Bill Text: NY A05840 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to guardianship and health care decisions of persons with developmental disabilities.
Spectrum: Moderate Partisan Bill (Democrat 5-1)
Status: (Introduced - Dead) 2018-01-03 - referred to judiciary [A05840 Detail]
Download: New_York-2017-A05840-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5840 2017-2018 Regular Sessions IN ASSEMBLY February 16, 2017 ___________ Introduced by M. of A. LAVINE -- read once and referred to the Committee on Judiciary AN ACT to amend the surrogate's court procedure act and the judiciary law, in relation to guardianship and health care decisions of persons with developmental disabilities; and to repeal certain provisions of the surrogate's court procedure act relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 1750 of the surrogate's court procedure act, as 2 amended by chapter 198 of the laws of 2016, is amended to read as 3 follows: 4 § 1750. Guardianship of persons [who are intellectually disabled] with 5 developmental disabilities 6 1. When it shall appear to the satisfaction of the court that a person 7 is a person [who is intellectually disabled] with a developmental disa- 8 bility within the meaning of subdivision twenty-two of section 1.03 of 9 the mental hygiene law or a person with traumatic brain injury within 10 the meaning of subdivision one of section two thousand seven hundred 11 forty-one of the public health law, except that no age of origination 12 shall apply for purposes of this article to a person with traumatic head 13 injury, and that such person, as a result of such developmental disabil- 14 ity or traumatic brain injury, exhibits significant impairment of gener- 15 al or specific areas of intellectual functioning and/or adaptive behav- 16 iors in specified domains as enumerated in subdivision eight of section 17 seventeen hundred fifty-two of this article, the court is authorized to 18 appoint a guardian of the person or of the property or of both if such 19 appointment of a guardian or guardians is in the best interest of the 20 person [who is intellectually disabled]. Such appointment shall be made 21 pursuant to the provisions of this article[, provided however that the22provisions of section seventeen hundred fifty-a of this article shallEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08755-02-7A. 5840 2 1not apply to the appointment of a guardian or guardians of a person who2is intellectually disabled.31. For the purposes of this article, a person who is intellectually4disabled is a person who has been certified by one licensed physician5and one licensed psychologist, or by two licensed physicians at least6one of whom is familiar with or has professional knowledge in the care7and treatment of persons with an intellectual disability, having quali-8fications to make such certification, as being incapable to manage him9or herself and/or his or her affairs by reason of intellectual disabili-10ty and that such condition is permanent in nature or likely to continue11indefinitely]. 12 2. Every guardianship entered into pursuant to this article prior to 13 the effective date of this subdivision, including orders and decrees 14 pursuant to section seventeen hundred fifty-seven of this article, shall 15 remain in full force and effect thereafter, except as amended pursuant 16 to section seventeen hundred fifty-five of this article or as ordered by 17 the court; and any such guardianship shall be administered consistent 18 with the substantive and procedural requirements set forth in this arti- 19 cle, except that the provisions of section seventeen hundred six-two of 20 this article shall only apply to guardianships entered into on or after 21 the effective date of this subdivision. Further, guardianships entered 22 into prior to the effective date of the chapter of the laws of two thou- 23 sand seventeen which amended this subdivision, upon petition for amend- 24 ment pursuant to section seventeen hundred fifty-five and section seven- 25 teen hundred fifty-seven of this article, shall not be required to 26 resubmit proof of the continued need for guardianship. 27 3. Every [such certification pursuant to subdivision one of this28section,] order and decree made on or after the effective date of this 29 subdivision, shall include a specific determination by [such physician30and psychologist, or by such physicians,] the issuing court as to wheth- 31 er the person [who is intellectually disabled] has the capacity to make 32 health care decisions, as defined by subdivision three of section twen- 33 ty-nine hundred eighty of the public health law, for himself or herself. 34 A determination that the person [who is intellectually disabled] has the 35 capacity to make health care decisions shall not preclude the appoint- 36 ment of a guardian pursuant to this section to make other decisions on 37 behalf of the person [who is intellectually disabled]. The absence of 38 this determination in the case of guardians appointed prior to [the39effective date of this subdivision] March sixteenth, two thousand three 40 shall not preclude such guardians from making health care decisions. 41 Further, guardians appointed by orders and/or decrees issued prior to 42 the effective date of the chapter of the laws of two thousand seventeen 43 which amended this subdivision shall have authority in all areas, unless 44 otherwise stated in said order or decree. 45 § 2. Section 1750-a of the surrogate's court procedure act is 46 REPEALED. 47 § 3. Section 1750-b of the surrogate's court procedure act, as amended 48 by chapter 198 of the laws of 2016, is amended to read as follows: 49 § 1750-b. Health care decisions for persons [who are intellectually50disabled] with developmental disabilities 51 1. Scope of authority. As used in this section, the term "develop- 52 mental disability" is as defined by subdivision twenty-two of section 53 1.03 of the mental hygiene law and shall also include individuals with 54 traumatic brain injury as defined by subdivision one of section two 55 thousand seven hundred forty-one of the public health law. Unless 56 specifically prohibited by the court after consideration of [the deter-A. 5840 3 1mination, if any, regarding a person who is intellectually disabled's] a 2 person with a developmental disability's capacity to make health care 3 decisions, which is required by section seventeen hundred fifty of this 4 article, the guardian of such person appointed pursuant to section 5 seventeen hundred fifty of this article shall have the authority to make 6 any and all health care decisions, as defined by subdivision six of 7 section twenty-nine hundred eighty of the public health law, on behalf 8 of the person [who is intellectually disabled] with a developmental 9 disability, that such person could make if such person had capacity. 10 Such decisions may include decisions to withhold or withdraw life-sus- 11 taining treatment. For purposes of this section, "life-sustaining treat- 12 ment" means medical treatment, including cardiopulmonary resuscitation 13 and nutrition and hydration provided by means of medical treatment, 14 which is sustaining life functions and without which, according to 15 reasonable medical judgment, the patient will die within a relatively 16 short time period. Cardiopulmonary resuscitation is presumed to be life- 17 sustaining treatment without the necessity of a medical judgment by an 18 attending physician. The provisions of this article are not intended to 19 permit or promote suicide, assisted suicide or euthanasia; accordingly, 20 nothing in this section shall be construed to permit a guardian to 21 consent to any act or omission to which the person [who is intellectual-22ly disabled] with a developmental disability could not consent if such 23 person had capacity. 24 (a) For the purposes of making a decision to withhold or withdraw 25 life-sustaining treatment pursuant to this section, in the case of a 26 person for whom no guardian has been appointed pursuant to [section27seventeen hundred fifty or seventeen hundred fifty-a of] this article, a 28 "guardian" shall also mean a family member of a person who [(i) has29intellectual disability, or (ii)] has a developmental disability, as 30 defined in [section 1.03 of the mental hygiene law, which (A) includes31intellectual disability, or (B) results in a similar impairment of32general intellectual functioning or adaptive behavior so that such33person is incapable of managing himself or herself, and/or his or her34affairs by reason of such developmental disability] this subdivision and 35 that such person, as a result of such developmental disability, exhibits 36 significant impairment of general or specific areas of intellectual 37 functioning and/or adaptive behaviors in specified domains as enumerated 38 in subdivision eight of section seventeen hundred fifty-two of this 39 article. Qualified family members shall be included in a prioritized 40 list of said family members pursuant to regulations established by the 41 commissioner of the office for people with developmental disabilities. 