[ ] is old law to be omitted.
LBD04196-02-6
S. 7132--A 2
AN INTELLECTUAL DISABILITY, having qualifications to make such certif-
ication, as being incapable to manage him or herself and/or his or her
affairs by reason of [mental retardation] INTELLECTUAL DISABILITY and
that such condition is permanent in nature or likely to continue indefi-
nitely.
2. Every such certification pursuant to subdivision one of this
section, made on or after the effective date of this subdivision, shall
include a specific determination by such physician and psychologist, or
by such physicians, as to whether the [mentally retarded] person WHO IS
INTELLECTUALLY DISABLED has the capacity to make health care decisions,
as defined by subdivision three of section twenty-nine hundred eighty of
the public health law, for himself or herself. A determination that the
[mentally retarded] person WHO IS INTELLECTUALLY DISABLED has the capac-
ity to make health care decisions shall not preclude the appointment of
a guardian pursuant to this section to make other decisions on behalf of
the [mentally retarded] person WHO IS INTELLECTUALLY DISABLED. The
absence of this determination in the case of guardians appointed prior
to the effective date of this subdivision shall not preclude such guard-
ians from making health care decisions.
S 3. Section 1750-a of the surrogate's court procedure act, as amended
by chapter 744 of the laws of 2005, is amended to read as follows:
S 1750-a. Guardianship of PERSONS WHO ARE developmentally disabled
[persons]
1. When it shall appear to the satisfaction of the court that a person
is a PERSON WHO IS developmentally disabled [person], the court is
authorized to appoint a guardian of the person or of the property or of
both if such appointment of a guardian or guardians is in the best
interest of the PERSON WHO IS developmentally disabled [person]. Such
appointments shall be made pursuant to the provisions of this article,
provided however that the provisions of section seventeen hundred fifty
of this article shall not apply to the appointment of a guardian or
guardians of a PERSON WHO IS developmentally disabled [person]. For the
purposes of this article, a PERSON WHO IS developmentally disabled
[person] is a person who has been certified by one licensed physician
and one licensed psychologist, or by two licensed physicians at least
one of whom is familiar with or has professional knowledge in the care
and treatment of persons with developmental disabilities, having quali-
fications to make such certification, as having an impaired ability to
understand and appreciate the nature and consequences of decisions which
result in such person being incapable of managing himself or herself
and/or his or her affairs by reason of developmental disability and that
such condition is permanent in nature or likely to continue indefinite-
ly, and whose disability:
(a) is attributable to cerebral palsy, epilepsy, neurological impair-
ment, autism or traumatic head injury;
(b) is attributable to any other condition of a person found to be
closely related to [mental retardation] INTELLECTUAL DISABILITY because
such condition results in similar impairment of general intellectual
functioning or adaptive behavior to that of [mentally retarded] persons
WITH INTELLECTUAL DISABILITIES; or
(c) is attributable to dyslexia resulting from a disability described
in subdivision one or two of this section or from [mental retardation]
INTELLECTUAL DISABILITY; and
(d) originates before such person attains age twenty-two, provided,
however, that no such age of origination shall apply for the purposes of
this article to a person with traumatic head injury.
S. 7132--A 3
2. Notwithstanding any provision of law to the contrary, for the
purposes of subdivision two of section seventeen hundred fifty and
section seventeen hundred fifty-b of this article, "a person [with
mental retardation] WHO IS INTELLECTUALLY DISABLED and his or her guard-
ian" shall also mean a person and his or her guardian appointed pursuant
to this section; provided that such person has been certified by the
physicians and/or psychologists, specified in subdivision one of this
section, as (i) having [mental retardation] AN INTELLECTUAL DISABILITY,
or (ii) having a developmental disability, as defined in section 1.03 of
the mental hygiene law, which (A) includes [mental retardation] INTEL-
LECTUAL DISABILITY, or (B) results in a similar impairment of general
intellectual functioning or adaptive behavior so that such person is
incapable of managing himself or herself, and/or his or her affairs by
reason of such developmental disability.
S 4. Section 1750-b of the surrogate's court procedure act, as added
by chapter 500 of the laws of 2002, subdivision 1 as amended by chapter
105 of the laws of 2007, the opening paragraph, paragraphs (a) and (b)
of subdivision 1, and the opening paragraph of subdivision 4 as amended
by chapter 8 of the laws of 2010, subparagraph (i) of paragraph (a) and
clause A of subparagraph (i) of paragraph (e) of subdivision 4 as
amended by section 18 of part J of chapter 56 of the laws of 2012, and
paragraph (d) of subdivision 5 as added by chapter 262 of the laws of
2008, is amended to read as follows:
S 1750-b. Health care decisions for [mentally retarded] persons WHO ARE
INTELLECTUALLY DISABLED
1. Scope of authority. Unless specifically prohibited by the court
after consideration of the determination, if any, regarding a [mentally
retarded person's] PERSON WHO IS INTELLECTUALLY DISABLED'S capacity to
make health care decisions, which is required by section seventeen
hundred fifty of this article, the guardian of such person appointed
pursuant to section seventeen hundred fifty of this article shall have
the authority to make any and all health care decisions, as defined by
subdivision six of section twenty-nine hundred eighty of the public
health law, on behalf of the [mentally retarded] person WHO IS INTELLEC-
TUALLY DISABLED that such person could make if such person had capacity.
