LBD10185-05-7
A. 8171--A 2
NEEDS. 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 person who is intellectually disabled]. THE
NATURE AND DURATION OF THE GUARDIANSHIP MUST BEAR A REASONABLE RELATION
TO THE PURPOSE FOR WHICH THE PERSON IS APPOINTED A GUARDIAN.
[1. For the purposes of this article, a person who is intellectually
disabled is a person who has been certified by one licensed physician
and one licensed 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 an intellectual disability, having quali-
fications to make such certification, as being incapable to manage him
or herself and/or his or her affairs by reason of intellectual disabili-
ty 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.
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 person [who is intellectually disabled] 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 person [who
is intellectually disabled] WITH A DEVELOPMENTAL DISABILITY has the
capacity to make health care decisions shall not preclude the appoint-
ment of a guardian pursuant to this section to make other decisions on
behalf of the person [who is intellectually disabled] WITH A DEVELOP-
MENTAL DISABILITY. The absence of this determination in the case of
guardians appointed prior to [the effective date of this subdivision]
MARCH SIXTEENTH, TWO THOUSAND THREE, shall not preclude such guardians
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.
§ 2. Section 1750-a of the surrogate's court procedure act is
REPEALED.
§ 3. Section 1750-b of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 1750-b. Health care decisions for persons [who are intellectually
disabled] WITH DEVELOPMENTAL DISABILITIES
1. Scope of authority. AS USED IN THIS SECTION THE TERM "DEVELOP-
MENTAL DISABILITY" SHALL HAVE THE SAME MEANING AS DEFINED IN SUBDIVISION
TWENTY-TWO OF SECTION 1.03 OF THE MENTAL HYGIENE LAW. Unless specif-
ically prohibited by the court after consideration of [the determi-
nation, if any, regarding] a person [who is intellectually disabled's]
WITH A DEVELOPMENTAL DISABILITY'S capacity to make health care deci-
sions, 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
A. 8171--A 3
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 person [who is intellectually disabled] WITH A DEVELOPMENTAL
DISABILITY that such person could make if such person had capacity. Such
decisions may include decisions to withhold or withdraw life-sustaining
treatment. For purposes of this section, "life-sustaining treatment"
means medical treatment, including cardiopulmonary resuscitation and
nutrition and hydration provided by means of medical treatment, 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 person [who is intellectually disabled]
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
intellectual disability, or (ii)] has a developmental disability, as
defined in SUBDIVISION TWENTY-TWO OF section 1.03 of the mental hygiene
law, [which (A) includes intellectual disability, 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 disa-
bility] AND THAT SUCH PERSON, AS A RESULT OF SUCH DEVELOPMENTAL DISABIL-
ITY, EXHIBITS SIGNIFICANT IMPAIRMENT OF THE ABILITY TO MAKE HIS OR HER
OWN HEALTH CARE DECISIONS. Qualified family members shall be included in
a prioritized list of said family members pursuant to regulations estab-
lished by the commissioner of the office for people with 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 deci-
sion, then a "guardian" shall also mean the Willowbrook consumer advi-
sory 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 decision of a guardian to withhold or withdraw life-sus-
taining 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
A. 8171--A 4
declarations and procedures, including expedited procedures, to comply
with this section shall be established by regulations promulgated by the
[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 the office for people with developmental disabil-
ities in conjunction with parents, advocates and family members of
persons [who are intellectually disabled] WITH DEVELOPMENTAL DISABILI-
TIES. Regulations to implement the authority of the Willowbrook consumer
advisory board pursuant to paragraph (a) of this subdivision may be
promulgated by the commissioner of the office for people with develop-
mental 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 person [who is intellectually disabled] WITH A DEVELOP-
MENTAL DISABILITY and, when reasonably known or ascertainable with
reasonable diligence, on [the person who is intellectually disabled's]
SUCH PERSON'S wishes, including moral and religious beliefs.