42 Such family members must have a significant and ongoing involvement in a 43 person's life so as to have sufficient knowledge of their needs and, 44 when reasonably known or ascertainable, the person's wishes, including 45 moral and religious beliefs. In the case of a person who was a resident 46 of the former Willowbrook state school on March seventeenth, nineteen 47 hundred seventy-two and those individuals who were in community care 48 status on that date and subsequently returned to Willowbrook or a 49 related facility, who are fully represented by the consumer advisory 50 board and who have no guardians appointed pursuant to this article or 51 have no qualified family members to make such a decision, then a "guard- 52 ian" shall also mean the Willowbrook consumer advisory board. A decision 53 of such family member or the Willowbrook consumer advisory board to 54 withhold or withdraw life-sustaining treatment shall be subject to all 55 of the protections, procedures and safeguards which apply to the deci-A. 5840 4 1 sion of a guardian to withhold or withdraw life-sustaining treatment 2 pursuant to this section. 3 In the case of a person for whom no guardian has been appointed pursu- 4 ant to this article or for whom there is no qualified family member or 5 the Willowbrook consumer advisory board available to make such a deci- 6 sion, a "guardian" shall also mean, notwithstanding the definitions in 7 section 80.03 of the mental hygiene law, a surrogate decision-making 8 committee, as defined in article eighty of the mental hygiene law. All 9 declarations and procedures, including expedited procedures, to comply 10 with this section shall be established by regulations promulgated by the 11 [commission on quality of care and advocacy for persons with disabili-12ties] justice center for the protection of people with special needs, as 13 established by article twenty of the executive law. 14 (b) Regulations establishing the prioritized list of qualified family 15 members required by paragraph (a) of this subdivision shall be developed 16 by the commissioner of the office for people with developmental disabil- 17 ities in conjunction with parents, advocates and family members of 18 persons [who are intellectually disabled] with developmental disabili- 19 ties. Regulations to implement the authority of the Willowbrook consumer 20 advisory board pursuant to paragraph (a) of this subdivision may be 21 promulgated by the commissioner of the office for people with develop- 22 mental disabilities with advice from the Willowbrook consumer advisory 23 board. 24 (c) Notwithstanding any provision of law to the contrary, the formal 25 determinations required pursuant to section seventeen hundred fifty of 26 this article shall only apply to guardians appointed pursuant to section 27 seventeen hundred fifty [or seventeen hundred fifty-a] of this article. 28 2. Decision-making standard. (a) The guardian shall base all advocacy 29 and health care decision-making solely and exclusively on the best 30 interests of the person [who is intellectually disabled] with a develop- 31 mental disability and, when reasonably known or ascertainable with 32 reasonable diligence, on [the person who is intellectually disabled's] 33 such person's wishes, including moral and religious beliefs. 34 (b) An assessment of the person [who is intellectually disabled's] 35 with a developmental disability's best interests shall include consider- 36 ation of: 37 (i) the dignity and uniqueness of every person; 38 (ii) the preservation, improvement or restoration of the person [who39is intellectually disabled's] with a developmental disability's health 40 and well being; 41 (iii) the relief of the person [who is intellectually disabled's] with 42 a developmental disability's suffering by means of palliative care and 43 pain management; 44 (iv) the unique nature of [artificially provided] nutrition or 45 hydration provided by medical treatment, and the effect it may have on 46 the person [who is intellectually disabled] with a developmental disa- 47 bility; and 48 (v) the entire medical condition of the person. 49 (c) No health care decision shall be influenced in any way by: 50 (i) a presumption that persons [who are intellectually disabled] with 51 a developmental disability are not entitled to the full and equal 52 rights, equal protection, respect, medical care and dignity afforded to 53 persons without [an intellectual disability or a] developmental [disa-54bility] disabilities; or 55 (ii) financial considerations of the guardian, as such considerations 56 affect the guardian, a health care provider or any other party;A. 5840 5 1 provided, however that the guardian shall have no financial obligation 2 for the care of the person with developmental disabilities. 3 3. Right to receive information. Subject to the provisions of sections 4 33.13 and 33.16 of the mental hygiene law, the guardian shall have the 5 right to receive all medical information and medical and clinical 6 records necessary to make informed decisions regarding the person [who7is intellectually disabled's] with a developmental disability's health 8 care. 9 4. Life-sustaining treatment. The guardian shall have the affirmative 10 obligation to advocate for the full and efficacious provision of health 11 care, including life-sustaining treatment. In the event that a guardian 12 makes a decision to withdraw or withhold life-sustaining treatment from 13 a person [who is intellectually disabled] with a developmental disabili- 14 ty: 15 (a) The attending physician, as defined in subdivision two of section 16 twenty-nine hundred eighty of the public health law, must confirm to a 17 reasonable degree of medical certainty that the person [who is intellec-18tually disabled] with a developmental disability lacks capacity to make 19 health care decisions. The determination thereof shall be included in 20 the person [who is intellectually disabled's] with a developmental disa- 21 bility's medical record, and shall contain such attending physician's 22 opinion regarding the cause and nature of the [person who is intellectu-23ally disabled's] person's incapacity as well as its extent and probable 24 duration. The attending physician who makes the confirmation shall 25 consult with another physician, or a [licensed] psychologist, to further 26 confirm the [person who is intellectually disabled's] person's lack of 27 capacity. The attending physician who makes the confirmation, or the 28 physician or [licensed] psychologist with whom the attending physician 29 consults, must (i) be employed by a developmental disabilities services 30 office named in section 13.17 of the mental hygiene law or employed by 31 the office for people with developmental disabilities to provide treat- 32 ment and care to people with developmental disabilities, or (ii) have 33 been employed for a minimum of two years to render care and service in a 34 facility or program operated, licensed or authorized by the office for 35 people with developmental disabilities, or (iii) have been approved by 36 the commissioner of the office for people with developmental disabili- 37 ties in accordance with regulations promulgated by such commissioner. 38 Such regulations shall require that a physician or licensed psychologist 39 possess specialized training or three years experience in treating 40 [intellectual disability] people with developmental disabilities. A 41 record of such consultation shall be included in the person [who is42intellectually disabled's] with a developmental disability's medical 43 record. 44 (b) The attending physician, as defined in subdivision two of section 45 twenty-nine hundred eighty of the public health law, with the concur- 46 rence of another physician with whom such attending physician shall 47 consult, must determine to a reasonable degree of medical certainty and 48 note on the person [who is intellectually disabled's] with a develop- 49 mental disability's chart that: 50 (i) the person [who is intellectually disabled] has a medical condi- 51 tion as follows: 52 A. a terminal condition, as defined in subdivision twenty-three of 53 section twenty-nine hundred sixty-one of the public health law; or 54 B. permanent unconsciousness; orA. 5840 6 1 C. a medical condition other than such person's [intellectual] devel- 2 opmental disability which requires life-sustaining treatment, is irre- 3 versible and which will continue indefinitely; and 4 (ii) the life-sustaining treatment would impose an extraordinary 5 burden on such person, in light of: 6 A. such person's medical condition, other than such person's [intel-7lectual] developmental disability; and 8 B. the expected outcome of the life-sustaining treatment, notwith- 9 standing such person's [intellectual] developmental disability; and 10 (iii) in the case of a decision to withdraw or withhold artificially 11 provided nutrition or hydration: 12 A. there is no reasonable hope of maintaining life; or 13 B. the artificially provided nutrition or hydration poses an extraor- 14 dinary burden. 