Bill Text: NY A07899 | 2017-2018 | General Assembly | Amended
Bill Title: Relates to the appointment of a standby guardian due to administrative separation; defines administrative separation and the process for such appointment.
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Passed) 2018-06-27 - signed chap.79 [A07899 Detail]
Download: New_York-2017-A07899-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7899--A 2017-2018 Regular Sessions IN ASSEMBLY May 18, 2017 ___________ Introduced by M. of A. ROZIC -- 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 surrogate's court procedure act, in relation to the appointment of a standby guardian due to administrative separation The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 1726 of the surrogate's court procedure act, as 2 amended by chapter 632 of the laws of 2003, paragraph (c) of subdivision 3 3 and paragraph (e) of subdivision 4 as amended by chapter 71 of the 4 laws of 2007, is amended to read as follows: 5 § 1726. Standby guardians 6 1. For the purpose of this section: 7 (a) "Standby guardian" means (i) a person judicially appointed pursu- 8 ant to subdivision three of this section as standby guardian of the 9 person and/or property of an infant whose authority becomes effective 10 upon the incapacity [or], administrative separation, or death of the 11 infant's parent, legal guardian, legal custodian or primary caretaker or 12 upon the consent of the parent, legal guardian, legal custodian or 13 primary caretaker; and (ii) a person designated pursuant to subdivision 14 four of this section as standby guardian whose authority becomes effec- 15 tive upon the death [or], administrative separation, or incapacity of 16 the infant's parent, legal guardian, legal custodian or primary caretak- 17 er or upon the debilitation and consent of the parent, legal guardian, 18 legal custodian or primary caretaker. 19 (b) "Legal guardian" means the court-appointed guardian of the 20 infant's person and/or property. 21 (c) "Attending physician" means the physician who has primary respon- 22 sibility for the treatment and care of the infant's parent, legal guard- 23 ian, legal custodian or primary caretaker. Where more than one physician 24 shares such responsibility, or where a physician is acting on the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11694-06-7A. 7899--A 2 1 attending physician's behalf, any such physician may act as the attend- 2 ing physician pursuant to this section. Where no physician has such 3 responsibility, any physician who is familiar with the parent's, legal 4 guardian's, legal custodian's or primary caretaker's medical condition 5 may act as the attending physician pursuant to this section. 6 (d) "Debilitation" means a chronic and substantial inability to care 7 for one's dependent infant, as a result of (i) a progressively chronic 8 or irreversibly fatal illness, or (ii) a physically debilitating 9 illness, disease or injury. "Debilitated" means the state of having a 10 debilitation. 11 (e) "Incapacity" means a chronic and substantial inability, as a 12 result of mental impairment, to understand the nature and consequences 13 of decisions concerning the care of one's dependent infant, and a conse- 14 quent inability to care for such infant. "Incapacitated" means the state 15 of having an incapacity. 16 (f) "Administrative separation" means a parent, legal guardian, legal 17 custodian or primary caretaker's (i) in connection with a federal immi- 18 gration matter: arrest, detention, incarceration, removal and/or depor- 19 tation; or (ii) receipt of official communication by federal, state, or 20 local authorities regarding immigration enforcement which gives reason- 21 able notice that care and supervision of the child by the parent, legal 22 guardian, legal custodian, or primary caretaker will be interrupted or 23 cannot be provided. 24 2. The provisions of this article relating to guardians shall apply to 25 standby guardians, except insofar as this section provides otherwise. 26 3. (a) A petition for the judicial appointment of a standby guardian 27 of the person and/or property of an infant pursuant to this subdivision 28 may be made only by a parent, a legal guardian of the infant or a legal 29 custodian of the infant; or where the infant is not residing with a 30 parent, legal guardian or legal custodian and, to the satisfaction of 31 the court, such parent, legal guardian or legal custodian cannot be 32 located with due diligence, the primary caretaker of such infant may 33 petition for a judicial appointment of such standby guardian. Applica- 34 tion for standing to petition as a primary caretaker shall be upon 35 motion to the court upon notice to such parties as the court may direct. 