(b) An assessment of the person [who is intellectually disabled's]
WITH A DEVELOPMENTAL DISABILITY'S best interests shall include consider-
ation of:
(i) the dignity and uniqueness of every person;
(ii) the preservation, improvement or restoration of the person [who
is intellectually disabled's] WITH A DEVELOPMENTAL DISABILITY'S health;
(iii) the relief of the person [who is intellectually disabled's] WITH
A DEVELOPMENTAL DISABILITY'S suffering by means of palliative care and
pain management;
(iv) the unique nature of artificially provided nutrition or
hydration, and the effect it may have on the person [who is intellectu-
ally disabled] 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 [who are intellectually disabled] WITH
DEVELOPMENTAL DISABILITIES are not entitled to the full and equal
rights, equal protection, respect, medical care and dignity afforded to
persons without [an intellectual disability or a] developmental [disa-
bility] 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 person [who
is intellectually disabled's] 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. 8171--A 5
a person [who is intellectually disabled] WITH A DEVELOPMENTAL DISABILI-
TY:
(a) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, must confirm to a
reasonable degree of medical certainty that the person [who is intellec-
tually disabled] WITH A DEVELOPMENTAL DISABILITY lacks capacity to make
health care decisions. The determination thereof shall be included in
the person [who is intellectually disabled's] WITH A DEVELOPMENTAL DISA-
BILITY'S medical record, and shall contain such attending physician's
opinion regarding the cause and nature of the person [who is intellectu-
ally disabled's] WITH A DEVELOPMENTAL DISABILITY'S incapacity as well as
its extent and probable duration. The attending physician who makes the
confirmation shall consult with another physician, or a licensed
psychologist, to further confirm the person [who is intellectually disa-
bled's] WITH A DEVELOPMENTAL DISABILITY'S lack of capacity. The attend-
ing physician who makes the confirmation, or the physician or licensed
psychologist with whom the attending physician consults, must (i) 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 (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 for people with develop-
mental disabilities, or (iii) have been approved by the commissioner of
the office for people with 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 experience in treating [intellectual disability]
PERSONS WITH DEVELOPMENTAL DISABILITIES. A record of such consultation
shall be included in the person [who is intellectually disabled's] WITH
DEVELOPMENTAL DISABILITY'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 person [who is intellectually disabled's] WITH A DEVELOP-
MENTAL DISABILITY'S chart that:
(i) the person [who is intellectually disabled] WITH A DEVELOPMENTAL
DISABILITY 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 [intellectual disabil-
ity] 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 [intel-
lectual disability] DEVELOPMENTAL DISABILITY; and
B. the expected outcome of the life-sustaining treatment, notwith-
standing such person's [intellectual disability] DEVELOPMENTAL DISABILI-
TY; 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
A. 8171--A 6
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
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 person [who is intellectually disabled's] WITH A
DEVELOPMENTAL DISABILITY'S attending physician, as defined in subdivi-
sion 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 person
[who is intellectually disabled's] WITH A DEVELOPMENTAL DISABILITY'S
medical chart, and shall either:
(i) promptly issue an order to withhold or withdraw life-sustaining
treatment from the person [who is intellectually disabled] WITH A DEVEL-
OPMENTAL DISABILITY, 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 person [who is intellectually disabled] WITH A DEVELOPMENTAL
DISABILITY, except if the attending physician determines, in writing and
in consultation with another physician or a licensed psychologist, that,
to a reasonable degree of medical certainty, the person would suffer
immediate and severe injury from such notification. The attending physi-
cian who makes the confirmation, or the physician or licensed psychol-
ogist 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 for
people with developmental disabilities, or
C. have been approved by the commissioner of the office for people
with 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 [intellectual disability] DEVELOPMENTAL
DISABILITIES. A record of such consultation shall be included in the
person [who is intellectually disabled's] WITH A DEVELOPMENTAL DISABILI-
TY'S medical record;
(ii) if the person is in or was transferred from a residential facili-
ty operated, licensed or authorized by the office for people with devel-
opmental disabilities, the chief executive officer of the agency or
organization operating such facility and the mental hygiene legal
service; and
A. 8171--A 7
(iii) if the person is not in and was not transferred from such a
facility or program, the commissioner of the office for people with
developmental 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
person [who is intellectually disabled] WITH A DEVELOPMENTAL DISABILITY,
in the event of an objection to that decision at any time by:
(i) the person [who is intellectually disabled] WITH A DEVELOPMENTAL
DISABILITY on whose behalf such decision was made; or
(ii) a parent or adult sibling who either resides with or has main-
tained substantial and continuous contact with the person [who is intel-
lectually disabled] WITH A DEVELOPMENTAL DISABILITY; 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
person [who is intellectually disabled] WITH A DEVELOPMENTAL DISABILITY,
who is licensed pursuant to article one hundred thirty-one, one hundred
thirty-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 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 the office for people with
developmental 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 person [who is intellectually disabled's] WITH A
DEVELOPMENTAL 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.
A. 8171--A 8
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 for people with developmental disabilities) or
the commissioner of the office for people with developmental disabili-
ties or his or her designee (if the person is not in and was not trans-
ferred from such a facility or program) may commence a special proceed-
ing 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 person [who is intellectually disabled] 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 person [who is intellectually disabled]
WITH A DEVELOPMENTAL 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 person [who is intellectually disabled] WITH A DEVELOPMENTAL
DISABILITY is transferred promptly to another hospital that is reason-
ably 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 constitute 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 person [who is intellectually
disabled] 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 person [who is
intellectually disabled] WITH A DEVELOPMENTAL DISABILITY to another
individual health care provider willing to honor the guardian's deci-
sion. The individual health care provider shall cooperate in facilitat-
ing such transfer 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
A. 8171--A 9
likely to result in the death of the person [who is intellectually disa-
bled] WITH A DEVELOPMENTAL DISABILITY, a hospital or individual health
care provider that does not wish to provide such treatment shall none-
theless comply with the guardian's decision pending either transfer of
the person [who is intellectually disabled] WITH A DEVELOPMENTAL DISA-
BILITY to a willing hospital or individual health care provider, 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
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.
§ 4. Section 1751 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 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 person [who is intellectually disabled or a
person who is developmentally disabled] 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 person [who is intellectually
disabled or a person who is developmentally disabled] WITH A DEVELOP-
MENTAL DISABILITY including a corporation authorized to serve as a guar-
dian as provided for by this article[, or by the person who is intellec-
tually disabled or a person who is developmentally disabled 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.