15 (c) The guardian shall express a decision to withhold or withdraw 16 life-sustaining treatment either: 17 (i) in writing, dated and signed in the presence of one witness eigh- 18 teen years of age or older who shall sign the decision, and presented to 19 the attending physician, as defined in subdivision two of section twen- 20 ty-nine hundred eighty of the public health law; or 21 (ii) orally, to two persons eighteen years of age or older, at least 22 one of whom is the person [who is intellectually disabled's] with a 23 developmental disability's attending physician, as defined in subdivi- 24 sion two of section twenty-nine hundred eighty of the public health law. 25 (d) The attending physician, as defined in subdivision two of section 26 twenty-nine hundred eighty of the public health law, who is provided 27 with the decision of a guardian shall include the decision in the person 28 [who is intellectually disabled's] with a developmental disability's 29 medical chart, and shall either: 30 (i) promptly issue an order to withhold or withdraw life-sustaining 31 treatment from the person [who is intellectually disabled], and inform 32 the staff responsible for such person's care, if any, of the order; or 33 (ii) promptly object to such decision, in accordance with subdivision 34 five of this section. 35 (e) At least forty-eight hours prior to the implementation of a deci- 36 sion to withdraw life-sustaining treatment, or at the earliest possible 37 time prior to the implementation of a decision to withhold life-sustain- 38 ing treatment, the attending physician shall notify: 39 (i) the person [who is intellectually disabled] with a developmental 40 disability, except if the attending physician determines, in writing and 41 in consultation with another physician or a licensed psychologist, that, 42 to a reasonable degree of medical certainty, the person would suffer 43 immediate and severe injury from such notification. The attending physi- 44 cian who makes the confirmation, or the physician or licensed psychol- 45 ogist with whom the attending physician consults, shall: 46 A. be employed by a developmental disabilities services office named 47 in section 13.17 of the mental hygiene law or employed by the office for 48 people with developmental disabilities to provide treatment and care to 49 people with developmental disabilities, or 50 B. have been employed for a minimum of two years to render care and 51 service in a facility operated, licensed or authorized by the office for 52 people with developmental disabilities, or 53 C. have been approved by the commissioner of the office for people 54 with developmental disabilities in accordance with regulations promul- 55 gated by such commissioner. Such regulations shall require that a physi- 56 cian or licensed psychologist possess specialized training or threeA. 5840 7 1 years experience in treating [intellectual disability] persons with 2 developmental disabilities. A record of such consultation shall be 3 included in the [person who is intellectually disabled's] person's 4 medical record; 5 (ii) if the person is in or was transferred from a residential facili- 6 ty operated, licensed or authorized by the office for people with devel- 7 opmental disabilities, the chief executive officer of the agency or 8 organization operating such facility and the mental hygiene legal 9 service; and 10 (iii) if the person is not in and was not transferred from such a 11 facility or program, the commissioner of the office for people with 12 developmental disabilities, or his or her designee. 13 5. Objection to health care decision. (a) Suspension. A health care 14 decision made pursuant to subdivision four of this section shall be 15 suspended, pending judicial review, except if the suspension would in 16 reasonable medical judgment be likely to result in the death of the 17 person [who is intellectually disabled] with a developmental disability, 18 in the event of an objection to that decision at any time by: 19 (i) the person [who is intellectually disabled] on whose behalf such 20 decision was made; or 21 (ii) a parent or adult sibling who either resides with or has main- 22 tained substantial and continuous contact with the person [who is intel-23lectually disabled]; or 24 (iii) the attending physician, as defined in subdivision two of 25 section twenty-nine hundred eighty of the public health law; or 26 (iv) any other health care practitioner providing services to the 27 person [who is intellectually disabled] with a developmental disability, 28 who is licensed pursuant to article one hundred thirty-one, one hundred 29 thirty-one-B, one hundred thirty-two, one hundred thirty-three, one 30 hundred thirty-six, one hundred thirty-nine, one hundred forty-one, one 31 hundred forty-three, one hundred forty-four, one hundred fifty-three, 32 one hundred fifty-four, one hundred fifty-six, one hundred fifty-nine or 33 one hundred sixty-four of the education law; or 34 (v) the chief executive officer identified in subparagraph (ii) of 35 paragraph (e) of subdivision four of this section; or 36 (vi) if the person is in or was transferred from a residential facili- 37 ty or program operated, approved or licensed by the office for people 38 with developmental disabilities, the mental hygiene legal service; or 39 (vii) if the person is not in and was not transferred from such a 40 facility or program, the commissioner of the office for people with 41 developmental disabilities, or his or her designee. 42 (b) Form of objection. Such objection shall occur orally or in writ- 43 ing. 44 (c) Notification. In the event of the suspension of a health care 45 decision pursuant to this subdivision, the objecting party shall prompt- 46 ly notify the guardian and the other parties identified in paragraph (a) 47 of this subdivision, and the attending physician shall record such 48 suspension in the person [who is intellectually disabled's] with a 49 developmental disability's medical chart. 50 (d) Dispute mediation. In the event of an objection pursuant to this 51 subdivision, at the request of the objecting party or person or entity 52 authorized to act as a guardian under this section, except a surrogate 53 decision making committee established pursuant to article eighty of the 54 mental hygiene law, such objection shall be referred to a dispute medi- 55 ation system, established pursuant to section two thousand nine hundred 56 seventy-two of the public health law or similar entity for mediatingA. 5840 8 1 disputes in a hospice, such as a patient's advocate's office, hospital 2 chaplain's office or ethics committee, as described in writing and 3 adopted by the governing authority of such hospice, for non-binding 4 mediation. In the event that such dispute cannot be resolved within 5 seventy-two hours or no such mediation entity exists or is reasonably 6 available for mediation of a dispute, the objection shall proceed to 7 judicial review pursuant to this subdivision. The party requesting medi- 8 ation shall provide notification to those parties entitled to notice 9 pursuant to paragraph (a) of this subdivision. 10 6. Special proceeding authorized. The guardian, the attending physi- 11 cian, as defined in subdivision two of section twenty-nine hundred 12 eighty of the public health law, the chief executive officer identified 13 in subparagraph (ii) of paragraph (e) of subdivision four of this 14 section, the mental hygiene legal service (if the person is in or was 15 transferred from a residential facility or program operated, approved or 16 licensed by the office for people with developmental disabilities) or 17 the commissioner of the office for people with developmental disabili- 18 ties or his or her designee (if the person is not in and was not trans- 19 ferred from such a facility or program) may commence a special proceed- 20 ing in a court of competent jurisdiction with respect to any dispute 21 arising under this section, including objecting to the withdrawal or 22 withholding of life-sustaining treatment because such withdrawal or 23 withholding is not in accord with the criteria set forth in this 24 section. 25 7. Provider's obligations. (a) A health care provider shall comply 26 with the health care decisions made by a guardian in good faith pursuant 27 to this section, to the same extent as if such decisions had been made 28 by the person [who is intellectually disabled] with a developmental 29 disability, if such person had capacity. 30 (b) Notwithstanding paragraph (a) of this subdivision, nothing in this 31 section shall be construed to require a private hospital to honor a 32 guardian's health care decision that the hospital would not honor if the 33 decision had been made by the person [who is intellectually disabled] 34 with a developmental disability, if such person had capacity, because 35 the decision is contrary to a formally adopted written policy of the 36 hospital expressly based on religious beliefs or sincerely held moral 37 convictions central to the hospital's operating principles, and the 38 hospital would be permitted by law to refuse to honor the decision if 39 made by such person, provided: 40 (i) the hospital has informed the guardian of such policy prior to or 41 upon admission, if reasonably possible; and 42 (ii) the person [who is intellectually disabled] with a developmental 43 disability is transferred promptly to another hospital that is reason- 44 ably accessible under the circumstances and is willing to honor the 45 guardian's decision. If the guardian is unable or unwilling to arrange 46 such a transfer, the hospital's refusal to honor the decision of the 47 guardian shall constitute an objection pursuant to subdivision five of 48 this section. 