36 (b) A petition for the judicial appointment of a standby guardian of 37 an infant shall, in addition to meeting the requirements of section 38 seventeen hundred four of this article: 39 (i) State whether the authority of the standby guardian is to become 40 effective upon the petitioner's incapacity, upon the petitioner's death, 41 upon the petitioner's consent, or upon the petitioner's administrative 42 separation accompanied by his or her consent required pursuant to the 43 provisions of subdivision seven of this section, or upon whichever 44 occurs first; 45 (ii) State that the petitioner suffers from (A) a progressively chron- 46 ic illness [or]; (B) an irreversibly fatal illness and the basis for 47 such statement, such as the date and source of a medical diagnosis, 48 without requiring the identification of the illness in question, or (C) 49 state that the petitioner may become subject to administrative sepa- 50 ration and the basis for such statement. 51 (c) Upon a petition for the judicial appointment of a standby guardian 52 of an infant pursuant to paragraph (a) of this subdivision or for the 53 judicial appointment of a guardian pursuant to paragraph (d) of subdivi- 54 sion four of this section, the court shall conduct a hearing. The court 55 may in its discretion dispense with a hearing for the appointment of a 56 standby guardian, and may in its discretion appoint a guardian ad litemA. 7899--A 3 1 or an attorney for the infant to recommend whether the appointment of a 2 standby guardian as proposed in the application is in the best interest 3 of the infant. 4 (d) (i) If the court finds that the petitioner suffers from a progres- 5 sively chronic illness or an irreversibly fatal illness, or finds that 6 the petitioner may become subject to administrative separation, and that 7 the interests of the infant will be promoted by the appointment of a 8 standby guardian of the person and/or property it must make a decree 9 accordingly. 10 (ii) Such decree shall specify whether the authority of the standby 11 guardian is effective upon the receipt of a determination of the 12 petitioner's incapacity, upon the receipt of the certificate of the 13 petitioner's death, or other such evidence of death that may be satis- 14 factory to the court, or upon the receipt of documentation of the 15 petitioner's administrative separation, and receipt of the petitioner's 16 consent to the commencement of the standby guardian's authority required 17 pursuant to the provisions of subdivision seven of this section, or upon 18 whichever occurs first[, and]. The decree shall also provide that the 19 authority of the standby guardian may earlier become effective upon 20 written consent of the parent pursuant to subparagraph [(iii)] (iv) of 21 paragraph (e) of this subdivision. 22 (iii) If at any time prior to the commencement of the authority of the 23 standby guardian the court finds that the requirements of subparagraph 24 (i) of this paragraph are no longer satisfied, it may rescind such 25 decree. 26 (e) (i) Where the decree provides that the authority of the standby 27 guardian is effective upon receipt of a determination of the 28 petitioner's incapacity, the standby guardian's authority shall commence 29 upon the standby guardian's receipt of a copy of a determination of 30 incapacity made pursuant to subdivision six of this section. The standby 31 guardian shall file a copy of the determination of incapacity with the 32 court that issued the decree within ninety days of the date of receipt 33 of such determination or the standby guardian's authority may be 34 rescinded by the court. 35 (ii) Where the decree provides that the authority of the standby guar- 36 dian is effective upon receipt of a certificate of the petitioner's 37 death, or other such evidence of death that may be satisfactory to the 38 court, the standby guardian's authority shall commence upon the standby 39 guardian's receipt of a certificate of death, or other such evidence of 40 death as may be specified in the decree. The standby guardian shall file 41 the certificate of death, or other such evidence of death, with the 42 court that issued the decree within ninety days of the date of the 43 petitioner's death or the standby guardian's authority may be rescinded 44 by the court. 