§ 5. The surrogate's court procedure act is amended by adding a new
section 1751-a to read as follows:
§ 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 DUE TO INCONVENIENCE TO THE PARTIES OR
WITNESSES, OR DUE TO 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. 8171--A 10
A DEVELOPMENTAL DISABILITY RESIDES, WITHOUT THE NEED FOR A MOTION TO
TRANSFER VENUE.
§ 6. Section 1752 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 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 person [who is intellectually
disabled or a person who is developmentally disabled] WITH A DEVELOP-
MENTAL DISABILITY shall include, but not be limited to, the following
information:
1. the full name, date of birth and residence of the person [who is
intellectually disabled or a person who is developmentally disabled]
WITH A DEVELOPMENTAL DISABILITY;
2. the name, age, address and relationship or interest of the peti-
tioner to the person [who is intellectually disabled or a person who is
developmentally disabled] 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 person [who
is intellectually disabled or a person who is developmentally disabled]
WITH A DEVELOPMENTAL DISABILITY 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 person who is
intellectually disabled or a] CARING FOR THE person [who is develop-
mentally disabled] 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 person [who is intellectually disabled or
person who is developmentally disabled] 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 person who is intellectually
disabled or person who is developmentally disabled to not be present at
the hearing if conducted.]
8. FACTUAL ALLEGATIONS FORMING THE BASIS FOR THE PETITION, INCLUDING
FACTS RELATING TO THE PERSON'S FUNCTIONAL LIMITATIONS WHICH IMPAIR HIS
OR HER ABILITY TO PROVIDE FOR PERSONAL AND/OR PROPERTY MANAGEMENT NEEDS,
AND THE PERSON'S LACK OF UNDERSTANDING AND APPRECIATION OF THE NATURE
AND CONSEQUENCES OF HIS OR HER FUNCTIONAL LIMITATIONS;
A. 8171--A 11
9. THE PARTICULAR POWERS BEING SOUGHT UNDER THEIR RELATIONSHIP TO THE
FUNCTIONAL LEVEL AND NEEDS OF THE PERSON WITH A DEVELOPMENTAL DISABILI-
TY;
10. 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; AND
11. A STATEMENT OF THE ALTERNATIVES TO GUARDIANSHIP CONSIDERED,
INCLUDING 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.
§ 7. Section 1753 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 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 person who is intellectually disabled or person who is devel-
opmentally disabled is married, to the spouse, if their residences are
known;
(b) the person having care and custody of the person who is intellec-
tually disabled or person who is developmentally disabled, or with whom
such person resides if other than the parents or spouse; and
(c) the person who is intellectually disabled or person who is devel-
opmentally disabled if fourteen years of age or older for whom an appli-
cation 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 person who is intellectually disa-
bled or person who is developmentally disabled resides in such a facili-
ty;
(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 person who is
intellectually disabled or person who is developmentally disabled
resides in such facility;
(d) one other person if designated in writing by the person who is
intellectually disabled or person who is developmentally disabled; and
A. 8171--A 12
(e) such other persons as the court may deem proper] THE PERSON WITH A
DEVELOPMENTAL DISABILITY, IF THE PETITIONER IS OTHER THAN THE PERSON
WITH A DEVELOPMENTAL DISABILITY ALLEGED TO BE IN NEED OF A GUARDIAN. ANY
PROCESS SERVED UPON THE PERSON WITH A DEVELOPMENTAL DISABILITY SHALL BE
ACCOMPANIED BY A SIMPLIFIED, CLEAR AND EASILY READABLE FORM STATEMENT,
DEVELOPED BY THE OFFICE OF COURT ADMINISTRATION, INCLUDING THE RIGHT OF
THE PERSON TO CONTEST THE APPOINTMENT OF THE GUARDIAN TO BE PRESENT AT
HEARINGS RELATED TO THE PROCEEDING, TO BE REPRESENTED BY AN ATTORNEY AND
A STATEMENT ABOUT THE NATURE AND IMPLICATIONS OF THE PROCEEDINGS.
2. UPON FILING OF THE PETITION, NOTICE OF THE PETITION SHALL BE SENT
BY CERTIFIED MAIL TO THE LAST KNOWN ADDRESS OF THE FOLLOWING, EXCEPT IF
ANY OF THE FOLLOWING IS ALSO THE PETITIONER:
(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 SECTION 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 BY REGULAR MAIL UNLESS SUCH STANDBY GUAR-
DIANS HAVE CONSENTED TO THE PETITION. AN AFFIDAVIT OF SERVICE BY MAIL
SHALL BE FILED WITH THE COURT. A COPY OF SUCH PETITION TO MODIFY SHALL
ALSO BE SERVED BY CERTIFIED MAIL UPON THE MENTAL HYGIENE LEGAL SERVICE
IN THE JUDICIAL DEPARTMENT IN WHICH THE PETITION WAS FILED.