49 (c) Notwithstanding paragraph (a) of this subdivision, nothing in this 50 section shall be construed to require an individual health care provider 51 to honor a guardian's health care decision that the individual would not 52 honor if the decision had been made by the person [who is intellectually53disabled] with a developmental disability, if such person had capacity, 54 because the decision is contrary to the individual's religious beliefs 55 or sincerely held moral convictions, provided the individual health care 56 provider promptly informs the guardian and the facility, if any, of hisA. 5840 9 1 or her refusal to honor the guardian's decision. In such event, the 2 facility shall promptly transfer responsibility for the person [who is3intellectually disabled] with a developmental disability to another 4 individual health care provider willing to honor the guardian's deci- 5 sion. The individual health care provider shall cooperate in facilitat- 6 ing such transfer of the patient. 7 (d) Notwithstanding the provisions of any other paragraph of this 8 subdivision, if a guardian directs the provision of life-sustaining 9 treatment, the denial of which in reasonable medical judgment would be 10 likely to result in the death of the person [who is intellectually disa-11bled] with a developmental disability, a hospital or individual health 12 care provider that does not wish to provide such treatment shall none- 13 theless comply with the guardian's decision pending either transfer of 14 the person [who is intellectually disabled] with a developmental disa- 15 bility to a willing hospital or individual health care provider, or 16 judicial review. 17 (e) Nothing in this section shall affect or diminish the authority of 18 a surrogate decision-making panel to render decisions regarding major 19 medical treatment pursuant to article eighty of the mental hygiene law. 20 8. Immunity. (a) Provider immunity. No health care provider or employ- 21 ee thereof shall be subjected to criminal or civil liability, or be 22 deemed to have engaged in unprofessional conduct, for honoring reason- 23 ably and in good faith a health care decision by a guardian, or for 24 other actions taken reasonably and in good faith pursuant to this 25 section. 26 (b) Guardian immunity. No guardian shall be subjected to criminal or 27 civil liability for making a health care decision reasonably and in good 28 faith pursuant to this section. 29 § 4. Section 1751 of the surrogate's court procedure act, as amended 30 by chapter 198 of the laws of 2016, is amended to read as follows: 31 § 1751. Petition for appointment; by whom made 32 1. A petition for the appointment of a guardian [of the person or33property, or both, of a person who is intellectually disabled or a34person who is developmentally disabled may be made by a parent, any] 35 pursuant to this article may be made by the person with a developmental 36 disability or traumatic brain injury when such person is eighteen years 37 of age or older, a parent, spouse, sibling, adult child or any other 38 interested person eighteen years of age or older on behalf of the person 39 [who is intellectually disabled or a person who is developmentally disa-40bled] with a developmental disability or traumatic brain injury includ- 41 ing a corporation authorized to serve as a guardian as provided for by 42 this article[, or by the person who is intellectually disabled or a43person who is developmentally disabled when such person is eighteen44years of age or older]. 45 2. A person with a developmental disability or traumatic brain injury 46 may knowingly and voluntarily consent to the appointment of a guardian 47 pursuant to this article. 48 § 5. The surrogate's court procedure act is amended by adding a new 49 section 1751-a to read as follows: 50 § 1751-a. Petition for appointment; where made (venue) 51 1. A proceeding under this article shall be brought in the surrogate's 52 court within the county in which the person with a developmental disa- 53 bility resides, or is physically present at the time the proceeding is 54 commenced, subject to an application to change venue pursuant to this 55 subdivision. If the person with a developmental disability alleged to be 56 in need of a guardian is being cared for as a resident in a facility,A. 5840 10 1 the residence of that person shall be deemed to be in the county where 2 the facility is located and the proceeding may be brought in that coun- 3 ty, subject to application by an interested party for a change in venue 4 to another county because of the inconvenience of the parties or 5 witnesses or the condition of the person alleged to be in need of a 6 guardian. 7 2. After the appointment of a guardian, at the option of the petition- 8 er, any proceeding to modify a prior order may be brought in the surro- 9 gate's court which granted the prior order, unless at the time of the 10 application to modify the order the person with a developmental disabil- 11 ity resides elsewhere, in which case the proceeding may be brought in 12 the county where the person with a developmental disability resides or 13 is physically present at the time the proceeding is commenced, without 14 the need for a motion to transfer venue. 15 § 6. Section 1752 of the surrogate's court procedure act, as amended 16 by chapter 198 of the laws of 2016, is amended to read as follows: 17 § 1752. Petition for appointment; contents 18 The petition for the appointment of a guardian shall be filed with the 19 court on forms to be prescribed by the state chief administrator of the 20 courts. Such petition for a guardian [of a person who is intellectually21disabled or a person who is developmentally disabled] pursuant to this 22 article shall include, but not be limited to, the following information: 23 1. the full name, date of birth and residence of the person [who is24intellectually disabled or a person who is developmentally disabled] 25 with a developmental disability or a traumatic brain injury; 26 2. the name, age, address and relationship or interest of the peti- 27 tioner to the person [who is intellectually disabled or a person who is28developmentally disabled] with a developmental disability; 29 3. the names and addresses, if known of the father, the mother, adult 30 children, adult siblings [if eighteen years of age or older, the spouse31and primary care physician if other than a physician having submitted a32certification with the petition, if any,] of the person [who is intel-33lectually disabled or a person who is developmentally disabled] with a 34 developmental disability or traumatic brain injury and whether or not 35 they are living, and if living, their addresses and the names and 36 addresses of the nearest distributees of full age who are domiciliaries, 37 if both parents are dead; 38 4. the name and address of the person with whom the person [who is39intellectually disabled or a person who is developmentally disabled] 40 with a developmental disability or traumatic brain injury resides if 41 other than the parents or spouse; 42 5. the name and address of any person with significant and ongoing 43 involvement in the life of the person with a developmental disability or 44 traumatic brain injury so as to have sufficient knowledge of their 45 needs, if such persons are known to the petitioner; 46 6. the name, age, address, education and other qualifications, and 47 consent of the proposed guardian, standby and alternate guardian, if 48 other than the parent, spouse, adult child if eighteen years of age or 49 older or adult sibling if eighteen years of age or older, and if such 50 parent, spouse or adult child be living, why any of them should not be 51 appointed guardian; 52 [6.] 7. the estimated value of real and personal property and the 53 annual income therefrom and any other income including governmental 54 entitlements to which the person [who is intellectually disabled or55person who is developmentally disabled] with a developmental disability 56 or traumatic brain injury is entitled; andA. 5840 11 1 [7. any circumstances which the court should consider in determining2whether it is in the best interests of the person who is intellectually3disabled or person who is developmentally disabled to not be present at4the hearing if conducted.] 5 8. An enumeration of the specific domains in which the person is 6 alleged to be in need of a guardian or a statement that full guardian- 7 ship is sought. Specific domains may include: 8 (a) informed consent health care or other professional care; 9 (b) management of money or other income, assets or property; 10 (c) access to confidential and other sensitive information; 11 (d) choices involving education, training, employment, supports and 12 services; 13 (e) requesting advocacy, legal or other professional services; 14 (f) choice of residence and shared living arrangements; 15 (g) choices as to social and recreational activity; 16 (h) decisions concerning travel; and 17 (i) application for government-sponsored or private insurance and 18 benefits. 