NY State Senate Bill 2017-S4083A

Senate Bill S4083A

2017-2018 Legislative Session

Requires the petitioner for appointment of a guardian for an incapacitated person to identify all other persons who may be able to manage the affairs of such incapacitated person

download bill text pdf

Archive: Last Bill Status - In Senate Committee Mental Health And Developmental Disabilities Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to mental health and developmental disabilities
Jul 26, 2017	print number 4083a
Jul 26, 2017	amend and recommit to mental health and developmental disabilities
Feb 03, 2017	referred to mental health and developmental disabilities

Bill Amendments

Original

A (Active)

2017-S4083 - Details

See Assembly Version of this Bill:: A1350
Current Committee:: Senate Mental Health And Developmental Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Amd Ment Hyg L, generally
Versions Introduced in Other Legislative Sessions:: 2015-2016: S4642, A6510
2019-2020: S4722, A5609
2021-2022: S3523, A2536
2023-2024: S8133, A3772

2017-S4083 - Summary

Requires the petitioner for appointment as the guardian for an incapacitated person to identify all other persons who may be able to manage the affairs of such incapacitated person; prohibits appointment solely for the purposes of bill collection or resolving a bill collection dispute.

2017-S4083 - Sponsor Memo

                                 BILL NUMBER:  S4083

 TITLE OF BILL :

An act to amend the mental hygiene law, in relation to requiring
petitioners for appointment of a guardian to identify other persons
who may be able to manage the affairs of an incapacitated person

 PURPOSE OR GENERAL IDEA OF BILL :

This legislation would prevent the use of the guardianship law for the
primary purpose of bill collection and would correct erroneous cross
references to the power of attorney law.

 SUMMARY OF PROVISIONS :

Section 1 of the bill amends subdivision (e) of Section 81.03 of the
mental hygiene law to expand the list of available resources, people
who would be served notice of a guardianship petition including family
members, people granted legal authority to manage the personal,
medical and/or financial affairs of the alleged incapacitated person
and persons or entities that have demonstrated a genuine interest in
promoting the best interests of the alleged incapacitated person
(AIP).

Section 2 of the bill amends paragraph 7 of subdivision (a) of Section

81.06 of the mental hygiene law to prevent nursing homes from filing
guardianship petitions where the petition is brought primarily for
purposes of bill collection or resolving a bill collection dispute.

Section 4 of the bill amends paragraph 14, of subdivision (a) of
section 81.08 of the mental hygiene law to require the petitioner to
provide information about the steps take to identify available
resources, along with an explanation for why such resources are not
sufficient or reliable to meet the AIP's needs without the appointment
of a guardian.

Section 5 of the bill amends subdivision (a) of section 81.08 of the
mental hygiene law by renumbering paragraph 15 and adding new
paragraphs 15, 16 and 17 that enhance the pleading requirements of a
guardianship petition relating to available resources considered. The
new paragraphs require the petitioner to provide information to the
court about the available guardianship resources considered by the
petitioner, information about any documents known to the petitioner
that grant such resources legal authority to manage the affairs of the
AIP, where relevant, specific reasons for seeking revocation of any
appointments or delegations made by the ALP, and a verification that
the petition is not brought for the purpose of bill collection or to
resolve a bill collection dispute.

Section 8 of the bill amends subdivision (e) of section 81.19 of the
mental hygiene law to preclude persons or corporations whose only
interest in the ALP is that of a creditor or those who provide day
care, health care, educational or residential services to the AIP from
serving as guardians.

Sections 3, 6, 7, 9 and 10 of the bill amend sections 81.09, 81.19,
81.22 and 81.29 to fix erroneous cross-references to the power of
attorney law that was modified in 2008.

Section 11 of the bill provides for an effective date of 180 days
after enactment.