[3.] 5. No process or notice shall be necessary to [a parent, adult
child, adult sibling, or spouse of the person who is intellectually
disabled or person who is developmentally disabled 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 person who is intel-
lectually disabled or person who is developmentally disabled, and to] a
parent, adult child, OR adult sibling when it shall appear to the satis-
faction of the court, BASED ON EVIDENCE SUBMITTED TO THE COURT, that
such person or persons have abandoned the person who [is intellectually
disabled or person who is developmentally disabled] HAS A DEVELOPMENTAL
DISABILITY. IN ADDITION, NO PROCESS OR NOTICE SHALL BE NECESSARY TO ANY
INDIVIDUAL WHO CANNOT, AFTER DUE DILIGENCE, REASONABLY BE LOCATED. THE
PETITIONER SHALL SUBMIT AN AFFIDAVIT TO SUCH EFFECT.
§ 8. Section 1754 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 1754. [Hearing and trial] PROCEEDINGS UPON PETITION
A. 8171--A 13
1. Upon a petition for the appointment of a guardian of a person [who
is intellectually disabled or person who is developmentally disabled]
WITH A DEVELOPMENTAL DISABILITY eighteen years of age or older, the
court shall [conduct a hearing at which such person shall have the right
to jury trial. The right to a jury trial shall be deemed waived by fail-
ure 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 guardian 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 person who is intellectually
disabled or person who is developmentally disabled, 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 UNABLE TO REPRESENT THE INTERESTS OF THE PERSON IN THE
PROCEEDING DUE TO CONFLICT OF INTEREST.
(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 OF HIS OR HER OWN CHOICE, THE
COURT SHALL APPOINT COUNSEL FOR THE PERSON FROM AMONG ATTORNEYS ELIGIBLE
FOR SUCH APPOINTMENT PURSUANT TO SECTION THIRTY-FIVE OF THE JUDICIARY
LAW. THE COURT SHALL ENSURE THAT THE INDIVIDUAL'S COUNSEL, WHETHER IT
BE THE SERVICE OR APPOINTED COUNSEL, HAVE DEMONSTRATED EXPERIENCE WITH
AND KNOWLEDGE OF REPRESENTING INDIVIDUALS WITH DEVELOPMENTAL DISABILI-
TIES. THE APPOINTMENT OF SUCH COUNSEL SHALL BE AT NO COST TO THE PETI-
TIONER.
(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. THE SERVICE SHALL CONDUCT AN EXAMINATION INTO
THE ALLEGATIONS OF FACT CONTAINED IN THE PETITION AND FILE WITH THE
COURT AND SERVE UPON THE PETITIONER OR THEIR COUNSEL, 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. IF APPROPRIATE
AND UPON CONSENT OF THE PERSON WITH A DEVELOPMENTAL DISABILITY, THE
SERVICE MAY NOMINATE A PERSON OR ENTITY OF THE RESPONDENT'S CHOOSING TO
SERVE AS GUARDIAN. 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 DOES NOT OBJECT AND DOES NOT OTHERWISE APPEAR BY THE SERVICE OR
OTHER COUNSEL, THE COURT SHALL APPOINT A GUARDIAN AD LITEM TO SUCH
PERSON 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
A. 8171--A 14
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 DISCON-
FIRMING SAID ALLEGATIONS, AND IF APPROPRIATE AND UPON CONSENT OF THE
PERSON WITH A DEVELOPMENTAL DISABILITY 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 UPON CONSENT OF THE
PERSON WITH THE DEVELOPMENTAL DISABILITY.
(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. SUCH EVALUATION SHALL BE AT NO COST TO
THE PETITIONER.
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 person who is intellectually disabled or person who is
developmentally disabled 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 hearing 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 GUARDIAN AD LITEM IF THE RESPONDENT DOES
NOT HAVE COUNSEL AND UPON CONSENT OF THE RESPONDENT. 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, AND THE REPORT OF THE GUARDIAN AD LITEM,
IF ANY, AND SHALL 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 BE
ISSUED, INCLUDING THE AUTHORITY OF THE GUARDIAN TO ACT ON BEHALF OF THE
RESPONDENT WITH RESPECT TO ANY MATTER IN WHICH PETITIONER, THE SERVICE,
A. 8171--A 15
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 ON THE MATTER AT WHICH THE RESPONDENT SHALL BE PRES-
ENT UNLESS THE COURT DETERMINES, BASED ON CLEAR AND CONVINCING EVIDENCE,
THAT THE RESPONDENT'S PRESENCE IS MEDICALLY CONTRAINDICATED, IN THAT IT
WOULD BE LIKELY TO CAUSE HARM TO THE RESPONDENT, OR THAT THE RESPONDENT
IS COMPLETELY UNABLE TO PARTICIPATE IN THE HEARING OR WHERE NO MEANING-
FUL PARTICIPATION WILL RESULT FROM THE RESPONDENT'S PRESENCE AT THE
HEARING. 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. IF THE RESPONDENT PHYSICALLY CANNOT COME OR
BE BROUGHT TO THE COURTHOUSE, OR THE COURT DETERMINES, BASED ON CLEAR
AND CONVINCING EVIDENCE THAT THE RESPONDENT'S PRESENCE WOULD BE HARMFUL
TO THE RESPONDENT, THE HEARING MUST BE CONDUCTED WHERE THE RESPONDENT
RESIDES.
