S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1350
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2017
                                ___________
 
 Introduced  by M. of A. WEINSTEIN, GOTTFRIED, LENTOL, ZEBROWSKI, COLTON,
   ROSENTHAL, TITUS, ABINANTI,  TITONE,  SKOUFIS,  SEAWRIGHT,  JAFFEE  --
   Multi-Sponsored  by  --  M. of A. BLAKE, COOK, GALEF, GLICK, PICHARDO,
   STIRPE -- read once and referred to the Committee on Judiciary
 
 AN ACT to amend the mental hygiene law, in relation to  requiring  peti-
   tioners  for  appointment  of a guardian to identify other persons who
   may be able to manage the affairs of an incapacitated person
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision (e) of section 81.03 of the mental hygiene law,
 as  amended  by  chapter  438 of the laws of 2004, is amended to read as
 follows:
   (e) "available resources" means resources such as, but not limited to,
 ALL PERSONS IDENTIFIED IN SUBPARAGRAPHS (I) THROUGH  (IV)  OF  PARAGRAPH
 ONE  OF SUBDIVISION (G) OF SECTION 81.07 OF THIS ARTICLE, visiting nurs-
 es, homemakers, home health  aides,  adult  day  care  and  multipurpose
 senior citizen centers, powers of attorney, health care proxies, trusts,
 representative and protective payees, and residential care facilities.
   §  2.  Paragraph  7  of subdivision (a) of section 81.06 of the mental
 hygiene law, as amended by chapter 438 of the laws of 2004,  is  amended
 to read as follows:
   7. the chief executive officer, or the designee of the chief executive
 officer,  of  a facility in which the person alleged to be incapacitated
 is a patient or resident, EXCEPT  FOR  WHERE  THE  PETITION  IS  BROUGHT
 PRIMARILY FOR PURPOSES OF BILL COLLECTION OR RESOLVING A BILL COLLECTION
 DISPUTE.   PROVIDED, HOWEVER, WHERE THERE IS NO OTHER LEGALLY AUTHORIZED
 OR OTHERWISE AVAILABLE RESOURCE, THE CHIEF EXECUTIVE OFFICER, OR  DESIG-
 NEE  OF  THE CHIEF EXECUTIVE OFFICER, OF SUCH FACILITY DESCRIBED IN THIS
 ARTICLE MAY FILE A PETITION UNDER THIS ARTICLE WHERE A GUARDIAN IS NEED-
 ED TO APPLY FOR OR ENGAGE IN PLANNING NECESSARY TO ESTABLISH ELIGIBILITY
 FOR MEDICAL ASSISTANCE AS PROVIDED UNDER TITLE ELEVEN OF ARTICLE FIVE OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02869-02-7