 JUSTIFICATION :


A recent article published in the New York Times, "To Collect Debts,
Nursing Homes Are Seizing Control Over Patients", January 25, 2015
highlighted a disturbing practice where some nursing homes are filing
guardianship petitions against vulnerable disabled nursing home
residents, over the objection of family members, primarily as a means
of bill collection. The article details how a nursing home appears to
have filed a guardianship petition against a resident of the facility
suffering from dementia, primarily for the purpose of resolving a bill
collection dispute. The petition was filed over the objections of the
resident's husband who had power of attorney and a health care proxy.
Ultimately the nursing home withdrew the petition, but the husband had
to spend a significant amount of money to challenge the petition and
to assert his legal rights.

Guardianship transfers an incapacitated person's legal rights to make
financial and personal care decisions to someone appointed by the
court. Guardianship petitions are generally filed by family members to
help them meet the personal or property management needs of an
incapacitated relative. The guardianship statue was enacted in 1993 by
the legislature to protect disabled individuals who are unable to
manage their affairs on their own because of incapacity and to help
meet their needs in a manner that affords them the greatest amount of
independence and self- determination in all decisions affecting their
lives.

However, it appears that nursing homes have been increasingly using
these petitions to collect unpaid bills or to coerce settlement of
bill disputes with residents. According to a study done by researchers
at Hunter College, over twelve percent of guardianship petitions filed
in Manhattan over the last decade were brought by nursing homes
against their residents. While some of these cases may have had
legitimate purposes, there is significant concern that many of these
cases were likely used as a means to collect bills.

One judge has ruled this misuse of the guardianship statute - Article
81 of the mental hygiene law - as an abuse of the law. See In re G.S.,
17 Misc. 3d 303, 841 N.Y.S.2d 428 (Sup.Ct.2007). Even if the petition
is ultimately unsuccessful, the mere filing causes the family to spend
significant sums of money for legal representation to defend against a
stranger being appointed a guardian of a loved one.  As a result,
families may agree to settle bill disputes with a nursing home
facility in exchange for discontinuance or withdrawal of the
guardianship petition.

We have also heard concerns from disability advocates that nursing
homes may also refuse to recognize the legal rights of relatives under
health care proxies or powers of attorney.

This proposal would help ensure that nursing home facilities do not
file guardianship petitions primarily as a means of resolving bill
disputes. The proposal would still permit hospitals or nursing homes
to commence guardianship actions to help meet the needs of an
incapacitated person e.g. to facilitate discharge planning or to
assist the person with becoming Medicaid-eligible.

The proposal will also dissuade such facilities from circumventing the
intent of the incapacitated person by making it harder for them to
deny, without legitimate basis, the legal rights of relatives, friends
or others with lawfully executed appointments or delegations made by
the alleged incapacitated person to meet his/her needs.

 PRIOR LEGISLATIVE HISTORY :

2016: S4642-A

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect on the one hundred eightieth day after it
shall have become law.

2017-S4083 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4083
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 3, 2017
                                ___________
 
 Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Mental Health and Develop-
   mental Disabilities
 
 AN ACT to amend the mental hygiene law, in relation to  requiring  peti-
   tioners  for  appointment  of a guardian to identify other persons who
   may be able to manage the affairs of an incapacitated person
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision (e) of section 81.03 of the mental hygiene law,
 as  amended  by  chapter  438 of the laws of 2004, is amended to read as
 follows:
   (e) "available resources" means resources such as, but not limited to,
 ALL PERSONS IDENTIFIED IN SUBPARAGRAPHS (I) THROUGH  (IV)  OF  PARAGRAPH
 ONE  OF SUBDIVISION (G) OF SECTION 81.07 OF THIS ARTICLE, visiting nurs-
 es, homemakers, home health  aides,  adult  day  care  and  multipurpose
 senior citizen centers, powers of attorney, health care proxies, trusts,
 representative and protective payees, and residential care facilities.
   §  2.  Paragraph  7  of subdivision (a) of section 81.06 of the mental
 hygiene law, as amended by chapter 438 of the laws of 2004,  is  amended
 to read as follows:
   7. the chief executive officer, or the designee of the chief executive
 officer,  of  a facility in which the person alleged to be incapacitated
 is a patient or resident, EXCEPT  FOR  WHERE  THE  PETITION  IS  BROUGHT
 PRIMARILY FOR PURPOSES OF BILL COLLECTION OR RESOLVING A BILL COLLECTION
 DISPUTE.   PROVIDED, HOWEVER, WHERE THERE IS NO OTHER LEGALLY AUTHORIZED
 OR OTHERWISE AVAILABLE RESOURCE, THE CHIEF EXECUTIVE OFFICER, OR  DESIG-
 NEE  OF  THE CHIEF EXECUTIVE OFFICER, OF SUCH FACILITY DESCRIBED IN THIS
 ARTICLE MAY FILE A PETITION UNDER THIS ARTICLE WHERE A GUARDIAN IS NEED-
 ED TO APPLY FOR OR ENGAGE IN PLANNING NECESSARY TO ESTABLISH ELIGIBILITY
 FOR MEDICAL ASSISTANCE AS PROVIDED UNDER TITLE ELEVEN OF ARTICLE FIVE OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02869-02-7