19 9. A statement of the alternatives to guardianship considered, includ- 20 ing but not limited to the execution of a health care proxy, power of 21 attorney, representative payee, service coordination, and/or other 22 social support services, other available supported or shared decision 23 making, and surrogate decision-making committee, and reasons for the 24 declination of such alternatives. 25 § 7. Section 1753 of the surrogate's court procedure act, as amended 26 by chapter 198 of the laws of 2016, is amended to read as follows: 27 § 1753. Persons to be served and noticed 28 1. Upon [presentation] filing of the petition, process shall issue to: 29 (a) [the parent or parents, adult children, if the petitioner is other30than a parent, adult siblings, if the petitioner is other than a parent,31and if the person who is intellectually disabled or person who is devel-32opmentally disabled is married, to the spouse, if their residences are33known;34(b) the person having care and custody of the person who is intellec-35tually disabled or person who is developmentally disabled, or with whom36such person resides if other than the parents or spouse; and37(c) the person who is intellectually disabled or person who is devel-38opmentally disabled if fourteen years of age or older for whom an appli-39cation has been made in such person's behalf.402. Upon presentation of the petition, notice of such petition shall be41served by certified mail to:42(a) the adult siblings if the petitioner is a parent, and adult chil-43dren if the petitioner is a parent;44(b) the mental hygiene legal service in the judicial department where45the facility, as defined in subdivision (a) of section 47.01 of the46mental hygiene law, is located if the person who is intellectually disa-47bled or person who is developmentally disabled resides in such a facili-48ty;49(c) in all cases, to the director in charge of a facility licensed or50operated by an agency of the state of New York, if the person who is51intellectually disabled or person who is developmentally disabled52resides in such facility;53(d) one other person if designated in writing by the person who is54intellectually disabled or person who is developmentally disabled; and55(e) such other persons as the court may deem proper.A. 5840 12 13. No process or notice shall be necessary to a parent, adult child,2adult sibling, or spouse of the person who is intellectually disabled or3person who is developmentally disabled who has been declared by a court4as being incompetent. In addition, no process or notice shall be neces-5sary to a spouse who is divorced from the person who is intellectually6disabled or person who is developmentally disabled, and to a parent,7adult child, adult sibling when it shall appear to the satisfaction of8the court that such person or persons have abandoned the person who is9intellectually disabled or person who is developmentally disabled.] the 10 person with a developmental disability, if petitioner is other than the 11 person with a developmental disability alleged to be in need of a guard- 12 ian; and 13 (b) the parent or parents of the individual if the petitioner is other 14 than the parents. 15 2. Upon filing of the petition, notice of the petition and the cita- 16 tion along with notice of the date, time, and location of the first 17 appearance shall be sent by certified mail, return receipt requested to 18 the last known address of the following, except if any of the following 19 is also the petitioner: 20 (a) individuals listed in the petition pursuant to section seventeen 21 hundred fifty-two of this article and subdivisions four and five of this 22 section; 23 (b) the director in charge of a facility licensed or operated by an 24 agency of the state of New York or their designee, if the person with a 25 developmental disability resides in such facility; 26 (c) any other person if designated in writing by the person with a 27 developmental disability; and 28 (d) such other persons as the court may deem proper. 29 3. Within five days of the filing of the petition, a full copy of said 30 petition shall be served by certified mail upon the mental hygiene legal 31 service in the judicial department in which the petition was filed. A 32 copy of proof of mailing shall be thereafter filed with the court. 33 4. For petitions to modify an existing guardianship pursuant to 34 section seventeen hundred fifty-five of this article and/or to appoint a 35 standby or alternate standby guardian pursuant to subdivision seventeen 36 hundred fifty-seven of this article, written notice must be given to all 37 standby and alternate standby guardians currently in succession for a 38 person with a developmental disability who is the subject of the peti- 39 tion by regular mail unless such standby and alternate standby guardians 40 have consented to the petition. An affidavit of service by mail shall be 41 filed with the court. 42 5. In addition, no process or notice shall be necessary to any indi- 43 vidual who has evinced an intent to forgo his or her relationship to the 44 individual as manifested by his or her failure to visit and communicate 45 with the person alleged to be in need of guardianship, although able to 46 do so and not prevented or discouraged from doing so. No process or 47 notice shall be necessary for any individual who cannot, after due dili- 48 gence, reasonably be located. The petitioner shall submit an affidavit 49 to such effect. 50 § 8. Section 1754 of the surrogate's court procedure act is REPEALED 51 and a new section 1754 is added to read as follows: 52 § 1754. Proceedings upon petition 53 1. Upon a petition for the appointment of a guardian of a person with 54 a developmental disability eighteen years of age or older, the court 55 shall not later than forty-five days following the filing of proof ofA. 5840 13 1 mailing upon the mental hygiene legal service, schedule an appearance in 2 the matter. 3 (a) The mental hygiene legal service shall ascertain whether the 4 person with a developmental disability alleged to need a guardian has 5 any objection to the relief sought in the petition and whether the 6 service is able to represent the interests of the person in the proceed- 7 ing. 8 (b) If the mental hygiene service reports that the person with a 9 developmental disability alleged to need a guardian objects to the 10 relief sought in the petition, the court shall appoint the service as 11 counsel for the person. If the service is not available to serve as the 12 person's counsel and the person does not otherwise have counsel, the 13 court shall appoint counsel for the person from among attorneys eligible 14 for such appointment pursuant to section thirty-five of the judiciary 15 law. The court shall ensure that the individual's counsel, whether it be 16 the service or appointed counsel, have demonstrated experience with and 17 knowledge of representing individuals with developmental disabilities. 18 The appointment of such counsel shall be at no cost to the petitioners. 19 (c) If the mental hygiene legal service reports that the person with a 20 developmental disability alleged to need a guardian does not object to 21 relief sought in the petition, the person's interests shall continue to 22 be represented by the service, if available, and the service shall 23 conduct an examination into the allegations of fact contained in the 24 petition and file with the court and serve upon the petitioner or their 25 counsel no later than ten days prior to the appearance date an answer 26 confirming or denying the allegations in the petition and report as to 27 whether the service finds grounds to object to the relief sought in the 28 petition. If the service objects to the relief sought in the petition, 29 the service shall, along with its answer, serve a copy of its underlying 30 report and findings upon the petitioner and/or their counsel. The 31 service will otherwise perform its functions consistent with uniform 32 regulations promulgated by the appellate division of the supreme court. 33 (d) If a person with a developmental disability alleged to need a 34 guardian who does not object, does not otherwise appear by the service 35 or other counsel, the court shall appoint a guardian ad litem pursuant 36 to this section and section four hundred three of this act. Any guardian 37 ad litem appointed pursuant to this section shall conduct an investi- 38 gation into the allegations of fact contained in the petition and file 39 with the court and serve no later than ten days prior to the appearance 40 date, a report of its findings confirming or disconfirming said allega- 41 tions, and if appropriate and upon consent of the person with a develop- 42 mental disability nominate a person or entity of the respondent's choos- 43 ing to serve as guardian, as well as any other matter which could assist 44 the court's consideration of the matter, and serve a copy of the report 45 upon the petitioner and petitioner's counsel. The court shall ensure 46 that the individual's counsel, whether it be the service or appointed 47 counsel, have demonstrated experience with and knowledge of representing 48 individuals with developmental disabilities. The appointment of such 49 guardian ad litem shall be at no cost to the petitioner. 