardian, legal
 custodian or primary caretaker of the infant,  by  a  subsequent  desig-
 nation  of  standby  guardian  set  forth in a will of the parent, legal
 guardian, legal custodian or primary caretaker, or  (iii)  by  notifying
 the standby guardian verbally or in writing or by any other act evidenc-
 ing  a  specific  intent to revoke the standby guardianship prior to the
 filing of a petition. Where the petition  has  already  been  filed,  by
 executing a written revocation, filing it with the court where the peti-
 tion was filed, and promptly notifying the standby guardian of the revo-
 cation.
   6. (a) A determination of incapacity or debilitation must: (i) be made
 by  the attending physician to a reasonable degree of medical certainty;
 (ii) be in writing; and (iii) contain the attending physician's  opinion
 regarding  the cause and nature of the parent's, legal guardian's, legal
 custodian's or primary caretaker's incapacity or debilitation as well as
 its extent and probable duration. The attending physician shall  provide
 a copy of the determination of incapacity or debilitation to the standby
 guardian, if the standby guardian's identity is known to the physician.
   (b) If requested by the standby guardian, an attending physician shall
 make  a  determination  regarding  the parent's, legal guardian's, legal
 custodian's  or  primary  caretaker's  incapacity  or  debilitation  for
 purposes of this section.
   (c) The standby guardian shall ensure that the parent, legal guardian,
 legal  custodian or primary caretaker is informed of the commencement of
 the standby guardian's authority as a result of a determination of inca-
 pacity OR DEPORTATION and  of  the  parent's,  legal  guardian's,  legal
 custodian's  or  primary  caretaker's  right  to  revoke  such authority
 promptly  after  receipt  of  the   determination   of   incapacity   OR
 DEPORTATION, provided there is any indication of the person's ability to
 comprehend such information.
   § 2. This act shall take effect immediately.