Such decisions may include decisions to withhold or withdraw life-sus-
taining treatment. For purposes of this section, "life-sustaining treat-
ment" means medical treatment, including cardiopulmonary resuscitation
and nutrition and hydration provided by means of medical treatment,
which is sustaining life functions and without which, according to
reasonable medical judgment, the patient will die within a relatively
short time period. Cardiopulmonary resuscitation is presumed to be life-
sustaining treatment without the necessity of a medical judgment by an
attending physician. The provisions of this article are not intended to
permit or promote suicide, assisted suicide or euthanasia; accordingly,
nothing in this section shall be construed to permit a guardian to
consent to any act or omission to which the [mentally retarded] person
WHO IS INTELLECTUALLY DISABLED could not consent if such person had
capacity.
(a) For the purposes of making a decision to withhold or withdraw
life-sustaining treatment pursuant to this section, in the case of a
person for whom no guardian has been appointed pursuant to section
seventeen hundred fifty or seventeen hundred fifty-a of this article, a
"guardian" shall also mean a family member of a person who (i) has
[mental retardation] INTELLECTUAL DISABILITY, or (ii) has a develop-
mental disability, as defined in section 1.03 of the mental hygiene law,
S. 7132--A 4
which (A) includes [mental retardation] INTELLECTUAL DISABILITY, or (B)
results in a similar impairment of general intellectual functioning or
adaptive behavior so that such person is incapable of managing himself
or herself, and/or his or her affairs by reason of such developmental
disability. Qualified family members shall be included in a prioritized
list of said family members pursuant to regulations established by the
commissioner of [mental retardation and] THE OFFICE FOR PEOPLE WITH
developmental disabilities. Such family members must have a significant
and ongoing involvement in a person's life so as to have sufficient
knowledge of their needs and, when reasonably known or ascertainable,
the person's wishes, including moral and religious beliefs. In the case
of a person who was a resident of the former Willowbrook state school on
March seventeenth, nineteen hundred seventy-two and those individuals
who were in community care status on that date and subsequently returned
to Willowbrook or a related facility, who are fully represented by the
consumer advisory board and who have no guardians appointed pursuant to
this article or have no qualified family members to make such a deci-
sion, then a "guardian" shall also mean the Willowbrook consumer advi-
sory board. A decision of such family member or the Willowbrook consumer
advisory board to withhold or withdraw life-sustaining treatment shall
be subject to all of the protections, procedures and safeguards which
apply to the decision of a guardian to withhold or withdraw life-sus-
taining treatment pursuant to this section.
In the case of a person for whom no guardian has been appointed pursu-
ant to this article or for whom there is no qualified family member or
the Willowbrook consumer advisory board available to make such a deci-
sion, a "guardian" shall also mean, notwithstanding the definitions in
section 80.03 of the mental hygiene law, a surrogate decision-making
committee, as defined in article eighty of the mental hygiene law. All
declarations and procedures, including expedited procedures, to comply
with this section shall be established by regulations promulgated by the
commission on quality of care and advocacy for persons with disabili-
ties.
(b) Regulations establishing the prioritized list of qualified family
members required by paragraph (a) of this subdivision shall be developed
by the commissioner of [mental retardation and] THE OFFICE FOR PEOPLE
WITH developmental disabilities in conjunction with parents, advocates
and family members of persons who are [mentally retarded] INTELLECTUALLY
DISABLED. Regulations to implement the authority of the Willowbrook
consumer advisory board pursuant to paragraph (a) of this subdivision
may be promulgated by the commissioner of the office [of mental retarda-
tion and] FOR PEOPLE WITH developmental disabilities with advice from
the Willowbrook consumer advisory board.
(c) Notwithstanding any provision of law to the contrary, the formal
determinations required pursuant to section seventeen hundred fifty of
this article shall only apply to guardians appointed pursuant to section
seventeen hundred fifty or seventeen hundred fifty-a of this article.
2. Decision-making standard. (a) The guardian shall base all advocacy
and health care decision-making solely and exclusively on the best
interests of the [mentally retarded] person WHO IS INTELLECTUALLY DISA-
BLED and, when reasonably known or ascertainable with reasonable dili-
gence, on the [mentally retarded person's] PERSON WHO IS INTELLECTUALLY
DISABLED'S wishes, including moral and religious beliefs.
(b) An assessment of the [mentally retarded person's] PERSON WHO IS
INTELLECTUALLY DISABLED'S best interests shall include consideration of:
(i) the dignity and uniqueness of every person;
S. 7132--A 5
(ii) the preservation, improvement or restoration of the [mentally
retarded person's] PERSON WHO IS INTELLECTUALLY DISABLED'S health;
(iii) the relief of the [mentally retarded person's] PERSON WHO IS
INTELLECTUALLY DISABLED'S suffering by means of palliative care and pain
management;
(iv) the unique nature of artificially provided nutrition or
hydration, and the effect it may have on the [mentally retarded] person
WHO IS INTELLECTUALLY DISABLED; and
(v) the entire medical condition of the person.