3. [If a hearing is conducted, the person who is intellectually disa-
bled or person who is developmentally disabled shall be present unless
it shall appear to the satisfaction of the court on the certification of
the certifying physician that the person who is intellectually disabled
or person who is developmentally disabled is medically incapable of
being present to the extent that attendance is likely to result in phys-
ical harm to such person who is intellectually disabled or person who is
developmentally disabled, or under such other circumstances which the
court finds would not be in the best interest of the person who is
intellectually disabled or person who is developmentally disabled] 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 PETITION WHICH ARE CONTROVERTED AND
ARE RELEVANT TO WHETHER RESPONDENT HAS A DEVELOPMENTAL DISABILITY, AND
IF SO, WHETHER APPOINTMENT OF A GUARDIAN IS REQUIRED AS PROVIDED UNDER
SUBDIVISION ONE OF SECTION SEVENTEEN HUNDRED FIFTY OF THIS ARTICLE AND
THE SCOPE OF THE GUARDIAN'S POWERS.
4. [If either a hearing is dispensed with pursuant to subdivisions one
and two of this section or the person who is intellectually disabled or
person who is developmentally disabled 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 author-
ized to act on behalf of the person who is intellectually disabled or
person who is developmentally disabled. The guardian ad litem or mental
hygiene legal service attorney, if appointed, shall personally interview
the person who is intellectually disabled or person who is develop-
mentally disabled 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 person who is intellectually disabled or person who is
developmentally disabled will be promoted by the appointment of a guard-
ian 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, BASED ON
THE STANDARD OUTLINED IN THIS SECTION AND IN SUBDIVISION ONE OF SECTION
A. 8171--A 16
SEVENTEEN HUNDRED FIFTY OF THIS ARTICLE THAT THE RESPONDENT HAS A DEVEL-
OPMENTAL 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 COURT DECREE SHALL BE
DESIGNED TO ACCOMPLISH THE LEAST RESTRICTIVE FORM OF INTERVENTION BY
APPOINTING A GUARDIAN WITH POWERS LIMITED TO THOSE WHICH THE COURT HAS
FOUND NECESSARY TO ASSIST THE RESPONDENT IN PROVIDING FOR PERSONAL NEEDS
AND/OR PROPERTY MANAGEMENT. THE POWERS OF THE GUARDIAN SHALL BE
TAILORED TO THE NEEDS OF THE RESPONDENT.
5. IF THE RESPONDENT IS FOUND TO HAVE AGREED TO THE APPOINTMENT OF A
GUARDIAN AND THE COURT DETERMINES THAT THE APPOINTMENT OF A GUARDIAN IS
NECESSARY, THE COURT DECREE SHALL BE DESIGNED TO ACCOMPLISH THE LEAST
RESTRICTIVE FORM OF INTERVENTION BY APPOINTING A GUARDIAN WITH POWERS
LIMITED TO THOSE WHICH THE COURT HAS FOUND NECESSARY TO ASSIST THE
RESPONDENT IN PROVIDING FOR PERSONAL NEEDS AND/OR PROPERTY MANAGEMENT.
THE POWERS OF THE GUARDIAN SHALL BE TAILORED TO THE NEEDS OF THE
RESPONDENT.
6. IF THE RESPONDENT IS FOUND TO BE A PERSON WITH A DEVELOPMENTAL
DISABILITY AND THE COURT DETERMINES THAT THE APPOINTMENT OF A GUARDIAN
IS NECESSARY, THE COURT DECREE SHALL BE DESIGNED TO ACCOMPLISH THE LEAST
RESTRICTIVE FORM OF INTERVENTION BY APPOINTING A GUARDIAN WITH POWERS
LIMITED TO THOSE WHICH THE COURT HAS FOUND NECESSARY TO ASSIST THE
RESPONDENT IN PROVIDING FOR PERSONAL NEEDS AND/OR PROPERTY MANAGEMENT.
THE POWERS OF THE GUARDIAN SHALL BE TAILORED TO THE NEEDS OF THE
RESPONDENT.
7. WHERE THE COURT DIRECTS THE APPOINTMENT OF A GUARDIAN PURSUANT TO
THIS SECTION, THE COURT SHALL MAKE THE FOLLOWING FINDINGS OF FACT ON THE
RECORD:
(A) THE RESPONDENT'S FUNCTIONAL LIMITATIONS WHICH IMPAIR THE RESPOND-
ENT'S ABILITY TO PROVIDE FOR PERSONAL AND/OR PROPERTY MANAGEMENT NEEDS;
(B) THE RESPONDENT'S LACK OF UNDERSTANDING AND APPRECIATION OF THE
NATURE AND CONSEQUENCES OF HIS OR HER FUNCTIONAL LIMITATIONS;
(C) THE LIKELIHOOD THAT THE RESPONDENT WILL SUFFER HARM BECAUSE OF THE
RESPONDENT'S FUNCTIONAL LIMITATIONS AND INABILITY TO ADEQUATELY UNDER-
STAND AND APPRECIATE THE NATURE AND CONSEQUENCES OF SUCH FUNCTIONAL
LIMITATIONS;
(D) THE NECESSITY OF THE APPOINTMENT OF A GUARDIAN TO PREVENT SUCH
HARM;
(E) THE SPECIFIC POWERS OF THE GUARDIAN WHICH CONSTITUTE THE LEAST
RESTRICTIVE FORM OF INTERVENTION CONSISTENT WITH THE FINDINGS OF THIS
SUBDIVISION; AND
(F) THE DURATION OF THE APPOINTMENT.