45 (iii) Where the decree provides that the authority of the standby 46 guardian is effective upon the standby guardian's receipt of documenta- 47 tion of the petitioner's administrative separation, the standby guardi- 48 an's authority shall commence upon the standby guardian's receipt of 49 documentation of the petitioner's administrative separation pursuant to 50 subdivision seven of this section, and receipt of the petitioner's 51 consent to the commencement of the standby guardian's authority as 52 required pursuant to the provisions of subdivision seven of this 53 section. The standby guardian shall file the documentation of adminis- 54 trative separation with the court that issued the decree within sixty 55 days of the date of the standby guardian's receipt of documentation ofA. 7899--A 4 1 the petitioner's administrative separation or the standby guardian's 2 authority may be rescinded by the court. 3 [(iii)] (iv) Notwithstanding subparagraphs (i) and (ii) of this para- 4 graph, a standby guardian's authority shall commence upon the standby 5 guardian's receipt of the petitioner's written consent to such commence- 6 ment, signed by the petitioner in the presence of two witnesses at least 7 eighteen years of age, other than the standby guardian, who shall also 8 sign the writing. Another person may sign the written consent on the 9 petitioner's behalf and at the petitioner's direction if the petitioner 10 is physically unable to do so, provided such consent is signed in the 11 presence of the petitioner and the witnesses. The standby guardian shall 12 file the written consent with the court that issued the decree within 13 ninety days of the date of receipt of such written consent or the stand- 14 by guardian's authority may be rescinded by the court. 15 (f) The petitioner may revoke a standby guardianship created under 16 this subdivision by executing a written revocation, filing it with the 17 court that issued the decree, and promptly notifying the standby guardi- 18 an of the revocation. 19 (g) A person judicially appointed standby guardian pursuant to this 20 subdivision may at any time before the commencement of his or her 21 authority renounce the appointment by executing a written renunciation 22 and filing it with the court that issued the decree, and promptly noti- 23 fying the petitioner of the revocation. 24 4. (a) A parent, a legal guardian, a legal custodian, or primary care- 25 taker under the circumstances described in paragraph (a) of subdivision 26 three of this section or under circumstances described in subparagraph 27 (i) of paragraph (b) of this subdivision may designate a standby guardi- 28 an by means of a written designation, signed by the parent, legal guard- 29 ian, legal custodian or primary caretaker in the presence of two 30 witnesses at least eighteen years of age, other than the standby guardi- 31 an, who shall also sign the writing. Another person may sign the written 32 designation on the parent's, legal guardian's, legal custodian's or 33 primary caretaker's behalf and at the parent's, legal guardian's, legal 34 custodian's or primary caretaker's direction if the parent, legal guard- 35 ian, legal custodian or primary caretaker is physically unable to do so, 36 provided the designation is signed in the presence of the parent, legal 37 guardian, legal custodian or primary caretaker and the witnesses. 38 (b) (i) A designation of a standby guardian shall identify the parent, 39 legal guardian, legal custodian or primary caretaker, the infant and the 40 person designated to be the standby guardian, and shall indicate that 41 the parent, legal guardian, legal custodian or primary caretaker intends 42 for the standby guardian to become the infant's guardian in the event 43 the parent, legal guardian, legal custodian or primary caretaker either: 44 (A) becomes incapacitated; (B) becomes debilitated and consents to the 45 commencement of the standby guardian's authority; [or] (C) becomes 46 subject to an administrative separation and consents to the commencement 47 of the standby guardian's authority as required pursuant to the 48 provisions of subdivision seven of this section; or (D) dies prior to 49 the commencement of a judicial proceeding to appoint a guardian of the 50 person and/or property of an infant. 51 (ii) A parent, legal guardian, legal custodian or primary caretaker 52 may designate an alternate standby guardian in the same writing, and by 53 the same manner, as the designation of a standby guardian. 54 (iii) A designation may, but need not, be in the following form: 55 Designation of Standby GuardianA. 