 S. 4083                             2
 
 THE SOCIAL SERVICES LAW FOR THE BENEFIT OF  THE  PERSON  ALLEGED  TO  BE
 INCAPACITATED.
   §  3.  Subparagraph (iii) of paragraph 1 of subdivision (g) of section
 81.07 of the mental hygiene law, as amended by chapter 438 of  the  laws
 of 2004, is amended to read as follows:
   (iii)  any  person  or persons designated by the alleged incapacitated
 person with authority pursuant to [sections 5-1501, 5-1505, and  5-1506]
 TITLE  FIFTEEN  OF  ARTICLE  FIVE  of  the  general  obligations law, or
 sections two thousand nine hundred five and two  thousand  nine  hundred
 eighty-one of the public health law, if known to the petitioner; and
   §  4.  Paragraph  14 of subdivision (a) of section 81.08 of the mental
 hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
 read as follows:
   14.  the available resources, if any, that have been considered by the
 petitioner, THE STEPS TAKEN TO IDENTIFY  AVAILABLE  RESOURCES,  and  the
 petitioner's  opinion as to [their sufficiency and reliability] WHY SUCH
 RESOURCES ARE NOT SUFFICIENT OR RELIABLE  ENOUGH  TO  MEET  THE  ALLEGED
 INCAPACITATED PERSON'S NEEDS WITHOUT THE APPOINTMENT OF A GUARDIAN;
   §  5.  Paragraph  15 of subdivision (a) of section 81.08 of the mental
 hygiene law is renumbered paragraph 18, and three new paragraphs 15,  16
 and 17 are added to read as follows:
   15.  FOR  ALL  AVAILABLE  RESOURCES  CONSIDERED BY THE PETITIONER, THE
 NAME, ADDRESS, TELEPHONE NUMBER ALONG WITH ANY  OTHER  CONTACT  INFORMA-
 TION, RELATIONSHIP TO THE ALLEGED INCAPACITATED PERSON AND ANY DOCUMENTS
 KNOWN TO THE PETITIONER THAT GRANT THE AVAILABLE RESOURCE LEGAL AUTHORI-
 TY  TO  MANAGE  THE  PERSONAL,  MEDICAL  AND/OR FINANCIAL AFFAIRS OF THE
 ALLEGED INCAPACITATED PERSON;
   16. IF THE PETITIONER SEEKS TO REVOKE ANY LAWFULLY  EXECUTED  APPOINT-
 MENT  OR DELEGATION MADE BY THE ALLEGED INCAPACITATED PERSON PURSUANT TO
 TITLE FIFTEEN OF ARTICLE FIVE OF THE GENERAL  OBLIGATIONS  LAW,  SECTION
 TWENTY-NINE  HUNDRED SIXTY-FIVE OR TWENTY-NINE HUNDRED EIGHTY-ONE OF THE
 PUBLIC HEALTH LAW, OR ANY LIVING WILL,  THE  PETITION  SHALL  SET  FORTH
 SPECIFIC REASONS FOR THE REVOCATION;
   17. AN AFFIRMATIVE STATEMENT THAT THE PETITION IS NOT BROUGHT PRIMARI-
 LY  FOR  THE  PURPOSE  OF BILL COLLECTION OR RESOLVING A BILL COLLECTION
 DISPUTE;
   § 6. Subparagraph (xi) of paragraph 5 of subdivision  (c)  of  section
 81.09  of  the mental hygiene law, as amended by chapter 438 of the laws
 of 2004, is amended to read as follows;
   (xi) has the person alleged to be incapacitated made  any  appointment
 or  delegation  pursuant  to  [section  5-1501, 5-1505, or 5-1506] TITLE
 FIFTEEN OF ARTICLE FIVE of the  general  obligations  law,  section  two
 thousand nine hundred sixty-five or two thousand nine hundred eighty-one
 of the public health law, or a living will;
   §  7.  Subdivision  (c) of section 81.16 of the mental hygiene law, is
 amended by adding a new paragraph 7 to read as follows:
   7. THE COURT SHALL NOT AUTHORIZE A GUARDIAN TO COMPROMISE OR SATISFY A
 CREDITOR'S CLAIM INVOKED BY THE PETITIONER AGAINST THE PERSON ALLEGED TO
 BE INCAPACITATED.
   § 8. Paragraph 1 of subdivision (d) of section  81.19  of  the  mental
 hygiene  law, as added by chapter 698 of the laws of 1992, is amended to
 read as follows:
   1. any appointment or delegation made by  the  person  alleged  to  be
 incapacitated  in  accordance  with  the  provisions of [section 5-1501,
 5-1601 or 5-1602] TITLE FIFTEEN OF ARTICLE FIVE  of  the  general  obli-

