Senate Bill S3523A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3523--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2021
                                ___________
 
 Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Mental Health -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 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.
              

                                                            LBD00008-05-1

 S. 3523--A                          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] SIXTY-FIVE  and  two  thousand
 nine  hundred eighty-one of the public health law, if known to the peti-
 tioner; 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.  Paragraph 1 of subdivision (d) of section 81.19  of  the  mental
 hygiene  law, as added by chapter 698 of the laws of 1992, is amended to
 read as follows:
   1. any appointment or delegation made by  the  person  alleged  to  be
 incapacitated  in  accordance  with  the  provisions of [section 5-1501,
 5-1601 or 5-1602] TITLE FIFTEEN OF ARTICLE FIVE  of  the  general  obli-
 gations  law  and  sections two thousand nine hundred sixty-five and two
 thousand nine hundred eighty-one of the public health law;
   § 8. 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:

 S. 3523--A                          3
 
   [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:
   §  9.  Paragraph  2  of subdivision (b) of section 81.22 of the mental
 hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
 read as follows:
   2.  revoke  any  appointment  or  delegation made by the incapacitated
 person pursuant to [sections 5-1501, 5-1601 and 5-1602] TITLE FIFTEEN OF
 ARTICLE FIVE of the general obligations law, sections two thousand  nine
 hundred  sixty-five  and  two  thousand  nine  hundred eighty-one of the
 public health law, or any living will.
   § 10. Subdivision (d) of section 81.29 of the mental hygiene  law,  as
 amended  by  chapter  176  of  the  laws  of 2008, is amended to read as
 follows:
   (d) If the court determines  that  the  person  is  incapacitated  and
 appoints  a  guardian, the court may modify, amend, or revoke any previ-
 ously executed appointment, power, or delegation under [section  5-1501,
 5-1505,  or  5-1506]  TITLE FIFTEEN OF ARTICLE FIVE of the general obli-
 gations law or section two  thousand  nine  hundred  sixty-five  of  the
 public  health  law,  or section two thousand nine hundred eighty-one of
 the public health law notwithstanding section two thousand nine  hundred
 ninety-two  of  the  public  health law, or any contract, conveyance, or
 disposition during lifetime or to take effect upon death,  made  by  the
 incapacitated  person  prior  to  the appointment of the guardian if the
 court finds that the previously executed appointment, power, delegation,
 contract, conveyance, or disposition during lifetime or to  take  effect
 upon  death, was made while the person was incapacitated or if the court
 determines that there has been a breach of fiduciary duty by the  previ-
 ously  appointed  agent. In such event, the court shall require that the
 agent account to the guardian. The court shall not, however,  invalidate
 or  revoke  a  will  or  a codicil of an incapacitated person during the
 lifetime of such person.
   § 11. This act shall take effect on  the  one  hundred  eightieth  day
 after  it shall have become a law, provided that, effective immediately,
 any rules and regulations necessary to implement the provisions of  this
 act on its effective date are authorized and directed to be completed on
 or before such date.