8. IF THE HEARING IS CONDUCTED WITHOUT THE RESPONDENT AND THE COURT
APPOINTS A GUARDIAN, THE ORDER OF APPOINTMENT SHALL SET FORTH THE FACTU-
AL BASIS FOR CONDUCTING THE HEARING WITHOUT THE PRESENCE OF THE RESPOND-
ENT.
9. IF THE HEARING IS CONDUCTED IN THE PRESENCE OF THE RESPONDENT AND
THE RESPONDENT IS NOT REPRESENTED BY COUNSEL, THE COURT SHALL EXPLAIN TO
THE RESPONDENT, ON THE RECORD, THE PURPOSE AND POSSIBLE CONSEQUENCES OF
THE PROCEEDING, THE RIGHT TO BE REPRESENTED BY COUNSEL OF THE RESPOND-
ENT'S OWN CHOICE AND THE RESPONDENT'S RIGHT TO HAVE COUNSEL APPOINTED IF
THE RESPONDENT WISHES TO BE REPRESENTED BY COUNSEL AND IS UNABLE TO
AFFORD ONE, AND SHALL INQUIRE OF THE RESPONDENT WHETHER HE OR SHE WISHES
TO HAVE AN ATTORNEY APPOINTED. IF THE RESPONDENT REFUSES THE ASSISTANCE
OF COUNSEL, THE COURT MAY NEVERTHELESS APPOINT COUNSEL FOR THE PERSON
FROM AMONG THE ATTORNEYS ELIGIBLE FOR SUCH APPOINTMENT PURSUANT TO
A. 8171--A 17
SECTION THIRTY-FIVE OF THE JUDICIARY LAW, IF THE COURT IS NOT SATISFIED
THAT THE RESPONDENT IS CAPABLE OF MAKING AN INFORMED DECISION REGARDING
THE APPOINTMENT OF COUNSEL. THE APPOINTMENT OF SUCH COUNSEL SHALL BE AT
NO COST TO THE PETITIONER. THE COURT SHALL ENSURE THAT THE INDIVIDUAL'S
COUNSEL, WHETHER IT BE THE SERVICE OR APPOINTED COUNSEL, HAS DEMON-
STRATED EXPERIENCE WITH AND KNOWLEDGE OF REPRESENTING INDIVIDUALS WITH
DEVELOPMENTAL DISABILITIES.
10. THE COURT SHALL DIRECT THAT A DECREE BE ENTERED DETERMINING THE
RIGHTS OF THE PARTIES.
11. THE ORDER AND JUDGMENT MUST BE ENTERED AND SERVED WITHIN TEN DAYS
OF THE SIGNING OF THE ORDER.
12. A COPY OF THE ORDER AND DECREE SHALL BE PERSONALLY SERVED UPON AND
EXPLAINED TO THE RESPONDENT IN A MANNER WHICH THE RESPONDENT CAN REASON-
ABLY BE EXPECTED TO UNDERSTAND BY THE COUNSEL FOR THE PERSON, OR BY THE
GUARDIAN OR THE GUARDIAN AD LITEM.
§ 9. The surrogate's court procedure act is amended by adding a new
section 1754-a to read as follows:
§ 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 AND
SHALL AFFORD THE PERSON WITH A DEVELOPMENTAL DISABILITY THE GREATEST
AMOUNT OF INDEPENDENCE AND SELF-DETERMINATION, 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 AFFORD THE
PERSON WITH A DEVELOPMENTAL DISABILITY THE GREATEST AMOUNT OF INDEPEND-
ENCE AND SELF-DETERMINATION, AND 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
HIMSELF OR HERSELF.
§ 10. Section 1755 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 1755. Modification order
1. Any person [who is intellectually disabled or person who is devel-
opmentally disabled] WITH A DEVELOPMENTAL DISABILITY eighteen years of
age or older, or any person on behalf of any person [who is intellectu-
ally disabled or person who is developmental disabled] WITH A DEVELOP-
MENTAL DISABILITY for whom a guardian has been appointed, may apply to
the court [having jurisdiction over the guardianship order] PURSUANT TO
SECTION SEVENTEEN HUNDRED FIFTY-ONE-A OF THIS ARTICLE, requesting
modification of such order in order to protect the [person who is intel-
A. 8171--A 18
lectually disabled's, or person who is developmentally disabled's]
PERSON WITH A DEVELOPMENTAL DISABILITY'S financial situation and/or his
or her personal interests.
2. The court [may] SHALL, upon receipt of any such request to modify
the guardianship order, appoint THE MENTAL HYGIENE LEGAL SERVICE,
ASSIGNED COUNSEL, OR a guardian ad litem, AS PROVIDED IN PARAGRAPHS (A)
THROUGH (F) OF SUBDIVISION ONE OF SECTION SEVENTEEN HUNDRED FIFTY-FOUR
OF THIS ARTICLE. The court shall so modify the guardianship order if in
its judgment THE GUARDIANSHIP IS NO LONGER NEEDED OR the interests of
the guardian are adverse to those of the person [who is intellectually
disabled or person who is developmentally disabled] WITH A DEVELOPMENTAL
DISABILITY or if the interests of justice will be best served including,
but not limited to, facts showing the necessity for protecting the
personal and/or financial interests of the person [who is intellectually
disabled or person who is developmentally disabled] WITH A DEVELOPMENTAL
DISABILITY.