 S. 4083                             3
 
 gations  law  and  sections two thousand nine hundred sixty-five and two
 thousand nine hundred eighty-one of the public health law;
   §  9. The opening paragraph of subdivision (e) of section 81.19 of the
 mental hygiene law, as added by chapter 698 of  the  laws  of  1992,  is
 amended to read as follows:
   [Unless  the court finds that no other person or corporation is avail-
 able or willing to act as guardian, or to provide  needed  services  for
 the incapacitated person, the] THE following persons or corporations may
 not serve as guardian:
   §  10.  Paragraph  2 of subdivision (b) of section 81.22 of the mental
 hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
 read as follows:
   2.  revoke  any  appointment  or  delegation made by the incapacitated
 person pursuant to [sections 5-1501, 5-1601 and 5-1602] TITLE FIFTEEN OF
 ARTICLE FIVE of the general obligations law, sections two thousand  nine
 hundred  sixty-five  and  two  thousand  nine  hundred eighty-one of the
 public health law, or any living will.
   § 11. Subdivision (d) of section 81.29 of the mental hygiene  law,  as
 amended  by  chapter  176  of  the  laws  of 2008, is amended to read as
 follows:
   (d) If the court determines  that  the  person  is  incapacitated  and
 appoints  a  guardian, the court may modify, amend, or revoke any previ-
 ously executed appointment, power, or delegation under [section  5-1501,
 5-1505,  or  5-1506]  TITLE FIFTEEN OF ARTICLE FIVE of the general obli-
 gations law or section two  thousand  nine  hundred  sixty-five  of  the
 public  health  law,  or section two thousand nine hundred eighty-one of
 the public health law notwithstanding section two thousand nine  hundred
 ninety-two  of  the  public  health law, or any contract, conveyance, or
 disposition during lifetime or to take effect upon death,  made  by  the
 incapacitated  person  prior  to  the appointment of the guardian if the
 court finds that the previously executed appointment, power, delegation,
 contract, conveyance, or disposition during lifetime or to  take  effect
 upon  death, was made while the person was incapacitated or if the court
 determines that there has been a breach of fiduciary duty by the  previ-
 ously  appointed  agent. In such event, the court shall require that the
 agent account to the guardian. The court shall not, however,  invalidate
 or  revoke  a  will  or  a codicil of an incapacitated person during the
 lifetime of such person.
   § 12. This act shall take effect on  the  one  hundred  eightieth  day
 after  it shall have become a law, provided that, effective immediately,
 any rules and regulations necessary to implement the provisions of  this
 act on its effective date are authorized and directed to be completed on
 or before such date.

