Bill Text: NY A03461 | 2015-2016 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Provides for an appointment of a guardian for personal needs or property management; provides that the order of appointment shall identify the persons entitled to receive notice of the incapacitated person's death, funeral arrangements, receive notice of the incapacitated person's transfer to a medical facility and persons entitled to visit such person.

Spectrum: Partisan Bill (Democrat 13-0)

Status: (Passed) 2016-07-21 - signed chap.98 [A03461 Detail]

Download: New_York-2015-A03461-Amended.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        3461--A
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 23, 2015
                                      ___________
       Introduced  by  M.  of  A. MAGNARELLI, RIVERA, STIRPE, CLARK, GOTTFRIED,
         ROBERTS, CRESPO, GALEF, ROBINSON -- Multi-Sponsored by  --  M.  of  A.
         GLICK, MAGEE, MARKEY, SIMON -- read once and referred to the Committee
         on  Judiciary -- committee discharged, bill amended, ordered reprinted
         as amended and recommitted to said committee
       AN ACT to amend the mental hygiene law and the civil  practice  law  and
         rules,  in relation to enacting "Peter Falk's law" relating to guardi-
         anship duties and visitation claims
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  This act shall be known and may be cited as "Peter Falk's
    2  law".
    3    S 2. Subdivision (a) of section 81.20 of the  mental  hygiene  law  is
    4  amended by adding a new paragraph 8 to read as follows:
    5    8. A GUARDIAN SHALL INFORM THE RELATIVES, INCLUDING BUT NOT LIMITED TO
    6  THE CHILDREN, OF AN ELDER OR DEPENDENT INCAPACITATED ADULT WHENEVER THEY
    7  ARE  ADMITTED TO A MEDICAL FACILITY FOR ACUTE CARE FOR A PERIOD OF THREE
    8  DAYS OR MORE OR IN THE EVENT OF DEATH. IN THE CASE OF DEATH, THE GUARDI-
    9  AN SHALL INFORM THE  RELATIVES  OF  ANY  FUNERAL  ARRANGEMENTS  AND  THE
   10  LOCATION OF THE INCAPACITATED PERSON'S FINAL RESTING PLACE.
   11    S  3.  The article heading of article 12 of the civil practice law and
   12  rules, as amended by chapter 115 of the laws of 1981, is amended to read
   13  as follows:
   14                  INFANTS, INCOMPETENTS [AND], CONSERVATEES
   15                               AND THE ELDERLY
   16    S 4. The civil practice law and rules  is  amended  by  adding  a  new
   17  section 1212 to read as follows:
   18    S  1212. ELDERLY VISITATION CLAIMS. (A) PETITION TO THE SUPREME COURT.
   19  A PETITION MAY BE BROUGHT FOR A VISITATION ORDER TO ENJOIN A  RESPONDENT
   20  FROM KEEPING A PROPOSED VISITEE IN ISOLATION FROM CONTACT WITH THE PETI-
   21  TIONER.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07225-05-5
       A. 3461--A                          2
    1    (B) DEFINITIONS. FOR THE PURPOSES OF THIS SECTION:
    2    1. "ELDER" SHALL HAVE THE SAME MEANING AS PARAGRAPH (B) OF SUBDIVISION
    3  ONE OF SECTION TWO HUNDRED FOURTEEN OF THE ELDER LAW.
    4    2.  "DEPENDENT  ADULT" SHALL MEAN ANY PERSON BETWEEN THE AGES OF EIGH-
    5  TEEN AND SIXTY WHO RESIDES IN THIS STATE AND WHO HAS PHYSICAL OR  MENTAL
    6  LIMITATIONS  THAT RESTRICT HIS OR HER ABILITY TO CARRY OUT NORMAL ACTIV-
    7  ITIES OR TO PROTECT HIS OR HER RIGHTS, INCLUDING, BUT  NOT  LIMITED  TO,
    8  PERSONS  WHO HAVE PHYSICAL OR DEVELOPMENTAL DISABILITIES, OR WHOSE PHYS-
    9  ICAL OR MENTAL ABILITIES HAVE DIMINISHED BECAUSE OF AGE.
   10    3. "ISOLATION" SHALL MEAN:
   11    (I) ACTS INTENTIONALLY COMMITTED FOR THE PURPOSE  OF  PREVENTING,  AND
   12  THAT DO SERVE TO PREVENT, AN ELDER OR DEPENDENT ADULT FROM RECEIVING HIS
   13  OR HER MAIL OR TELEPHONE CALLS.
   14    (II)  TELLING A CALLER OR PROSPECTIVE VISITOR THAT AN ELDER OR DEPEND-
   15  ENT ADULT IS NOT PRESENT, OR DOES NOT WISH TO TALK WITH THE  CALLER,  OR
   16  DOES  NOT WISH TO MEET WITH THE VISITOR WHERE THE STATEMENT IS FALSE, IS
   17  CONTRARY TO THE EXPRESS WISHES OF THE  ELDER  OR  THE  DEPENDENT  ADULT,
   18  WHETHER  HE  OR  SHE IS COMPETENT OR NOT, AND IS MADE FOR THE PURPOSE OF
   19  PREVENTING THE ELDER OR DEPENDENT ADULT FROM HAVING CONTACT WITH FAMILY,
   20  FRIENDS, OR CONCERNED PERSONS.
   21    (III) PHYSICAL RESTRAINT OF AN  ELDER  OR  DEPENDENT  ADULT,  FOR  THE
   22  PURPOSE  OF  PREVENTING  THE  ELDER OR DEPENDENT ADULT FROM MEETING WITH
   23  VISITORS.
   24    4."PETITIONER" SHALL MEAN A PERSON WHO IS  A  RELATIVE  IN  THE  FIRST
   25  DEGREE OF THE PROPOSED VISITEE.
   26    5.  "PROPOSED VISITEE" SHALL MEAN THE ELDER OR DEPENDENT ADULT, WHO IS
   27  UNDER THE CARE OR CUSTODY OF THE RESPONDENT,  TO  BE  PROTECTED  BY  THE
   28  VISITATION  ORDER  AND,  IF THE COURT GRANTS THE PETITION, THE PROTECTED
   29  PERSON.
   30    6. "RESPONDENT" SHALL MEAN THE PERSON WHO IS ALLEGED TO  BE  ISOLATING
   31  THE  PROPOSED  VISITEE,  AND  IF THE PETITION IS GRANTED, THE RESTRAINED
   32  PERSON.
   33    7. "VISITATION" SHALL MEAN ANY IN-PERSON MEETING  BETWEEN  A  PROPOSED
   34  VISITEE AND THE PETITIONER.
   35    8. "VISITATION ORDER" SHALL MEAN AN ORDER ENJOINING A PARTY FROM KEEP-
   36  ING  THE  PROPOSED VISITEE IN ISOLATION FROM CONTACT WITH THE PETITIONER
   37  THAT IS ISSUED BY A COURT AFTER NOTICE AND HEARING.
   38    (C) ORDER. 1. AN ORDER MAY BE ISSUED UNDER THIS  SECTION  TO  RESTRAIN
   39  THE  RESPONDENT  FOR THE PURPOSE OF PREVENTING A RECURRENCE OF ISOLATION
   40  IF THE PETITIONER HAS SHOWN BY A PREPONDERANCE OF THE EVIDENCE,  TO  THE
   41  SATISFACTION  OF  THE  COURT,  REASONABLE PROOF OF A PAST ACT OR ACTS OF
   42  ISOLATION OF THE PROPOSED VISITEE FROM CONTACT WITH THE PETITIONER,  AND
   43  UPON  A SHOWING THAT THE PROPOSED VISITEE DESIRES CONTACT WITH THE PETI-
   44  TIONER OR THAT VISITATION IS IN THE BEST INTERESTS OF THE PROPOSED VISI-
   45  TEE.
   46    2. THE ORDER MAY SPECIFY THE FREQUENCY, TIME, PLACE, AND  LOCATION  OF
   47  VISITATION.
   48    3.  IN  DECIDING WHETHER VISITATION WITH THE PETITIONER IS IN THE BEST
   49  INTEREST OF THE PROPOSED VISITEE THE COURT MAY CONSIDER WHETHER THE BEST
   50  INTEREST OF THE PROPOSED VISITEE REQUIRES THAT  ANY  VISITATION  BY  THE
   51  PETITIONER  BE  LIMITED TO SITUATIONS IN WHICH A THIRD PERSON, SPECIFIED
   52  BY THE COURT, IS PRESENT, OR WHETHER VISITATION SHALL  BE  SUSPENDED  OR
   53  DENIED.  THE  PETITIONER,  PROPOSED VISITEE, OR RESPONDENT MAY SUBMIT TO
   54  THE COURT THE NAME OF A PERSON WHO MAY BE SUITABLE TO BE PRESENT  DURING
   55  VISITATION.
       A. 3461--A                          3
    1    4.  IN  DECIDING WHETHER VISITATION WITH THE PETITIONER IS IN THE BEST
    2  INTEREST OF THE PROPOSED VISITEE, THE COURT  SHALL  CONSIDER  ANY  PRIOR
    3  PROTECTIVE ORDERS ISSUED AGAINST THE PETITIONER.