(c) No health care decision shall be influenced in any way by:
(i) a presumption that persons [with mental retardation] WHO ARE
INTELLECTUALLY DISABLED are not entitled to the full and equal rights,
equal protection, respect, medical care and dignity afforded to persons
without [mental retardation] AN INTELLECTUAL DISABILITY or A develop-
mental [disabilities] DISABILITY; or
(ii) financial considerations of the guardian, as such considerations
affect the guardian, a health care provider or any other party.
3. Right to receive information. Subject to the provisions of sections
33.13 and 33.16 of the mental hygiene law, the guardian shall have the
right to receive all medical information and medical and clinical
records necessary to make informed decisions regarding the [mentally
retarded person's] PERSON WHO IS INTELLECTUALLY DISABLED'S health care.
4. Life-sustaining treatment. The guardian shall have the affirmative
obligation to advocate for the full and efficacious provision of health
care, including life-sustaining treatment. In the event that a guardian
makes a decision to withdraw or withhold life-sustaining treatment from
a [mentally retarded] person WHO IS INTELLECTUALLY DISABLED:
(a) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, must confirm to a
reasonable degree of medical certainty that the [mentally retarded]
person WHO IS INTELLECTUALLY DISABLED lacks capacity to make health care
decisions. The determination thereof shall be included in the [mentally
retarded person's] PERSON WHO IS INTELLECTUALLY DISABLED'S medical
record, and shall contain such attending physician's opinion regarding
the cause and nature of the [mentally retarded person's] PERSON WHO IS
INTELLECTUALLY DISABLED'S incapacity as well as its extent and probable
duration. The attending physician who makes the confirmation shall
consult with another physician, or a licensed psychologist, to further
confirm the [mentally retarded person's] PERSON WHO IS INTELLECTUALLY
DISABLED'S lack of capacity. The attending physician who makes the
confirmation, or the physician or licensed psychologist with whom the
attending physician consults, must (i) be employed by a developmental
disabilities services office named in section 13.17 of the mental
hygiene law or employed by the office for people with developmental
disabilities to provide treatment and care to people with developmental
disabilities, or (ii) have been employed for a minimum of two years to
render care and service in a facility or program operated, licensed or
authorized by the office [of mental retardation and] FOR PEOPLE WITH
developmental disabilities, or (iii) have been approved by the commis-
sioner of [mental retardation and] THE OFFICE FOR PEOPLE WITH develop-
mental disabilities in accordance with regulations promulgated by such
commissioner. Such regulations shall require that a physician or
licensed psychologist possess specialized training or three years expe-
rience in treating [mental retardation] INTELLECTUAL DISABILITY. A
record of such consultation shall be included in the [mentally retarded
person's] PERSON WHO IS INTELLECTUALLY DISABLED'S medical record.
S. 7132--A 6
(b) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, with the concur-
rence of another physician with whom such attending physician shall
consult, must determine to a reasonable degree of medical certainty and
note on the [mentally retarded person's] PERSON WHO IS INTELLECTUALLY
DISABLED'S chart that:
(i) the [mentally retarded] person WHO IS INTELLECTUALLY DISABLED has
a medical condition as follows:
A. a terminal condition, as defined in subdivision twenty-three of
section twenty-nine hundred sixty-one of the public health law; or
B. permanent unconsciousness; or
C. a medical condition other than such person's [mental retardation]
INTELLECTUAL DISABILITY which requires life-sustaining treatment, is
irreversible and which will continue indefinitely; and
(ii) the life-sustaining treatment would impose an extraordinary
burden on such person, in light of:
A. such person's medical condition, other than such person's [mental
retardation] INTELLECTUAL DISABILITY; and
B. the expected outcome of the life-sustaining treatment, notwith-
standing such person's [mental retardation] INTELLECTUAL DISABILITY; and
(iii) in the case of a decision to withdraw or withhold artificially
provided nutrition or hydration:
A. there is no reasonable hope of maintaining life; or
B. the artificially provided nutrition or hydration poses an extraor-
dinary burden.
(c) The guardian shall express a decision to withhold or withdraw
life-sustaining treatment either:
(i) in writing, dated and signed in the presence of one witness eigh-
teen years of age or older who shall sign the decision, and presented to
the attending physician, as defined in subdivision two of section twen-
ty-nine hundred eighty of the public health law; or
(ii) orally, to two persons eighteen years of age or older, at least
one of whom is the [mentally retarded person's] PERSON WHO IS INTELLEC-
TUALLY DISABLED'S attending physician, as defined in subdivision two of
section twenty-nine hundred eighty of the public health law.
(d) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, who is provided
with the decision of a guardian shall include the decision in the
[mentally retarded person's] PERSON WHO IS INTELLECTUALLY DISABLED'S
medical chart, and shall either:
(i) promptly issue an order to withhold or withdraw life-sustaining
treatment from the [mentally retarded] person WHO IS INTELLECTUALLY
DISABLED, and inform the staff responsible for such person's care, if
any, of the order; or
(ii) promptly object to such decision, in accordance with subdivision
five of this section.