2017-S4083A (ACTIVE) - Details

See Assembly Version of this Bill:: A1350
Current Committee:: Senate Mental Health And Developmental Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Amd Ment Hyg L, generally
Versions Introduced in Other Legislative Sessions:: 2015-2016: S4642, A6510
2019-2020: S4722, A5609
2021-2022: S3523, A2536
2023-2024: S8133, A3772

2017-S4083A (ACTIVE) - Summary

2017-S4083A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4083A

 TITLE OF BILL :

An act to amend the mental hygiene law, in relation to requiring
petitioners for appointment of a guardian to identify other persons
who may be able to manage the affairs of an incapacitated person

 PURPOSE :

This legislation would prevent the use of the guardianship law for the
primary purpose of bill collection and would correct erroneous cross
references to the power of attorney law.

 SUMMARY OF PROVISIONS :

Section 1 of the bill amends subdivision (e) of Section 81.03 of the
mental hygiene law to expand the list of available resources, people
who would be served notice of a guardianship petition including family
members, people granted legal authority to manage the personal,
medical and/or financial affairs of the alleged incapacitated person
and persons or entities that have demonstrated a genuine interest in
promoting the best interests of the alleged incapacitated person
(AIP).

Section 2 of the bill amends paragraph 7 of subdivision (a) of Section

81.06 of the mental hygiene law to prevent nursing homes from filing
guardianship petitions where the petition is brought primarily for
purposes of bill collection or resolving a bill collection dispute.

Section 4 of the bill amends paragraph 14, of subdivision (a) of
section 81.08 of the mental hygiene law to require the petitioner to
provide information about the steps take to identify available
resources, along with an explanation for why such resources are not
sufficient or reliable to meet the AIP's needs without the appointment
of a guardian.

Section 5 of the bill amends subdivision (a) of section 81.08 of the
mental hygiene law by renumbering paragraph 15 and adding new
paragraphs 15, 16 and 17 that enhance the pleading requirements of a
guardianship petition relating to available resources considered. The
new paragraphs require the petitioner to provide information to the
court about the available guardianship resources considered by the
petitioner, information about any documents known to the petitioner
that grant such resources legal authority to manage the affairs of the
AIP, where relevant, specific reasons for seeking revocation of any
appointments or delegations made by the ALP, and a verification that
the petition is not brought for the purpose of bill collection or to
resolve a bill collection dispute.

Section 7 of the bill amends subdivision (e) of section 81.19 of the
mental hygiene law to preclude persons or corporations whose only
interest in the ALP is that of a creditor or those who provide day
care, health care, educational or residential services to the AIP from
serving as guardians.

Sections 3, 6, 8, 9 and 10 of the bill amend sections 81.09, 81.19,
81.22 and 81.29 to fix erroneous cross-references to the power of
attorney law that was modified in 2008.

Section 11 of the bill provides that this act shall take effect on the
one hundred eightieth day after it shall have become a law, provided
that, effective immediately, any rules and regulations necessary to
implement the provisions of this act on its effective date are
authorized and directed to be completed on or before such date.

 JUSTIFICATION :

A recent article published in the New York Times, "To Collect Debts,
Nursing Homes Are Seizing Control Over Patients", January 25, 2015
high- lighted a disturbing practice where some nursing homes are
filing guardianship petitions against vulnerable disabled nursing home
residents, over the objection of family members, primarily as a means
of bill collection. The article details how a nursing home appears to
have filed a guardianship petition against a resident of the facility
suffering from dementia, primarily for the purpose of resolving a bill
collection dispute. The petition was filed over the objections of the
resident's husband who had power of attorney and a health care proxy.
Ultimately the nursing home withdrew the petition, but the husband had
to spend a significant amount of money to challenge the petition and
to assert his legal rights.