3. TO THE EXTENT THAT RELIEF SOUGHT UNDER THIS SECTION WOULD TERMINATE
THE GUARDIANSHIP OR RESTORE CERTAIN POWERS TO THE PERSON WITH A DEVELOP-
MENTAL DISABILITY, THE BURDEN OF PROOF SHALL BE ON THE PERSON OBJECTING
TO SUCH RELIEF. TO THE EXTENT THAT RELIEF SOUGHT UNDER THIS SECTION
WOULD FURTHER LIMIT THE POWERS OF THE PERSON WITH A DEVELOPMENTAL DISA-
BILITY, THE BURDEN SHALL BE ON THE PERSON SEEKING SUCH RELIEF.
§ 11. Section 1756 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 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
person [who is intellectually disabled or person who is developmentally
disabled] WITH A DEVELOPMENTAL DISABILITY for whom an application for
guardianship is made is eighteen years of age or older and is wholly or
substantially self-supporting by means of his or her wages or earnings
from employment, the court is authorized and empowered to appoint a
limited guardian of the property of such person [who is intellectually
disabled or person who is developmentally disabled] WITH A DEVELOPMENTAL
DISABILITY who shall receive, manage, disburse and account for only such
property of said person [who is intellectually disabled or person who is
developmentally disabled] WITH A DEVELOPMENTAL DISABILITY as shall be
received from other than the wages or earnings of said person.
The person [who is intellectually disabled or person who is develop-
mentally disabled] 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 authorized 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 SEVENTEEN
HUNDRED FIFTY-ONE AND SEVENTEEN HUNDRED FIFTY-TWO OF THIS ARTICLE OR
UPON A PETITION FILED PURSUANT TO THIS SECTION IN A SIMPLIFIED FORMAT TO
BE ESTABLISHED BY THE OFFICE OF COURT ADMINISTRATION 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-PUR-
A. 8171--A 19
POSE GUARDIAN OF THE PERSON AND/OR PROPERTY TO EFFECTUATE SUCH A DECI-
SION OR TRANSITION. IN ANY SUCH CASE, THE PROVISIONS OF SECTION SEVEN-
TEEN HUNDRED FIFTY-FOUR OF THIS ARTICLE 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. THE NATURE AND DURA-
TION OF THE GUARDIANSHIP MUST BEAR A REASONABLE RELATION TO THE PURPOSE
FOR WHICH THE PERSON IS APPOINTED A GUARDIAN.
§ 12. Section 1757 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 1757. Standby guardian of a person [who is intellectually disabled or
person who is developmentally disabled] WITH A DEVELOPMENTAL
DISABILITY
1. Upon application, a standby guardian of the person or property or
both of a person [who is intellectually disabled or person who is devel-
opmentally disabled] WITH A DEVELOPMENTAL DISABILITY may be appointed by
the court. ANY SUCH APPLICATION 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
conduct a hearing pursuant to section seventeen hundred fifty-four of
this article upon petition by anyone on behalf of the person [who is
intellectually disabled or person who is developmentally disabled] WITH
A DEVELOPMENTAL DISABILITY or the person [who is intellectually disabled
or person who is developmentally disabled] WITH A DEVELOPMENTAL DISABIL-
ITY 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 person [who is intellectually
disabled or person who is developmentally disabled] 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
A. 8171--A 20
order pursuant to section seventeen hundred fifty-five of this article
is filed.
§ 13. Subdivision 2 of section 1758 of the surrogate's court procedure
act, as amended by chapter 198 of the laws of 2016, 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
person [who is intellectually disabled or person who is developmentally
disabled] WITH A DEVELOPMENTAL DISABILITY for whom such guardian shall
have been appointed, to take of its own motion or to entertain and adju-
dicate such steps and proceedings relating to such guardian, standby, or
alternate guardianship as may be deemed necessary or proper for the
welfare of such person [who is intellectually disabled or person who is
developmentally disabled] WITH A DEVELOPMENTAL DISABILITY.
§ 14. Section 1759 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 1759. Duration of guardianship
1. Such guardianship shall not terminate at the age of majority or
marriage of such person [who is intellectually disabled or person who is
developmentally disabled] 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
person [who is intellectually disabled or person who is developmentally
disabled] WITH A DEVELOPMENTAL 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 guardi-
anship order modified, dissolved or otherwise amended. Upon such a peti-
tion for review, the court shall conduct a hearing pursuant to section
seventeen hundred fifty-four of this article, AND SHALL APPLY ALL APPLI-
CABLE STANDARDS OUTLINED IN THIS ARTICLE, INCLUDING THOSE OUTLINED IN
SECTIONS SEVENTEEN HUNDRED FIFTY, SEVENTEEN HUNDRED FIFTY-FIVE, SEVEN-
TEEN HUNDRED FIFTY-SIX AND SEVENTEEN HUNDRED FIFTY-SEVEN OF THIS
ARTICLE.