(e) At least forty-eight hours prior to the implementation of a deci-
sion to withdraw life-sustaining treatment, or at the earliest possible
time prior to the implementation of a decision to withhold life-sustain-
ing treatment, the attending physician shall notify:
(i) the [mentally retarded] person WHO IS INTELLECTUALLY DISABLED,
except if the attending physician determines, in writing and in consul-
tation with another physician or a licensed psychologist, that, to a
reasonable degree of medical certainty, the person would suffer immedi-
ate and severe injury from such notification. The attending physician
S. 7132--A 7
who makes the confirmation, or the physician or licensed psychologist
with whom the attending physician consults, shall:
A. be employed by a developmental disabilities services office named
in section 13.17 of the mental hygiene law or employed by the office for
people with developmental disabilities to provide treatment and care to
people with developmental disabilities, or
B. have been employed for a minimum of two years to render care and
service in a facility operated, licensed or authorized by the office [of
mental retardation and] FOR PEOPLE WITH developmental disabilities, or
C. have been approved by the commissioner of [mental retardation and]
THE OFFICE FOR PEOPLE WITH developmental disabilities in accordance with
regulations promulgated by such commissioner. Such regulations shall
require that a physician or licensed psychologist possess specialized
training or three years experience in treating [mental retardation]
INTELLECTUAL DISABILITY. A record of such consultation shall be
included in the [mentally retarded person's] PERSON WHO IS INTELLECTUAL-
LY DISABLED'S medical record;
(ii) if the person is in or was transferred from a residential facili-
ty operated, licensed or authorized by the office [of mental retardation
and] FOR PEOPLE WITH developmental disabilities, the chief executive
officer of the agency or organization operating such facility and the
mental hygiene legal service; and
(iii) if the person is not in and was not transferred from such a
facility or program, the commissioner of [mental retardation and] THE
OFFICE FOR PEOPLE WITH developmental disabilities, or his or her desig-
nee.
5. Objection to health care decision. (a) Suspension. A health care
decision made pursuant to subdivision four of this section shall be
suspended, pending judicial review, except if the suspension would in
reasonable medical judgment be likely to result in the death of the
[mentally retarded] person WHO IS INTELLECTUALLY DISABLED, in the event
of an objection to that decision at any time by:
(i) the [mentally retarded] person WHO IS INTELLECTUALLY DISABLED on
whose behalf such decision was made; or
(ii) a parent or adult sibling who either resides with or has main-
tained substantial and continuous contact with the [mentally retarded]
person WHO IS INTELLECTUALLY DISABLED; or
(iii) the attending physician, as defined in subdivision two of
section twenty-nine hundred eighty of the public health law; or
(iv) any other health care practitioner providing services to the
[mentally retarded] person WHO IS INTELLECTUALLY DISABLED, who is
licensed pursuant to article one hundred thirty-one, one hundred thir-
ty-one-B, one hundred thirty-two, one hundred thirty-three, one hundred
thirty-six, one hundred thirty-nine, one hundred forty-one, one hundred
forty-three, one hundred forty-four, one hundred fifty-three, one
hundred fifty-four, one hundred fifty-six, one hundred fifty-nine or one
hundred sixty-four of the education law; or
(v) the chief executive officer identified in subparagraph (ii) of
paragraph (e) of subdivision four of this section; or
(vi) if the person is in or was transferred from a residential facili-
ty or program operated, approved or licensed by the office [of mental
retardation and] FOR PEOPLE WITH developmental disabilities, the mental
hygiene legal service; or
(vii) if the person is not in and was not transferred from such a
facility or program, the commissioner of [mental retardation and] THE
S. 7132--A 8
OFFICE FOR PEOPLE WITH developmental disabilities, or his or her desig-
nee.
(b) Form of objection. Such objection shall occur orally or in writ-
ing.
(c) Notification. In the event of the suspension of a health care
decision pursuant to this subdivision, the objecting party shall prompt-
ly notify the guardian and the other parties identified in paragraph (a)
of this subdivision, and the attending physician shall record such
suspension in the [mentally retarded person's] PERSON WHO IS INTELLECTU-
ALLY DISABLED'S medical chart.
(d) Dispute mediation. In the event of an objection pursuant to this
subdivision, at the request of the objecting party or person or entity
authorized to act as a guardian under this section, except a surrogate
decision making committee established pursuant to article eighty of the
mental hygiene law, such objection shall be referred to a dispute medi-
ation system, established pursuant to section two thousand nine hundred
seventy-two of the public health law or similar entity for mediating
disputes in a hospice, such as a patient's advocate's office, hospital
chaplain's office or ethics committee, as described in writing and
adopted by the governing authority of such hospice, for non-binding
mediation. In the event that such dispute cannot be resolved within
seventy-two hours or no such mediation entity exists or is reasonably
available for mediation of a dispute, the objection shall proceed to
judicial review pursuant to this subdivision. The party requesting medi-
ation shall provide notification to those parties entitled to notice
pursuant to paragraph (a) of this subdivision.