Guardianship transfers an incapacitated person's legal rights to make
financial and personal care decisions to someone appointed by the
court. Guardianship petitions are generally filed by family members to
help them meet the personal or property management needs of an
incapacitated relative. The guardianship statue was enacted in 1993 by
the legislature to protect disabled individuals who are unable to
manage their affairs on their own because of incapacity and to help
meet their needs in a manner that affords them the greatest amount of
independence and self-determination in all decisions affecting their
lives.

However, it appears that nursing homes have been increasingly using
these petitions to collect unpaid bills or to coerce settlement of
bill disputes with residents. According to a study done by researchers
at Hunter College, over twelve percent of guardianship petitions filed
in Manhattan over the last decade were brought by nursing homes
against their residents. While some of these cases may have had
legitimate purposes, there is significant concern that many of these
cases were likely used as a means to collect bills.

One judge has ruled this misuse of the guardianship statute - Article
81 of the mental hygiene law - as an abuse of the law. See In re G.S.,
17 Misc. 3d 303, 841 N.Y.S.2d 428 (Sup.Ct.2007). Even if the petition
is ultimately unsuccessful, the mere filing causes the family to spend
significant sums of money for legal representation to defend against a
stranger being appointed a guardian of a loved one.  As a result,
families may agree to settle bill disputes with a nursing home
facility in exchange for discontinuance or withdrawal of the
guardianship petition.

We have also heard concerns from disability advocates that nursing
homes may also refuse to recognize the legal rights of relatives under
health care proxies or powers of attorney.

This proposal would help ensure that nursing home facilities do not
file guardianship petitions primarily as a means of resolving bill
disputes. The proposal would still permit hospitals or nursing homes
to commence guardianship actions to help meet the needs of an
incapacitated person e.g. to facilitate discharge planning or to
assist the person with becoming Medicaid-eligible.

The proposal will also dissuade such facilities from circumventing the
intent of the incapacitated person by making it harder for them to
deny, without legitimate basis, the legal rights of relatives, friends
or others with lawfully executed appointments or delegations made by
the alleged incapacitated person to meet his/her needs.

 LEGISLATIVE HISTORY :


2016: S.4642-A - Referred to Mental health and Developmental
Disabilities
2015: S.4642-A - 3rd Reading Calendar

 FISCAL IMPLICATIONS :

None

 EFFECTIVE DATE :
This act shall take effect on the one hundred eightieth day after it
shall have become a law, provided that, effective immediately, any
rules and regulations necessary to implement the provisions of this
act on its effective date are authorized and directed to be completed
on or before such date.

2017-S4083A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4083--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 3, 2017
                                ___________
 
 Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Mental Health and Develop-
   mental Disabilities -- committee  discharged,  bill  amended,  ordered
   reprinted as amended and recommitted to said committee
 
 AN  ACT  to amend the mental hygiene law, in relation to requiring peti-
   tioners for appointment of a guardian to identify  other  persons  who
   may be able to manage the affairs of an incapacitated person
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision (e) of section 81.03 of the mental hygiene law,
 as amended by chapter 438 of the laws of 2004, is  amended  to  read  as
 follows:
   (e) "available resources" means resources such as, but not limited to,
 ALL  PERSONS  IDENTIFIED  IN SUBPARAGRAPHS (I) THROUGH (IV) OF PARAGRAPH
 ONE OF SUBDIVISION (G) OF SECTION 81.07 OF THIS ARTICLE, visiting  nurs-
 es,  homemakers,  home  health  aides,  adult  day care and multipurpose
 senior citizen centers, powers of attorney, health care proxies, trusts,
 representative and protective payees, and residential care facilities.
   § 2. Paragraph 7 of subdivision (a) of section  81.06  of  the  mental
 hygiene  law,  as amended by chapter 438 of the laws of 2004, is amended
 to read as follows:
   7. the chief executive officer, or the designee of the chief executive
 officer, of a facility in which the person alleged to  be  incapacitated
 is  a  patient  or  resident,  EXCEPT  FOR WHERE THE PETITION IS BROUGHT
 PRIMARILY FOR PURPOSES OF BILL COLLECTION OR RESOLVING A BILL COLLECTION
 DISPUTE.  PROVIDED, HOWEVER, WHERE THERE IS NO OTHER LEGALLY  AUTHORIZED
 OR  OTHERWISE AVAILABLE RESOURCE, THE CHIEF EXECUTIVE OFFICER, OR DESIG-
 NEE OF THE CHIEF EXECUTIVE OFFICER, OF SUCH FACILITY DESCRIBED  IN  THIS
 ARTICLE MAY FILE A PETITION UNDER THIS ARTICLE WHERE A GUARDIAN IS NEED-
 ED TO APPLY FOR OR ENGAGE IN PLANNING NECESSARY TO ESTABLISH ELIGIBILITY
 FOR MEDICAL ASSISTANCE AS PROVIDED UNDER TITLE ELEVEN OF ARTICLE FIVE OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD02869-04-7