50 (e) The mental hygiene legal service, any other counsel for the person 51 with a developmental disability alleged to need a guardian, or the guar- 52 dian ad litem may apply to the court for permission to inspect the clin- 53 ical records pertaining to the person with a developmental disability 54 alleged to need a guardian in accordance with state and federal laws. 55 The service, any other counsel for the person with a developmental disa- 56 bility and the guardian ad litem, if any, shall be afforded access toA. 5840 14 1 the person's clinical records without a court order to the extent that 2 such access is otherwise authorized by state and federal laws. 3 (f) The petitioner, the mental hygiene legal service, any other coun- 4 sel for the person with a developmental disability alleged to need a 5 guardian, and the guardian ad litem, if any, may request the court for 6 further evaluation of the person by a physician, psychiatrist or certi- 7 fied psychologist who has demonstrated experience with and knowledge of 8 persons with developmental disabilities. In the event that further eval- 9 uations are required, the court may grant appropriate adjournments of 10 the initial appearance date and may direct, in the case of a person 11 determined to be indigent, that any further court authorized evaluations 12 be paid for out of funds available pursuant to section thirty-five of 13 the judiciary law. Such evaluation shall be at no cost to the petition- 14 er. 15 2. At the first appearance, the respondent shall be present unless 16 such presence is excused by the court based upon the standard set forth 17 in paragraph (d) of this subdivision and upon recommendation of peti- 18 tioner and/or petitioner's counsel, the mental hygiene legal service, 19 respondent's counsel, or the guardian ad litem if the respondent does 20 not have counsel. The petitioner shall also be present and may be 21 represented by counsel. Any other party required to be served or noticed 22 with process in the matter may be present. 23 (a) Prior to such appearance, the petitioner, either personally or by 24 counsel, may confer with the service, respondent's counsel and the guar- 25 dian ad litem if respondent does not have counsel and agree to amend any 26 part of its petition and allegations of fact therein. Any such amended 27 petition shall be filed with the court prior to the date of the first 28 appearance. 29 (b) At the first appearance, the court shall examine the answer of the 30 service, respondent's counsel, or the report of the guardian ad litem, 31 if any, and may hear from the petitioner and the service, respondent's 32 counsel and the guardian ad litem, if any, on the contents of the said 33 answer or report and any amended petition filed. 34 (c) The court may direct that an order and decree of guardianship 35 issue, including the authority of the guardian to act on behalf of the 36 respondent with respect to any matter in which petitioner, the service, 37 respondent's counsel, and the guardian ad litem, if any, all agree on 38 the record that the respondent requires the requested relief and does 39 not object to such relief. 40 (d) In the event that the petition cannot be disposed of by the agree- 41 ment of the court and all of the parties, the court shall schedule a 42 hearing in the matter within forty-five days of the first appearance at 43 which the respondent shall be present unless it shall appear to the 44 court that the respondent's presence is medically contraindicated, in 45 that it would be likely to cause harm to the respondent, or under such 46 other circumstances raised by or on behalf of the respondent as the 47 court agrees that the respondent's presence would not be in his or her 48 best interests, provided however that the respondent's presence shall 49 not be waived over the objection of the service, respondent's counsel, 50 or a guardian ad litem, if any, in which case the court shall conduct 51 the hearing where the respondent resides, if the court is satisfied that 52 the respondent's presence would be harmful to the respondent. 53 3. If there are any objections to the relief sought by the petitioner, 54 the respondent has a right to a hearing or jury trial, if demanded by 55 the respondent. In addition, the court may conduct a hearing at the 56 request of any party or on its own motion. At any such hearing or trial,A. 5840 15 1 the petitioner must establish by clear and convincing evidence any facts 2 alleged in the petition or amended petition which are controverted and 3 are relevant to whether respondent has a developmental disability, and 4 if so, whether appointment of a guardian is required and the scope of 5 the guardian's powers. Any other matter must be proven by the fair 6 preponderance of the evidence presented and admitted. 7 4. If, upon conclusion of such hearing or jury trial, if any, the 8 court is satisfied that the respondent has a developmental disability 9 and requires the appointment of a guardian of the person or property, or 10 both, it shall make a decree naming such person or persons to serve as 11 such guardians. The powers of the guardian shall be tailored to the 12 needs of the respondent. 13 § 9. The surrogate's court procedure act is amended by adding a new 14 section 1754-a to read as follows: 15 § 1754-a. Decision making standard 16 Decisions made by a guardian appointed pursuant to this article shall 17 be made in accordance with the following standards: 18 1. A guardian shall exercise authority only as necessitated by the 19 person with a developmental disability's limitations, and, to the extent 20 possible, shall encourage the person with a developmental disability to 21 participate in decisions and to act on his or her own behalf. 22 2. A guardian shall consider the expressed desires and personal values 23 of the person with a developmental disability to the extent known, when 24 making decisions and shall consult with the person with a developmental 25 disability whenever meaningful communication is possible. 26 3. If the person's wishes are unknown and remain unknown after reason- 27 able efforts to discern them, the decision shall be made on the basis of 28 the best interests of the person with a developmental disability as 29 determined by the guardian. In determining the best interests of the 30 person with a developmental disability, the guardian shall weigh the 31 reason for and nature of the proposed action; the benefit or necessity 32 of the action, the possible risks and other consequences of the proposed 33 action; and any available alternatives and their risks, consequences and 34 benefits. The guardian shall take into account any other information, 35 including the views of family and friends, that the guardian believes 36 the person with a developmental disability would have considered if able 37 to act for herself or himself. 38 § 10. Section 1755 of the surrogate's court procedure act, as amended 39 by chapter 198 of the laws of 2016, is amended to read as follows: 40 § 1755. Modification order 41 Any person [who is intellectually disabled or person who is develop-42mentally disabled] with a developmental disability eighteen years of age 43 or older, or any person on behalf of any person [who is intellectually44disabled or person who is developmental disabled] with a developmental 45 disability for whom a guardian has been appointed, may apply to the 46 court [having jurisdiction over the guardianship order] pursuant to 47 section seventeen hundred fifty-one-a of this article requesting modifi- 48 cation of such order in order to protect the person [who is intellectu-49ally disabled's, or person who is developmentally disabled's] with a 50 developmental disability's financial situation and/or his or her 51 personal interests. The court may, upon receipt of any such request to 52 modify the guardianship order, appoint a guardian ad litem. Such guardi- 53 an ad litem shall have demonstrated experience with and knowledge of 54 persons with developmental disabilities. The court shall so modify the 55 guardianship order if in its judgment the interests of the guardian are 56 adverse to those of the person [who is intellectually disabled or personA. 5840 16 1who is developmentally disabled] with a developmental disability or if 2 the interests of justice will be best served including, but not limited 3 to, facts showing the necessity for protecting the personal and/or 4 financial interests of the person [who is intellectually disabled or5person who is developmentally disabled] with a developmental disability. 