6. Special proceeding authorized. The guardian, the attending physi-
cian, as defined in subdivision two of section twenty-nine hundred
eighty of the public health law, the chief executive officer identified
in subparagraph (ii) of paragraph (e) of subdivision four of this
section, the mental hygiene legal service (if the person is in or was
transferred from a residential facility or program operated, approved or
licensed by the office [of mental retardation and] FOR PEOPLE WITH
developmental disabilities) or the commissioner of [mental retardation
and] THE OFFICE FOR PEOPLE WITH developmental disabilities or his or her
designee (if the person is not in and was not transferred from such a
facility or program) may commence a special proceeding in a court of
competent jurisdiction with respect to any dispute arising under this
section, including objecting to the withdrawal or withholding of life-
sustaining treatment because such withdrawal or withholding is not in
accord with the criteria set forth in this section.
7. Provider's obligations. (a) A health care provider shall comply
with the health care decisions made by a guardian in good faith pursuant
to this section, to the same extent as if such decisions had been made
by the [mentally retarded] person WHO IS INTELLECTUALLY DISABLED, if
such person had capacity.
(b) Notwithstanding paragraph (a) of this subdivision, nothing in this
section shall be construed to require a private hospital to honor a
guardian's health care decision that the hospital would not honor if the
decision had been made by the [mentally retarded] person WHO IS INTEL-
LECTUALLY DISABLED, if such person had capacity, because the decision is
contrary to a formally adopted written policy of the hospital expressly
based on religious beliefs or sincerely held moral convictions central
to the hospital's operating principles, and the hospital would be
permitted by law to refuse to honor the decision if made by such person,
provided:
S. 7132--A 9
(i) the hospital has informed the guardian of such policy prior to or
upon admission, if reasonably possible; and
(ii) the [mentally retarded] person WHO IS INTELLECTUALLY DISABLED is
transferred promptly to another hospital that is reasonably accessible
under the circumstances and is willing to honor the guardian's decision.
If the guardian is unable or unwilling to arrange such a transfer, the
hospital's refusal to honor the decision of the guardian shall consti-
tute an objection pursuant to subdivision five of this section.
(c) Notwithstanding paragraph (a) of this subdivision, nothing in this
section shall be construed to require an individual health care provider
to honor a guardian's health care decision that the individual would not
honor if the decision had been made by the [mentally retarded] person
WHO IS INTELLECTUALLY DISABLED, if such person had capacity, because the
decision is contrary to the individual's religious beliefs or sincerely
held moral convictions, provided the individual health care provider
promptly informs the guardian and the facility, if any, of his or her
refusal to honor the guardian's decision. In such event, the facility
shall promptly transfer responsibility for the [mentally retarded]
person WHO IS INTELLECTUALLY DISABLED to another individual health care
provider willing to honor the guardian's decision. The individual health
care provider shall cooperate in facilitating such transfer of the
patient.
(d) Notwithstanding the provisions of any other paragraph of this
subdivision, if a guardian directs the provision of life-sustaining
treatment, the denial of which in reasonable medical judgment would be
likely to result in the death of the [mentally retarded] person WHO IS
INTELLECTUALLY DISABLED, a hospital or individual health care provider
that does not wish to provide such treatment shall nonetheless comply
with the guardian's decision pending either transfer of the [mentally
retarded] person WHO IS INTELLECTUALLY DISABLED to a willing hospital or
individual health care provider, or judicial review.
(e) Nothing in this section shall affect or diminish the authority of
a surrogate decision-making panel to render decisions regarding major
medical treatment pursuant to article eighty of the mental hygiene law.
8. Immunity. (a) Provider immunity. No health care provider or employ-
ee thereof shall be subjected to criminal or civil liability, or be
deemed to have engaged in unprofessional conduct, for honoring reason-
ably and in good faith a health care decision by a guardian, or for
other actions taken reasonably and in good faith pursuant to this
section.
(b) Guardian immunity. No guardian shall be subjected to criminal or
civil liability for making a health care decision reasonably and in good
faith pursuant to this section.
S 5. Section 1751 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1751. Petition for appointment; by whom made
A petition for the appointment of a guardian of the person or proper-
ty, or both, of a [mentally retarded or developmentally disabled] person
WHO IS INTELLECTUALLY DISABLED OR A PERSON WHO IS DEVELOPMENTALLY DISA-
BLED may be made by a parent, any interested person eighteen years of
age or older on behalf of the [mentally retarded or developmentally
disabled] person WHO IS INTELLECTUALLY DISABLED OR A PERSON WHO IS
DEVELOPMENTALLY DISABLED including a corporation authorized to serve as
a guardian as provided for by this article, or by the [mentally retarded
or developmentally disabled] person WHO IS INTELLECTUALLY DISABLED OR A
S. 7132--A 10
PERSON WHO IS DEVELOPMENTALLY DISABLED when such person is eighteen
years of age or older.