3. Upon marriage of such person [who is intellectually disabled or
person who is developmentally disabled] WITH A DEVELOPMENTAL DISABILITY
for whom such a guardian has been appointed, the court shall, upon
request of the person [who is intellectually disabled or person who is
developmentally disabled] WITH A DEVELOPMENTAL DISABILITY, spouse, or
any other person acting on behalf of the person [who is intellectually
disabled or person who is developmentally disabled] WITH A DEVELOPMENTAL
DISABILITY, review the need, if any, to modify, dissolve or otherwise
amend the guardianship order including, but not limited to, the appoint-
ment of the spouse as standby guardian. The court, in its discretion,
may conduct such review pursuant to [section] THE STANDARDS LAID OUT IN
SECTIONS SEVENTEEN HUNDRED FIFTY,seventeen hundred fifty-four, SEVENTEEN
HUNDRED FIFTY-FIVE, SEVENTEEN HUNDRED FIFTY-SIX AND SEVENTEEN HUNDRED
FIFTY SEVEN of this article.
§ 15. Section 1760 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 1760. Corporate guardianship
A. 8171--A 21
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 a person [who is intellectually
disabled or person who is developmentally disabled] WITH A DEVELOPMENTAL
DISABILITY may be appointed as the guardian of the person only of such
person [who is intellectually disabled or person who is developmentally
disabled] WITH A DEVELOPMENTAL DISABILITY.
§ 16. Section 1761 of the surrogate's court procedure act, as amended
by chapter 198 of the laws of 2016, is amended to read as follows:
§ 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 effect as if an "infant", as therein
referred to, were a "person [who is intellectually disabled" or "person
who is developmentally disabled"] WITH A DEVELOPMENTAL DISABILITY" as
herein defined, and a "guardian" as therein referred to were a "guardian
of the person [who is intellectually disabled or a "guardian of a person
who is developmentally disabled"] WITH A DEVELOPMENTAL DISABILITY" as
herein provided for.
§ 17. The surrogate's court procedure act is amended by adding a new
section 1762 to read as follows:
§ 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 SIMPLIFIED 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 SIMPLIFIED REPORT SHALL BE ON A FORM PRESCRIBED BY THE OFFICE
OF COURT ADMINISTRATION AND SHALL BE REVIEWED BY THE COURT.
3. A CORPORATE GUARDIAN APPOINTED PURSUANT TO SECTION SEVENTEEN
HUNDRED SIXTY 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 BY THE OFFICE
OF COURT ADMINISTRATION 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.
§ 18. Paragraph a of subdivision 1 of section 35 of the judiciary
law, as amended by chapter 817 of the laws of 1986, is amended to read
as follows:
a. When a court orders a hearing in a proceeding upon a writ of habeas
corpus to inquire into the cause of detention of a person in custody in
a state institution, or when it orders a hearing in a civil proceeding
to commit or transfer a person to or retain him in a state institution
when such person is alleged to be mentally ill, mentally defective or a
narcotic addict, or when it orders a hearing for the commitment of the
guardianship and custody of a child to an authorized agency by reason of
the mental illness or [mental retardation] DEVELOPMENTAL DISABILITY of a
parent, OR WHEN IT ORDERS A HEARING FOR GUARDIANSHIP UNDER ARTICLE
SEVENTEEN-A OF THE SURROGATE'S COURT PROCEDURE ACT, or when it orders a
A. 8171--A 22
hearing to determine whether consent to the adoption of a child shall be
required of a parent who is alleged to be mentally ill or [mentally
retarded] HAVE A DEVELOPMENTAL DISABILITY, or when it orders a hearing
to determine the best interests of a child when the parent of the child
revokes a consent to the adoption of such child and such revocation is
opposed or in any adoption or custody proceeding if it determines that
assignment of counsel in such cases is mandated by the constitution of
this state or of the United States, the court may assign counsel to
represent such person if it is satisfied that he is financially unable
to obtain counsel. Upon an appeal taken from an order entered in any
such proceeding, the appellate court may assign counsel to represent
such person upon the appeal if it is satisfied that he is financially
unable to obtain counsel.
§ 19. Subdivision 4 of section 35 of the judiciary law, as amended by
chapter 706 of the laws of 1975 and as renumbered by chapter 315 of the
laws of 1985, is amended to read as follows:
4. In any proceeding described in paragraph (a) of subdivision one of
this section, when a person is alleged to BE A PERSON WITH A DEVELOP-
MENTAL DISABILITY IN NEED OF A GUARDIAN PURSUANT TO ARTICLE SEVENTEEN-A
OF THE SURROGATE'S COURT PROCEDURE ACT, be mentally ill, mentally defec-
tive or a narcotic addict, the court which ordered the hearing may
appoint no more than two psychiatrists, certified psychologists or
physicians to examine and testify at the hearing upon the condition of
such person. A psychiatrist, psychologist or physician so appointed
shall, upon completion of his services, receive reimbursement for
expenses reasonably incurred and reasonable compensation for such
services, to be fixed by the court. Such compensation shall not exceed
two hundred dollars if one psychiatrist, psychologist or physician is
appointed, or an aggregate sum of three hundred dollars if two psychia-
trists, psychologists or physicians are appointed, except that in
extraordinary circumstances the court may provide for compensation in
excess of the foregoing limits.
§ 20. This act shall take effect on the one hundred eightieth day
after it shall have become a law.