7899--A 5 1 (NOTE: As used in this form, the term "parent" shall include a 2 parent, a court-appointed guardian of an infant's person or proper- 3 ty, a legal custodian, or a primary caretaker, and the term 4 "child(ren)" shall include the dependant infant of a parent, court- 5 appointed guardian, legal custodian or primary caretaker 6 I (name of parent) hereby designate (name, home address and 7 telephone number of standby guardian) as standby guardian of 8 the person and property of my child(ren) (name of child(ren)). 9 (You may, if you wish, provide that the standby guardian's 10 authority shall extend only to the person, or only to the 11 property, of your child, by crossing out "person" or "proper- 12 ty", whichever is inapplicable, above.) 13 The appointment of ___________ as the standby guardian of 14 the person and property of my child(ren) would be in the best 15 interests of my child(ren) because: (Insert justification for 16 appointment of this person as the standby guardian) __________ 17 ______________________________________________________________ 18 ____________________________________________________________ . 19 The standby guardian's authority shall take effect: (1) if 20 my doctor concludes in writing that I am mentally incapaci- 21 tated, and thus unable to care for my child(ren); (2) if my 22 doctor concludes in writing that I am physically debilitated, 23 and thus unable to care for my child(ren) and I consent in 24 writing, before two witnesses, to the standby guardian's 25 authority taking effect; (3) If I become subject to an admin- 26 istrative separation such that care and supervision of the 27 child will be interrupted or cannot be provided; or [(iii)] 28 (4) upon my death. 29 In the event the person I designate above is unable or 30 unwilling to act as guardian for my child(ren), I hereby 31 designate (name, home address and telephone number of alter- 32 nate standby guardian), as standby guardian of my child(ren). 33 I also understand that my standby guardian's authority will 34 cease sixty days after commencing unless by such date he or 35 she petitions the court for appointment as guardian. 36 I understand that I retain full parental, guardianship, 37 custodial or caretaker rights even after the commencement of 38 the standby guardian's authority, and may revoke the standby 39 guardianship at any time. 40 Signature: ________________________________________________ 41 Address: __________________________________________________ 42 Date: _____________________________________________________ 43 I declare that the person whose name appears above signed 44 this document in my presence, or was physically unable to sign 45 and asked another to sign this document, who did so in my 46 presence. I further declare that I am at least eighteen years 47 old and am not the person designated as standby guardian. 48 Witness' Signature: _______________________________________ 49 Address: __________________________________________________ 50 Date: _____________________________________________________ 51 Witness' Signature: _______________________________________ 52 Address: __________________________________________________ 53 Date: _____________________________________________________ 54 (iv) Notwithstanding paragraphs (a) and (b) of this subdivision, a 55 designation of standby guardian shall be effective as if made in accord- 56 ance with the requirements of this subdivision if it was validly made:A. 7899--A 6 1 (a) where the parent, legal guardian, legal custodian or primary care- 2 taker was domiciled at the time it was executed; (b) in the jurisdiction 3 where it was executed or (c) where the parent, legal guardian, legal 4 custodian or primary caretaker is domiciled at the time the designation 5 becomes effective. 6 (c) The authority of the standby guardian under a designation shall 7 commence upon either: (i) the standby guardian's receipt of a copy of a 8 determination of incapacity made pursuant to subdivision six of this 9 section; (ii) the standby guardian's receipt of (A) a copy of a determi- 10 nation of debilitation made pursuant to subdivision six of this section 11 and (B) a copy of the parent's, legal guardian's, legal custodian's or 12 primary caretaker's written consent to such commencement, signed by the 13 parent, legal guardian, legal custodian or primary caretaker in the 14 presence of two witnesses at least eighteen years of age, other than the 15 standby guardian, who shall also sign the writing. Another person may 16 sign the written