S 6. Section 1752 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1752. Petition for appointment; contents
The petition for the appointment of a guardian shall be filed with the
court on forms to be prescribed by the state chief administrator of the
courts. Such petition for a guardian of a [mentally retarded or develop-
mentally disabled] person WHO IS INTELLECTUALLY DISABLED OR A PERSON WHO
IS DEVELOPMENTALLY DISABLED shall include, but not be limited to, the
following information:
1. the full name, date of birth and residence of the [mentally
retarded or developmentally disabled] person WHO IS INTELLECTUALLY DISA-
BLED OR A PERSON WHO IS DEVELOPMENTALLY DISABLED;
2. the name, age, address and relationship or interest of the peti-
tioner to the [mentally retarded or developmentally disabled] person WHO
IS INTELLECTUALLY DISABLED OR A PERSON WHO IS DEVELOPMENTALLY DISABLED;
3. the names of the father, the mother, children, adult siblings if
eighteen years of age or older, the spouse and primary care physician if
other than a physician having submitted a certification with the peti-
tion, if any, of the [mentally retarded or developmentally disabled]
person WHO IS INTELLECTUALLY DISABLED OR A PERSON WHO IS DEVELOPMENTALLY
DISABLED and whether or not they are living, and if living, their
addresses and the names and addresses of the nearest distributees of
full age who are domiciliaries, if both parents are dead;
4. the name and address of the person with whom the [mentally retarded
or developmentally disabled] person WHO IS INTELLECTUALLY DISABLED OR A
PERSON WHO IS DEVELOPMENTALLY DISABLED resides if other than the parents
or spouse;
5. the name, age, address, education and other qualifications, and
consent of the proposed guardian, standby and alternate guardian, if
other than the parent, spouse, adult child if eighteen years of age or
older or adult sibling if eighteen years of age or older, and if such
parent, spouse or adult child be living, why any of them should not be
appointed guardian;
6. the estimated value of real and personal property and the annual
income therefrom and any other income including governmental entitle-
ments to which the [mentally retarded or developmentally disabled]
person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY
DISABLED is entitled; and
7. any circumstances which the court should consider in determining
whether it is in the best interests of the [mentally retarded or devel-
opmentally disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO
IS DEVELOPMENTALLY DISABLED TO not be [be] present at the hearing if
conducted.
S 7. Section 1753 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1753. Persons to be served
1. Upon presentation of the petition, process shall issue to:
(a) the parent or parents, adult children, if the petitioner is other
than a parent, adult siblings, if the petitioner is other than a parent,
and if the [mentally retarded or developmentally disabled] person WHO IS
INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED is
married, to the spouse, if their residences are known;
(b) the person having care and custody of the [mentally retarded or
developmentally disabled] person WHO IS INTELLECTUALLY DISABLED OR
S. 7132--A 11
PERSON WHO IS DEVELOPMENTALLY DISABLED, or with whom such person resides
if other than the parents or spouse; and
(c) the [mentally retarded or developmentally disabled] person WHO IS
INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED if
fourteen years of age or older for whom an application has been made in
such person's behalf.
2. Upon presentation of the petition, notice of such petition shall be
served by certified mail to:
(a) the adult siblings if the petitioner is a parent, and adult chil-
dren if the petitioner is a parent;
(b) the mental hygiene legal service in the judicial department where
the facility, as defined in subdivision (a) of section 47.01 of the
mental hygiene law, is located if the [mentally retarded or develop-
mentally disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO
IS DEVELOPMENTALLY DISABLED resides in such a facility;
(c) in all cases, to the director in charge of a facility licensed or
operated by an agency of the state of New York, if the [mentally
retarded or developmentally disabled] person WHO IS INTELLECTUALLY DISA-
BLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED resides in such facility;
(d) one other person if designated in writing by the [mentally
retarded or developmentally disabled] person WHO IS INTELLECTUALLY DISA-
BLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED; and
(e) such other persons as the court may deem proper.
3. No process or notice shall be necessary to a parent, adult child,
adult sibling, or spouse of the [mentally retarded or developmentally
disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVEL-
OPMENTALLY DISABLED who has been declared by a court as being incompe-
tent. In addition, no process or notice shall be necessary to a spouse
who is divorced from the [mentally retarded or developmentally disabled]
person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY
DISABLED, and to a parent, adult child, adult sibling when it shall
appear to the satisfaction of the court that such person or persons have
abandoned the [mentally retarded or developmentally disabled] person WHO
IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED.
S 8. Section 1754 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1754. Hearing and trial
1. Upon a petition for the appointment of a guardian of a [mentally
retarded or developmentally disabled] person WHO IS INTELLECTUALLY DISA-
BLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED eighteen years of age or
older, the court shall conduct a hearing at which such person shall have
the right to jury trial. The right to a jury trial shall be deemed
waived by failure to make a demand therefor. The court may in its
discretion dispense with a hearing for the appointment of a guardian,
and may in its discretion appoint a guardian ad litem, or the mental
hygiene legal service if such person is a resident of a mental hygiene
facility as defined in subdivision (a) of section 47.01 of the mental
hygiene law, to recommend whether the appointment of a guardian as
proposed in the application is in the best interest of the [mentally
retarded or developmentally disabled] person WHO IS INTELLECTUALLY DISA-
BLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED, provided however, that
such application has been made by:
(a) both parents or the survivor; or
(b) one parent and the consent of the other parent; or
(c) any interested party and the consent of each parent.
S. 7132--A 12
2. When it shall appear to the satisfaction of the court that a parent
or parents not joining in or consenting to the application have aban-
doned the [mentally retarded or developmentally disabled] person WHO IS
INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED or are
not otherwise required to receive notice, the court may dispense with
such parent's consent in determining the need to conduct a hearing for a
person under the age of eighteen. However, if the consent of both
parents or the surviving parent is dispensed with by the court, a hear-
ing shall be held on the application.