    4    5.  THE COURT SHALL NOT ISSUE AN ORDER UNLESS THE PROPOSED VISITEE HAS
    5  EXPRESSED A DESIRE FOR VISITATION. THE COURT MAY APPOINT A COURT  INVES-
    6  TIGATOR TO DETERMINE WHETHER THE PROPOSED VISITEE HAS EXPRESSED A DESIRE
    7  FOR VISITATION.
    8    6.  THE  COURT  SHALL  ISSUE  AN ORDER ONLY AFTER NOTICE AND A HEARING
    9  UNDER THIS SECTION, AND THE COURT SHALL NOT  ISSUE  AN  EX  PARTE  ORDER
   10  UNDER THIS SECTION.
   11    7.  IN THE DISCRETION OF THE COURT, AN ORDER ISSUED AFTER NOTICE AND A
   12  HEARING UNDER THIS SECTION MAY HAVE A DURATION OF  NOT  MORE  THAN  FIVE
   13  YEARS,  SUBJECT  TO  TERMINATION OR MODIFICATION BY FURTHER ORDER OF THE
   14  COURT EITHER ON WRITTEN STIPULATION FILED  WITH  THE  COURT  OR  ON  THE
   15  MOTION  OF  A  PARTY. THESE ORDERS MAY BE RENEWED, UPON THE REQUEST OF A
   16  PARTY, EITHER FOR FIVE YEARS OR PERMANENTLY, WITHOUT A  SHOWING  OF  ANY
   17  FURTHER  ISOLATION  SINCE THE ISSUANCE OF THE ORIGINAL ORDER, SUBJECT TO
   18  TERMINATION OR MODIFICATION BY FURTHER ORDER  OF  THE  COURT  EITHER  ON
   19  WRITTEN  STIPULATION  FILED  WITH THE COURT OR ON THE MOTION OF A PARTY.
   20  THE REQUEST FOR RENEWAL MAY BE BROUGHT AT  ANY  TIME  WITHIN  THE  THREE
   21  MONTHS  BEFORE  THE  EXPIRATION  OF THE ORDERS. THE FAILURE TO STATE THE
   22  EXPIRATION DATE ON THE FACE OF THE FORM CREATES AN ORDER WITH A DURATION
   23  OF THREE YEARS FROM THE DATE OF ISSUANCE.
   24    (D) REPRESENTATION/APPEARANCE. THE  COURT  MAY  REQUIRE  THE  PROPOSED
   25  VISITEE, OR THE PROPOSED VISITEE'S ATTORNEY TO APPEAR AT THE HEARING. IF
   26  THE  PROPOSED VISITEE DOES NOT HAVE AN ATTORNEY, THE COURT SHALL APPOINT
   27  AN ATTORNEY TO REPRESENT THE PROPOSED VISITEE'S INTERESTS.
   28    (E) THE COURT SHALL SCHEDULE AN EVIDENTIARY HEARING WITHIN SIXTY  DAYS
   29  FROM  THE DATE THAT THE PETITION IS FILED. THE COURT MAY GRANT A CONTIN-
   30  UANCE OF THE HEARING FOR GOOD CAUSE.
   31    (F) THE RESPONDENT AND THE PROPOSED VISITEE SHALL EACH  BE  PERSONALLY
   32  SERVED  WITH  A  COPY OF THE PETITION FOR VISITATION ORDER AND NOTICE OF
   33  THE HEARING AT LAST TWENTY-ONE DAYS BEFORE THE HEARING DATE.
   34    (G) THE NOTICE OF THE HEARING SHALL NOTIFY THE  PROPOSED  VISITEE  AND
   35  THE RESPONDENT THAT FOLLOWING THE HEARING, THE COURT MAY MAKE ORDERS NOT
   36  TO  EXCEED  FIVE  YEARS FROM THE HEARING DATE. THE NOTICE OF THE HEARING
   37  SHALL ALSO NOTIFY THE PROPOSED VISITEE WHETHER THE COURT  REQUIRES  THAT
   38  THE  PROPOSED  VISITEE  APPEAR  AT  THE HEARING, AND HOW TO REQUEST THAT
   39  COUNSEL BE APPOINTED IF THE PROPOSED VISITEE IS UNABLE TO  RETAIN  COUN-
   40  SEL.
   41    (H)  THE  RESPONDENT  MAY  FILE  AND SERVE A RESPONSE THAT EXPLAINS OR
   42  DENIES THE ALLEGED ISOLATION AT LEAST TEN DAYS BEFORE THE HEARING DATE.
   43    (I) THE COURT MAY, IN ITS DISCRETION, AWARD THE  PREVAILING  PARTY  IN
   44  ANY  ACTION  BROUGHT UNDER THIS SECTION COURT COSTS AND ATTORNEY'S FEES,
   45  IF ANY. IN NO EVENT, SHALL THE PROPOSED VISITEE BY REQUIRED TO  PAY  THE
   46  COURT  COSTS OR ATTORNEY'S FEES OF EITHER THE PREVAILING OR NON-PREVAIL-
   47  ING PARTY.
   48    S 5. This act shall take effect immediately.