consent on the parent's, legal guardian's, legal custo- 17 dian's or primary caretaker's behalf and at the parent's, legal guardi- 18 an's, legal custodian's or primary caretaker's direction if the parent, 19 legal guardian, legal custodian or primary caretaker is physically 20 unable to do so, provided such consent is signed in the presence of the 21 parent, legal guardian, legal custodian or primary caretaker and the 22 witnesses; (iii) an administrative separation and consent as required 23 pursuant to the provisions of subdivision seven of this section or 24 [(iii)] (iv) the standby guardian's receipt of a certificate of death, 25 funeral home receipt or other such document indicating that the parent, 26 legal guardian, legal custodian or primary caretaker has died. The 27 standby guardian shall file a petition pursuant to paragraph (d) of this 28 subdivision within sixty days of the date of its commencement pursuant 29 to this paragraph or such standby guardian's authority shall cease after 30 such date, but shall recommence upon such filing. 31 (d) The standby guardian may file a petition for appointment as guard- 32 ian after receipt of either: (i) a copy of a determination of incapacity 33 made pursuant to subdivision six of this section; or (ii) (A) a copy of 34 a determination of debilitation made pursuant to subdivision six of this 35 section and (B) a copy of the parent's, legal guardian's, legal custo- 36 dian's or primary caretaker's written consent, pursuant to paragraph (c) 37 of this subdivision; [or] (iii) documentation of an administrative sepa- 38 ration and consent as required pursuant to the provisions of subdivision 39 seven of this section; or (iv) a certificate of death, or other such 40 evidence of death that may be satisfactory to the court. Such petition 41 must, in addition to meeting the requirements of section seventeen 42 hundred four of this article: 43 (i) append the written designation of such person as standby guardian; 44 and 45 (ii) append a copy of: (A) the determination of incapacity of the 46 parent, legal guardian, legal custodian or primary caretaker; or (B) the 47 determination of debilitation and the parental, guardian's, custodian's 48 or caretaker's consent; [or] (C) documentation of an administrative 49 separation and consent as required pursuant to the provisions of subdi- 50 vision seven of this section; or (D) a copy of the parent's, legal 51 guardian's, legal custodian's or primary caretaker's death certificate, 52 or other such evidence of death that may be satisfactory to the court; 53 and 54 (iii) if the petition is by a person designated as alternate standby 55 guardian, state that the person designated as standby guardian isA. 7899--A 7 1 unwilling or unable to act as standby guardian, and the basis for such 2 statement. 3 (e) Subject to the provisions of paragraph (c) of subdivision three of 4 this section, if the court finds that the petitioner was duly designated 5 as standby guardian, that the parent, legal guardian, legal custodian or 6 primary caretaker of the infant is (i) incapacitated, (ii) debilitated 7 and consents, (iii) has become subject to an administrative separation 8 and consents as required pursuant to the provisions of subdivision seven 9 of this section, or (iv) has died, as established by a copy of a death 10 certificate or other such evidence of death as may be satisfactory to 11 the court, that the interests of the infant will be promoted by the 12 appointment of a standby guardian of the person and/or property, and 13 that, if the petition is by a person designated as alternate standby 14 guardian, the person designated as standby guardian is unwilling or 15 unable to act as standby guardian, it must make a decree accordingly. 16 Prior to making its finding, the court may, in its discretion, appoint 17 an attorney for the infant to recommend whether the appointment of the 18 standby guardian as proposed in the petition is in the best interests of 19 the infant. 20 (f) The parent, legal guardian, legal custodian or primary caretaker 21 may revoke a standby guardianship created under this subdivision: (i) by 22 executing a subsequent designation of guardianship pursuant to para- 23 graphs (a) and (b) of this subdivision, or (ii) notwithstanding the 24 provisions of sections seventeen hundred ten and seventeen hundred elev- 25 en of this article, in the case of a standby guardian whose authority 26 becomes effective upon the death of the parent, legal guardian, legal 27 custodian or primary caretaker of the infant, by a subsequent desig- 28 nation of standby guardian set forth in a will of the parent, legal 29 guardian, legal custodian or primary caretaker, or (iii) by notifying 30 the standby guardian verbally or in writing or by any other act evidenc- 31 ing a specific intent to revoke the standby guardianship prior to the 32 filing of a petition. Where the petition has already been filed, by 33 executing a written revocation, filing it with the court where the peti- 34 tion was filed, and promptly notifying the standby guardian of the revo- 35 cation. 