3. If a hearing is conducted, the [mentally retarded or develop-
mentally disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO
IS DEVELOPMENTALLY DISABLED shall be present unless it shall appear to
the satisfaction of the court on the certification of the certifying
physician that the [mentally retarded or developmentally disabled]
person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY
DISABLED is medically incapable of being present to the extent that
attendance is likely to result in physical harm to such [mentally
retarded or developmentally disabled] person WHO IS INTELLECTUALLY DISA-
BLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED, or under such other
circumstances which the court finds would not be in the best interest of
the [mentally retarded or developmentally disabled] person WHO IS INTEL-
LECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED.
4. If either a hearing is dispensed with pursuant to subdivisions one
and two of this section or the [mentally retarded or developmentally
disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVEL-
OPMENTALLY DISABLED is not present at the hearing pursuant to subdivi-
sion three of this section, the court may appoint a guardian ad litem if
no mental hygiene legal service attorney is authorized to act on behalf
of the [mentally retarded or developmentally disabled] person WHO IS
INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED. The
guardian ad litem or mental hygiene legal service attorney, if
appointed, shall personally interview the [mentally retarded or develop-
mentally disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO
IS DEVELOPMENTALLY DISABLED and shall submit a written report to the
court.
5. If, upon conclusion of such hearing or jury trial or if none be
held upon the application, the court is satisfied that the best inter-
ests of the [mentally retarded or developmentally disabled] person WHO
IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED
will be promoted by the appointment of a guardian of the person or prop-
erty, or both, it shall make a decree naming such person or persons to
serve as such guardians.
S 9. Section 1755 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1755. Modification order
Any [mentally retarded or developmentally disabled] person WHO IS
INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED eigh-
teen years of age or older, or any person on behalf of any [mentally
retarded or developmentally disabled] person WHO IS INTELLECTUALLY DISA-
BLED OR PERSON WHO IS DEVELOPMENTAL DISABLED for whom a guardian has
been appointed, may apply to the court having jurisdiction over the
guardianship order requesting modification of such order in order to
protect the [mentally retarded or developmentally disabled person's]
PERSON WHO IS INTELLECTUALLY DISABLED'S, OR PERSON WHO IS DEVELOP-
MENTALLY DISABLED'S financial situation and/or his or her personal
interests. The court may, upon receipt of any such request to modify the
S. 7132--A 13
guardianship order, appoint a guardian ad litem. The court shall so
modify the guardianship order if in its judgment the interests of the
guardian are adverse to those of the [mentally retarded or develop-
mentally disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO
IS DEVELOPMENTALLY DISABLED or if the interests of justice will be best
served including, but not limited to, facts showing the necessity for
protecting the personal and/or financial interests of the [mentally
retarded or developmentally disabled] person WHO IS INTELLECTUALLY DISA-
BLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED.
S 10. Section 1756 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1756. Limited guardian of the property
When it shall appear to the satisfaction of the court that such
[mentally retarded or developmentally disabled] person WHO IS INTELLEC-
TUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED for whom an
application for guardianship is made is eighteen years of age or older
and is wholly or substantially self-supporting by means of his or her
wages or earnings from employment, the court is authorized and empowered
to appoint a limited guardian of the property of such [mentally retarded
or developmentally disabled] person WHO IS INTELLECTUALLY DISABLED OR
PERSON WHO IS DEVELOPMENTALLY DISABLED who shall receive, manage,
disburse and account for only such property of said [mentally retarded
or developmentally disabled] person WHO IS INTELLECTUALLY DISABLED OR
PERSON WHO IS DEVELOPMENTALLY DISABLED as shall be received from other
than the wages or earnings of said person.
The [mentally retarded or developmentally disabled] person WHO IS
INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED for
whom a limited guardian of the property has been appointed shall have
the right to receive and expend any and all wages or other earnings of
his or her employment and shall have the power to contract or legally
bind himself or herself for such sum of money not exceeding one month's
wages or earnings from such employment or three hundred dollars, which-
ever is greater, or as otherwise authorized by the court.
S 11. Section 1757 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, the section heading as amended by chap-
ter 290 of the laws of 1992, subdivision 2 as amended by chapter 260 of
the laws of 2009, and subdivision 3 as added by chapter 294 of the laws
of 2012, is amended to read as follows:
S 1757. Standby guardian of a [mentally retarded or developmentally
disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO
IS DEVELOPMENTALLY DISABLED
1. Upon application, a standby guardian of the person or property or
both of a [mentally retarded or developmentally disabled] person WHO IS
INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED may be
appointed by the court. The court may also, upon application, appoint an
alternate and/or successive alternates to such standby guardian, to act
if such standby guardian shall die, or become incapacitated, or shall
renounce. Such appointments by the court shall be made in accordance
with the provisions of this article.