 A. 1350                             2
 
 THE SOCIAL SERVICES LAW FOR THE BENEFIT OF  THE  PERSON  ALLEGED  TO  BE
 INCAPACITATED.
   §  3.  Subparagraph (iii) of paragraph 1 of subdivision (g) of section
 81.07 of the mental hygiene law, as amended by chapter 438 of  the  laws
 of 2004, is amended to read as follows:
   (iii)  any  person  or persons designated by the alleged incapacitated
 person with authority pursuant to [sections 5-1501, 5-1505, and  5-1506]
 TITLE  FIFTEEN  OF  ARTICLE  FIVE  of  the  general  obligations law, or
 sections two thousand nine hundred five and two  thousand  nine  hundred
 eighty-one of the public health law, if known to the petitioner; and
   §  4.  Paragraph  14 of subdivision (a) of section 81.08 of the mental
 hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
 read as follows:
   14.  the available resources, if any, that have been considered by the
 petitioner, THE STEPS TAKEN TO IDENTIFY  AVAILABLE  RESOURCES,  and  the
 petitioner's  opinion as to [their sufficiency and reliability] WHY SUCH
 RESOURCES ARE NOT SUFFICIENT OR RELIABLE  ENOUGH  TO  MEET  THE  ALLEGED
 INCAPACITATED PERSON'S NEEDS WITHOUT THE APPOINTMENT OF A GUARDIAN;
   §  5.  Paragraph  15 of subdivision (a) of section 81.08 of the mental
 hygiene law is renumbered paragraph 18, and three new paragraphs 15,  16
 and 17 are added to read as follows:
   15.  FOR  ALL  AVAILABLE  RESOURCES  CONSIDERED BY THE PETITIONER, THE
 NAME, ADDRESS, TELEPHONE NUMBER ALONG WITH ANY  OTHER  CONTACT  INFORMA-
 TION, RELATIONSHIP TO THE ALLEGED INCAPACITATED PERSON AND ANY DOCUMENTS
 KNOWN TO THE PETITIONER THAT GRANT THE AVAILABLE RESOURCE LEGAL AUTHORI-
 TY  TO  MANAGE  THE  PERSONAL,  MEDICAL  AND/OR FINANCIAL AFFAIRS OF THE
 ALLEGED INCAPACITATED PERSON;
   16. IF THE PETITIONER SEEKS TO REVOKE ANY LAWFULLY  EXECUTED  APPOINT-
 MENT  OR DELEGATION MADE BY THE ALLEGED INCAPACITATED PERSON PURSUANT TO
 TITLE FIFTEEN OF ARTICLE FIVE OF THE GENERAL  OBLIGATIONS  LAW,  SECTION
 TWENTY-NINE  HUNDRED SIXTY-FIVE OR TWENTY-NINE HUNDRED EIGHTY-ONE OF THE
 PUBLIC HEALTH LAW, OR ANY LIVING WILL,  THE  PETITION  SHALL  SET  FORTH
 SPECIFIC REASONS FOR THE REVOCATION;
   17. AN AFFIRMATIVE STATEMENT THAT THE PETITION IS NOT BROUGHT PRIMARI-
 LY  FOR  THE  PURPOSE  OF BILL COLLECTION OR RESOLVING A BILL COLLECTION
 DISPUTE;
   § 6. Subparagraph (xi) of paragraph 5 of subdivision  (c)  of  section
 81.09  of  the mental hygiene law, as amended by chapter 438 of the laws
 of 2004, is amended to read as follows;
   (xi) has the person alleged to be incapacitated made  any  appointment
 or  delegation  pursuant  to  [section  5-1501, 5-1505, or 5-1506] TITLE
 FIFTEEN OF ARTICLE FIVE of the  general  obligations  law,  section  two
 thousand nine hundred sixty-five or two thousand nine hundred eighty-one
 of the public health law, or a living will;
   §  7.  Subdivision  (c) of section 81.16 of the mental hygiene law, is
 amended by adding a new paragraph 7 to read as follows:
   7. THE COURT SHALL NOT AUTHORIZE A GUARDIAN TO COMPROMISE OR SATISFY A
 CREDITOR'S CLAIM INVOKED BY THE PETITIONER AGAINST THE PERSON ALLEGED TO
 BE INCAPACITATED.
   § 8. Paragraph 1 of subdivision (d) of section  81.19  of  the  mental
 hygiene  law, as added by chapter 698 of the laws of 1992, is amended to
 read as follows:
   1. any appointment or delegation made by  the  person  alleged  to  be
 incapacitated  in  accordance  with  the  provisions of [section 5-1501,
 5-1601 or 5-1602] TITLE FIFTEEN OF ARTICLE FIVE  of  the  general  obli-

 A. 1350                             3
 
 gations  law  and  sections two thousand nine hundred sixty-five and two
 thousand nine hundred eighty-one of the public health law;
   §  9. The opening paragraph of subdivision (e) of section 81.19 of the
 mental hygiene law, as added by chapter 698 of  the  laws  of  1992,  is
 amended to read as follows:
   [Unless  the court finds that no other person or corporation is avail-
 able or willing to act as guardian, or to provide  needed  services  for
 the incapacitated person, the] THE following persons or corporations may
 not serve as guardian:
   §  10.  Paragraph  2 of subdivision (b) of section 81.22 of the mental
 hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
 read as follows:
   2.  revoke  any  appointment  or  delegation made by the incapacitated
 person pursuant to [sections 5-1501, 5-1601 and 5-1602] TITLE FIFTEEN OF
 ARTICLE FIVE of the general obligations law, sections two thousand  nine
 hundred  sixty-five  and  two  thousand  nine  hundred eighty-one of the
 public health law, or any living will.
   § 11. Subdivision (d) of section 81.29 of the mental hygiene  law,  as
 amended  by  chapter  176  of  the  laws  of 2008, is amended to read as
 follows:
   (d) If the court determines  that  the  person  is  incapacitated  and
 appoints  a  guardian, the court may modify, amend, or revoke any previ-
 ously executed appointment, power, or delegation under [section  5-1501,
 5-1505,  or  5-1506]  TITLE FIFTEEN OF ARTICLE FIVE of the general obli-
 gations law or section two  thousand  nine  hundred  sixty-five  of  the
 public  health  law,  or section two thousand nine hundred eighty-one of
 the public health law notwithstanding section two thousand nine  hundred
 ninety-two  of  the  public  health law, or any contract, conveyance, or
 disposition during lifetime or to take effect upon death,  made  by  the
 incapacitated  person  prior  to  the appointment of the guardian if the
 court finds that the previously executed appointment, power, delegation,
 contract, conveyance, or disposition during lifetime or to  take  effect
 upon  death, was made while the person was incapacitated or if the court
 determines that there has been a breach of fiduciary duty by the  previ-
 ously  appointed  agent. In such event, the court shall require that the
 agent account to the guardian. The court shall not, however,  invalidate
 or  revoke  a  will  or  a codicil of an incapacitated person during the
 lifetime of such person.
   § 12. This act shall take effect on  the  one  hundred  eightieth  day
 after  it shall have become a law, provided that, effective immediately,
 any rules and regulations necessary to implement the provisions of  this
 act on its effective date are authorized and directed to be completed on
 or before such date.