6 § 11. Section 1756 of the surrogate's court procedure act, as amended 7 by chapter 198 of the laws of 2016, is amended to read as follows: 8 § 1756. Limited [guardian of the property] purpose and/or limited dura- 9 tion guardianship 10 1. a. When it shall appear to the satisfaction of the court that such 11 person [who is intellectually disabled or person who is developmentally12disabled] with a developmental disability for whom an application for 13 guardianship is made pursuant to this article is eighteen years of age 14 or older and is wholly or substantially self-supporting by means of his 15 or her wages or earnings from employment, the court is authorized and 16 empowered to appoint a limited guardian of the property of such person 17 [who is intellectually disabled or person who is developmentally disa-18bled] who shall receive, manage, disburse and account for only such 19 property of said person [who is intellectually disabled or person who is20developmentally disabled] with a developmental disability as shall be 21 received from other than the wages or earnings of said person. 22 b. The person [who is intellectually disabled or person who is devel-23opmentally disabled] who is developmentally disabled for whom a limited 24 guardian of the property has been appointed shall have the right to 25 receive and expend any and all wages or other earnings of his or her 26 employment and shall have the power to contract or legally bind himself 27 or herself for such sum of money not exceeding one month's wages or 28 earnings from such employment or three hundred dollars, whichever is 29 greater, or as otherwise authorized by the court. 30 2. When it shall appear to the satisfaction of the court, either upon 31 a petition for guardianship filed as permitted by sections seventeen 32 hundred fifty-one and seventeen hundred fifty-two of this article or 33 upon a petition filed pursuant to this section in a simplified format to 34 be established by the office of court administration in consultation 35 with the office for people with developmental disabilities and other 36 interested stakeholders, that a person with a developmental disability 37 needs the assistance of a guardian of the person and/or property for the 38 purpose of making a single decision or for a brief stated period of 39 transition in such person's life, the court may appoint a limited-pur- 40 pose guardian of the person and/or property to effectuate such a deci- 41 sion or transition. In any such case, the provisions of section seven- 42 teen hundred fifty-four of this article shall apply, except that the 43 period for the rendering of a report by the mental hygiene legal service 44 or other respondent's counsel may be shortened as may be reasonably 45 necessary to meet the needs of the respondent under the circumstances 46 presented. An order appointing and empowering such a limited-purpose 47 guardian of the person and/or property shall state specifically the 48 duration and scope of such guardian's authority. 49 § 12. Section 1757 of the surrogate's court procedure act, as amended 50 by chapter 198 of the laws of 2016, is amended to read as follows: 51 § 1757. Standby guardian of a person [who is intellectually disabled or52person who is developmentally disabled] with a developmental 53 disability 54 1. Upon application, a standby guardian of the person or property or 55 both of a person [who is intellectually disabled or person who is devel-56opmentally disabled] with a developmental disability may be appointed byA. 5840 17 1 the court. Any such application shall be made upon notice to the mental 2 hygiene legal service. The court may also, upon application, appoint an 3 alternate and/or successive alternates to such standby guardian, to act 4 if such standby guardian shall die, or become incapacitated, or shall 5 renounce. Such appointments by the court shall be made in accordance 6 with the provisions of this article, except that the court shall not 7 require the petitioner to resubmit proof of the need for guardianship. 8 2. Such standby guardian, or alternate in the event of such standby 9 guardian's death, incapacity or renunciation, shall without further 10 proceedings be empowered to assume the duties of his or her office imme- 11 diately upon death, renunciation or adjudication of incompetency of the 12 guardian or standby guardian appointed pursuant to this article, subject 13 only to the filing of an application for confirmation of his or her 14 appointment by the court within one hundred eighty days following 15 assumption of his or her duties of such office. Before confirming the 16 appointment of the standby guardian or alternate guardian, the court may 17 conduct a hearing pursuant to section seventeen hundred fifty-four of 18 this article upon petition by anyone on behalf of the person [who is19intellectually disabled or person who is developmentally disabled] with 20 a developmental disability or the person [who is intellectually disabled21or person who is developmentally disabled] with a developmental disabil- 22 ity if such person is eighteen years of age or older, or upon its 23 discretion, except that the court shall not require the petitioner to 24 resubmit proof of the need for guardianship. 25 3. Failure of a standby or alternate standby guardian to assume the 26 duties of guardian, seek court confirmation or to renounce the guardian- 27 ship within sixty days of written notice by certified mail or personal 28 delivery given by or on behalf of the person [who is intellectually29disabled or person who is developmentally disabled] with a developmental 30 disability of a prior guardian's inability to serve and the standby or 31 alternate standby guardian's duty to serve, seek court confirmation or 32 renounce such role shall allow the court to: 33 (a) deem the failure an implied renunciation of guardianship, and 34 (b) authorize, notwithstanding the time period provided for in subdi- 35 vision two of this section to seek court confirmation, any remaining 36 standby or alternate standby guardian to serve in such capacity provided 37 (i) an application for confirmation and appropriate notices pursuant to 38 subdivision one of section seventeen hundred fifty-three of this article 39 are filed, or (ii) an application for modification of the guardianship 40 order pursuant to section seventeen hundred fifty-five of this article 41 is filed, except that the court shall not require the petitioner to 42 resubmit proof of the need for guardianship. 43 § 13. Section 1758 of the surrogate's court procedure act, as amended 44 by chapter 198 of the laws of 2016, is amended to read as follows: 45 § 1758. Court jurisdiction 46 1. The jurisdiction of the court to hear proceedings pursuant to this 47 article shall be subject to article eighty-three of the mental hygiene 48 law. 49 2. After the appointment of a guardian, standby guardian or alternate 50 guardians, the court shall have and retain general jurisdiction over the 51 person [who is intellectually disabled or person who is developmentally52disabled] with a developmental disability for whom such guardian shall 53 have been appointed, to take of its own motion or to entertain and adju- 54 dicate such steps and proceedings relating to such guardian, standby, or 55 alternate guardianship as may be deemed necessary or proper for theA. 5840 18 1 welfare of such person [who is intellectually disabled or person who is2developmentally disabled] with a developmental disability. 3 § 14. Section 1759 of the surrogate's court procedure act, as amended 4 by chapter 198 of the laws of 2016, is amended to read as follows: 5 § 1759. Duration of guardianship 6 1. Such guardianship shall not terminate at the age of majority or 7 marriage of such person [who is intellectually disabled or person who is8developmentally disabled] with a developmental disability but shall 9 continue during the life of such person, or until terminated by the 10 court. 11 2. A person eighteen years or older for whom such a guardian has been 12 previously appointed or anyone, including the guardian, on behalf of a 13 person [who is intellectually disabled or person who is developmentally14disabled] with a developmental disability for whom a guardian has been 15 appointed may petition the court which made such appointment or the 16 court in his or her county of residence to have the guardian discharged 17 and a successor appointed, or to have the guardian of the property 18 designated as a limited guardian of the property, or to have the guardi- 19 anship order modified, dissolved or otherwise amended. Upon such a peti- 20 tion for review, the court shall conduct a hearing pursuant to section 21 seventeen hundred fifty-four of this article except that the court shall 22 not require the petitioner to resubmit proof of the need for guardian- 23 ship. 24 3. Upon marriage of such person [who is intellectually disabled or25person who is developmentally disabled] with a developmental disability 26 for whom such a guardian has been appointed, the court shall, upon 27 request of the person [who is intellectually disabled or person who is28developmentally disabled] with a developmental disability, spouse, or 29 any other person acting on behalf of the person [who is intellectually30disabled or person who is developmentally disabled] with a developmental 31 disability, review the need, if any, to modify, dissolve or otherwise 32 amend the guardianship order including, but not limited to, the appoint- 33 ment of the spouse as standby guardian. The court, in its discretion, 34 may conduct such review pursuant to section seventeen hundred fifty-four 35 of this article except that the court shall not require the petitioner 36 to resubmit proof of the need for guardianship. 