2. Such standby guardian, or alternate in the event of such standby
guardian's death, incapacity or renunciation, shall without further
proceedings be empowered to assume the duties of his or her office imme-
diately upon death, renunciation or adjudication of incompetency of the
guardian or standby guardian appointed pursuant to this article, subject
only to confirmation of his or her appointment by the court within one
hundred eighty days following assumption of his or her duties of such
S. 7132--A 14
office. Before confirming the appointment of the standby guardian or
alternate guardian, the court may conduct a hearing pursuant to section
seventeen hundred fifty-four of this article upon petition by anyone on
behalf of the [mentally retarded or developmentally disabled] person WHO
IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED or
the [mentally retarded or developmentally disabled] person WHO IS INTEL-
LECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED if such
person is eighteen years of age or older, or upon its discretion.
3. Failure of a standby or alternate standby guardian to assume the
duties of guardian, seek court confirmation or to renounce the guardian-
ship within sixty days of written notice by certified mail or personal
delivery given by or on behalf of the [mentally retarded or develop-
mentally disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO
IS DEVELOPMENTALLY DISABLED of a prior guardian's inability to serve and
the standby or alternate standby guardian's duty to serve, seek court
confirmation or renounce such role shall allow the court to:
(a) deem the failure an implied renunciation of guardianship, and
(b) authorize, notwithstanding the time period provided for in subdi-
vision two of this section to seek court confirmation, any remaining
standby or alternate standby guardian to serve in such capacity provided
(i) an application for confirmation and appropriate notices pursuant to
subdivision one of section seventeen hundred fifty-three of this article
are filed, or (ii) an application for modification of the guardianship
order pursuant to section seventeen hundred fifty-five of this article
is filed.
S 12. Section 1758 of the surrogate's court procedure act, as amended
by chapter 427 of the laws of 2013, is amended to read as follows:
S 1758. Court jurisdiction
1. The jurisdiction of the court to hear proceedings pursuant to this
article shall be subject to article eighty-three of the mental hygiene
law.
2. After the appointment of a guardian, standby guardian or alternate
guardians, the court shall have and retain general jurisdiction over the
[mentally retarded or developmentally disabled] person WHO IS INTELLEC-
TUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED for whom such
guardian shall have been appointed, to take of its own motion or to
entertain and adjudicate such steps and proceedings relating to such
guardian, standby, or alternate guardianship as may be deemed necessary
or proper for the welfare of such [mentally retarded or developmentally
disabled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVEL-
OPMENTALLY DISABLED.
S 13. Section 1759 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1759. Duration of guardianship
1. Such guardianship shall not terminate at the age of majority or
marriage of such [mentally retarded or developmentally disabled] person
WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED
but shall continue during the life of such person, or until terminated
by the court.
2. A person eighteen years or older for whom such a guardian has been
previously appointed or anyone, including the guardian, on behalf of a
[mentally retarded or developmentally disabled] person WHO IS INTELLEC-
TUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED for whom a
guardian has been appointed may petition the court which made such
appointment or the court in his or her county of residence to have the
guardian discharged and a successor appointed, or to have the guardian
S. 7132--A 15
of the property designated as a limited guardian of the property, or to
have the guardianship order modified, dissolved or otherwise amended.
Upon such a petition for review, the court shall conduct a hearing
pursuant to section seventeen hundred fifty-four of this article.
3. Upon marriage of such [mentally retarded or developmentally disa-
bled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOP-
MENTALLY DISABLED for whom such a guardian has been appointed, the court
shall, upon request of the [mentally retarded or developmentally disa-
bled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOP-
MENTALLY DISABLED, spouse, or any other person acting on behalf of the
[mentally retarded or developmentally disabled] person WHO IS INTELLEC-
TUALLY DISABLED OR PERSON WHO IS DEVELOPMENTALLY DISABLED, review the
need, if any, to modify, dissolve or otherwise amend the guardianship
order including, but not limited to, the appointment of the spouse as
standby guardian. The court, in its discretion, may conduct such review
pursuant to section seventeen hundred fifty-four of this article.
S 14. Section 1760 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1760. Corporate guardianship
No corporation may be appointed guardian of the person under the
provisions of this article, except that a non-profit corporation organ-
ized and existing under the laws of the state of New York and having the
corporate power to act as guardian of [mentally retarded or develop-
mentally disabled persons] A PERSON WHO IS INTELLECTUALLY DISABLED OR
PERSON WHO IS DEVELOPMENTALLY DISABLED may be appointed as the guardian
of the person only of such [mentally retarded or developmentally disa-
bled] person WHO IS INTELLECTUALLY DISABLED OR PERSON WHO IS DEVELOP-
MENTALLY DISABLED.
S 15. Section 1761 of the surrogate's court procedure act, as added by
chapter 675 of the laws of 1989, is amended to read as follows:
S 1761. Application of other provisions
To the extent that the context thereof shall admit, the provisions of
article seventeen of this act shall apply to all proceedings under this
article with the same force and [affect] EFFECT as if an "infant", as
therein referred to, were a ["mentally retarded" or "developmentally
disabled person"] "PERSON WHO IS INTELLECTUALLY DISABLED" OR "PERSON WHO
IS DEVELOPMENTALLY DISABLED" as herein defined, and a "guardian" as
therein referred to were a "guardian of the [mentally retarded] person
WHO IS INTELLECTUALLY DISABLED" or a "guardian of a [developmentally
disabled] person WHO IS DEVELOPMENTALLY DISABLED" as herein provided
for.
S 16. This act shall take effect immediately.