36 5. The standby guardian may also file a petition for appointment as 37 guardian in any other manner permitted by this article or article six of 38 the family court act, on notice to the parent, legal guardian, legal 39 custodian or primary caretaker and may append a designation of standby 40 guardian to the petition for consideration by the court in the determi- 41 nation of such petition. 42 6. (a) A determination of incapacity or debilitation must: (i) be made 43 by the attending physician to a reasonable degree of medical certainty; 44 (ii) be in writing; and (iii) contain the attending physician's opinion 45 regarding the cause and nature of the parent's, legal guardian's, legal 46 custodian's or primary caretaker's incapacity or debilitation as well as 47 its extent and probable duration. The attending physician shall provide 48 a copy of the determination of incapacity or debilitation to the standby 49 guardian, if the standby guardian's identity is known to the physician. 50 (b) If requested by the standby guardian, an attending physician shall 51 make a determination regarding the parent's, legal guardian's, legal 52 custodian's or primary caretaker's incapacity or debilitation for 53 purposes of this section. 54 (c) The standby guardian shall ensure that the parent, legal guardian, 55 legal custodian or primary caretaker is informed of the commencement of 56 the standby guardian's authority as a result of a determination of inca-A. 7899--A 8 1 pacity and of the parent's, legal guardian's, legal custodian's or 2 primary caretaker's right to revoke such authority promptly after 3 receipt of the determination of incapacity, provided there is any indi- 4 cation of the person's ability to comprehend such information. 5 7. Documentation of an administrative separation (a) shall consist of 6 an administrative order, judicial order, affidavit or affirmation indi- 7 cating the parent, legal guardian, legal custodian or primary caretak- 8 er's administrative separation as defined in this section and (b) shall 9 be accompanied by written consent of the parent, legal guardian, legal 10 custodian, or primary caretaker, signed by the parent, legal guardian, 11 legal custodian, or primary caretaker in the presence of two witnesses 12 at least eighteen years of age, other than the standby guardian, who 13 shall also sign the writing. Consent contained in the formal petition 14 submitted pursuant to subdivision three of this section or the written 15 designation made pursuant to subdivision four of this section shall be 16 sufficient to satisfy the requirement for consent set forth in this 17 subdivision. 18 [7.] 8. The commencement of the standby guardian's authority pursuant 19 to a determination of incapacity, determination of debilitation, admin- 20 istrative separation, or consent shall not, itself, divest the parent, 21 legal guardian, legal custodian or primary caretaker of any parental, 22 guardianship, custodial or caretaker rights, but shall confer upon the 23 standby guardian concurrent authority with respect to the infant. 24 [8.] 9. (a) The clerk of any county upon being paid the fees allowed 25 therefor by law shall receive for filing any instrument appointing or 26 designating a standby guardian pursuant to this section made by a domi- 27 ciliary of the county, and shall give a written receipt therefor to the 28 person delivering it. The filing of an appointment or designation of 29 standby guardian shall be for the sole purpose of safekeeping and shall 30 not affect the validity of the appointment or designation. 31 (b) The appointment or designation shall be delivered only to: (i) the 32 parent, legal guardian, legal custodian or primary caretaker who 33 appointed or designated the standby guardian; (ii) the standby guardian 34 or alternate standby guardian; (iii) the person designated as standby 35 guardian or alternate standby guardian; or (iv) any other person 36 directed by the court. 37 § 2. This act shall take effect immediately.