37 § 15. Section 1760 of the surrogate's court procedure act, as amended 38 by chapter 198 of the laws of 2016, is amended to read as follows: 39 § 1760. Corporate guardianship 40 No corporation may be appointed guardian of the person under the 41 provisions of this article, except that a non-profit corporation organ- 42 ized and existing under the laws of the state of New York and having the 43 corporate power to act as guardian of a person [who is intellectually44disabled or person who is developmentally disabled] with a developmental 45 disability, may be appointed as the guardian of the person only of such 46 person [who is intellectually disabled or person who is developmentally47disabled] with a developmental disability. Upon specific request to and 48 approval by the court, such authority of a not-for-profit corporation as 49 guardian of the person with developmental disabilities shall include the 50 authority to establish a supplemental needs trust account for the bene- 51 fit of the person with a developmental disability, if necessary. 52 § 16. Section 1761 of the surrogate's court procedure act, as amended 53 by chapter 198 of the laws of 2016, is amended to read as follows: 54 § 1761. Application of other provisions 55 To the extent that the context thereof shall admit, the provisions of 56 article seventeen of this act shall apply to all proceedings under thisA. 5840 19 1 article with the same force and effect as if an "infant", as therein 2 referred to, were a "person [who is intellectually disabled" or "person3who is developmentally disabled] with a developmental disability" as 4 herein defined, and a "guardian" as therein referred to were a "guardian 5 of the person [who is intellectually disabled" or a "guardian of a6person who is developmentally disabled] with a developmental disability" 7 as herein provided for. 8 § 17. The surrogate's court procedure act is amended by adding a new 9 section 1762 to read as follows: 10 § 1762. Annual account and asset verification form 11 1. A guardian of the property of a person with a developmental disa- 12 bility must, within the counties within the city of New York and within 13 the counties of Nassau, Orange, Suffolk and Westchester, annually within 14 thirty days after the anniversary of his or her appointment and within 15 every other county in the month of January of each year, as long as any 16 of the person with a developmental disability's property of the proceeds 17 thereof remains under the guardian's control, file in the court the 18 model guardianship account and asset verification form annexed hereto. A 19 copy of the annual guardianship account and asset verification form is 20 also to be sent by regular mail to all standby and alternate standby 21 guardians then named in the court's decree to their last known address. 22 2. The model guardianship account and asset verification form shall be 23 as follows: 24 GUARDIANSHIP ACCOUNT AND ASSET VERIFICATION FORM 25 *The original of this form is to be filed with the Surrogate Court Clerk 26 where guardianship was originally obtained. A copy of this form is to be 27 sent to all standby guardians and alternate standby guardians by regular 28 mail. 29 I. Guardianship Data 30 GUARDIAN INFORMATION 31 _________________________ 32 Home Phone #: ______________________ 33 Guardian's Name Mobile Phone #:_____________________ 34 Work Phone#:________________________ 35 _________________________ E-mail Address (if any):_________________ 36 Street Address 37 _________________________ 38 City State Zip 39 WARD INFORMATION 40 ___________________________ 41 Ward's Name & Date of Birth 42 ___________________________ 43 Street Address 44 ___________________________ 45 City State Zip 46 If the Ward lives in a residential facility or other setting under 47 someone's care, please provide the following information: 48 Name/Address: ________________________________ 49 Contact Person: ________________________________ 50 Phone #: ______________________________________ 51 E-mail Address (if any): _________________________ 52 II. Guardianship Account and Asset Verification Form 53 Note: Absolutely NO WITHDRAWALS are permitted from a guardianship 54 account without a prior written court order from the ____________ County 55 Surrogate's court.A. 5840 20 1 Please have the financial institution complete this section if a Guardi- 2 anship Account exists for the individual for whom you serve as guardian. 3 This is to certify that the records of (Name & Address of institution 4 holding assets indicated herein) show that (Name & Address of Guardian), 5 as Guardian of (Name of Ward) had a balance as of December 31, (insert 6 year) of $(Insert amount) in Account # ______________, which is in a 7 Court Restricted Guardianship Account with this Financial Institution. 8 This account earned interest in the amount of $_________ in (year), as 9 will be reported on the 1099 for this Account. 10 In witness whereof, the Financial Institution has hereunto set its hand 11 and corporate seal the day and year noted herein. 12 By: ______________________ 13 Official Title: ______________________ 14 ************************************************************************* 15 If you are not holding funds for your Ward, please sign below in the 16 presence of a Notary Public. 17 I certify under penalty of perjury that I am not holding any funds in 18 any financial institution or otherwise for my Ward, (Name of Ward). 19 Guardian Signature : _______________________ 20 Print Name: _______________________ 21 Sworn to and subscribed before me: 22 __________________________ 23 Notary Public 24 § 18. Paragraph a of subdivision 1 and subdivision 4 of section 35 of 25 the judiciary law, paragraph a of subdivision 1 as amended by chapter 26 817 of the laws of 1986, subdivision 4 as amended by chapter 706 of the 27 laws of 1975 and as renumbered by chapter 315 of the laws of 1985, are 28 amended to read as follows: 29 a. When a court orders a hearing in a proceeding upon a writ of habeas 30 corpus to inquire into the cause of detention of a person in custody in 31 a state institution, or when it orders a hearing in a civil proceeding 32 to commit or transfer a person to or retain him in a state institution 33 when such person is alleged to be mentally ill, mentally defective or a 34 narcotic addict, or when it orders a hearing for the commitment of the 35 guardianship and custody of a child to an authorized agency by reason of 36 the mental illness or [mental retardation] developmental disability of a 37 parent, or when it orders a hearing for guardianship under article 38 seventeen-a of the surrogate's court procedure act or when it orders a 39 hearing to determine whether consent to the adoption of a child shall be 40 required of a parent who is alleged to be mentally ill or [mentally41retarded] have a developmental disability, or when it orders a hearing 42 to determine the best interests of a child when the parent of the child 43 revokes a consent to the adoption of such child and such revocation is 44 opposed or in any adoption or custody proceeding if it determines that 45 assignment of counsel in such cases is mandated by the constitution of 46 this state or of the United States, the court may assign counsel to 47 represent such person if it is satisfied that he is financially unable 48 to obtain counsel. Upon an appeal taken from an order entered in any 49 such proceeding, the appellate court may assign counsel to represent 50 such person upon the appeal if it is satisfied that he is financially 51 unable to obtain counsel. 52 4. In any proceeding described in paragraph (a) of subdivision one of 53 this section, when a person is alleged to be a person with a develop- 54 mental disability or traumatic brain injury in need of a guardian pursu- 55 ant to article seventeen-a of the surrogate's court procedure act, be 56 mentally ill, mentally defective or a narcotic addict, the court whichA. 5840 21 1 ordered the hearing may appoint no more than two psychiatrists, certi- 2 fied psychologists or physicians to examine and testify at the hearing 3 upon the condition of such person. A psychiatrist, psychologist or 4 physician so appointed shall, upon completion of his services, receive 5 reimbursement for expenses reasonably incurred and reasonable compen- 6 sation for such services, to be fixed by the court. Such compensation 7 shall not exceed two hundred dollars if one psychiatrist, psychologist 8 or physician is appointed, or an aggregate sum of three hundred dollars 9 if two psychiatrists, psychologists or physicians are appointed, except 10 that in extraordinary circumstances the court may provide for compen- 11 sation in excess of the foregoing limits. 12 § 19. This act shall take effect on the one hundred eightieth day 13 after it shall have become a law.