 S. 4083--A                          2
 
 THE  SOCIAL  SERVICES  LAW  FOR  THE BENEFIT OF THE PERSON ALLEGED TO BE
 INCAPACITATED.
   §  3.  Subparagraph (iii) of paragraph 1 of subdivision (g) of section
 81.07 of the mental hygiene law, as amended by chapter 438 of  the  laws
 of 2004, is amended to read as follows:
   (iii)  any  person  or persons designated by the alleged incapacitated
 person with authority pursuant to [sections 5-1501, 5-1505, and  5-1506]
 TITLE  FIFTEEN  OF  ARTICLE  FIVE  of  the  general  obligations law, or
 sections two thousand nine hundred five and two  thousand  nine  hundred
 eighty-one of the public health law, if known to the petitioner; and
   §  4.  Paragraph  14 of subdivision (a) of section 81.08 of the mental
 hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
 read as follows:
   14.  the available resources, if any, that have been considered by the
 petitioner, THE STEPS TAKEN TO IDENTIFY  AVAILABLE  RESOURCES,  and  the
 petitioner's  opinion as to [their sufficiency and reliability] WHY SUCH
 RESOURCES ARE NOT SUFFICIENT OR RELIABLE  ENOUGH  TO  MEET  THE  ALLEGED
 INCAPACITATED PERSON'S NEEDS WITHOUT THE APPOINTMENT OF A GUARDIAN;
   §  5.  Paragraph  15 of subdivision (a) of section 81.08 of the mental
 hygiene law is renumbered paragraph 18, and three new paragraphs 15,  16
 and 17 are added to read as follows:
   15.  FOR  ALL  AVAILABLE  RESOURCES  CONSIDERED BY THE PETITIONER, THE
 NAME, ADDRESS, TELEPHONE NUMBER ALONG WITH ANY  OTHER  CONTACT  INFORMA-
 TION, RELATIONSHIP TO THE ALLEGED INCAPACITATED PERSON AND ANY DOCUMENTS
 KNOWN TO THE PETITIONER THAT GRANT THE AVAILABLE RESOURCE LEGAL AUTHORI-
 TY  TO  MANAGE  THE  PERSONAL,  MEDICAL  AND/OR FINANCIAL AFFAIRS OF THE
 ALLEGED INCAPACITATED PERSON;
   16. IF THE PETITIONER SEEKS TO REVOKE ANY LAWFULLY  EXECUTED  APPOINT-
 MENT  OR DELEGATION MADE BY THE ALLEGED INCAPACITATED PERSON PURSUANT TO
 TITLE FIFTEEN OF ARTICLE FIVE OF THE GENERAL  OBLIGATIONS  LAW,  SECTION
 TWENTY-NINE  HUNDRED SIXTY-FIVE OR TWENTY-NINE HUNDRED EIGHTY-ONE OF THE
 PUBLIC HEALTH LAW, OR ANY LIVING WILL,  THE  PETITION  SHALL  SET  FORTH
 SPECIFIC REASONS FOR THE REVOCATION;
   17. AN AFFIRMATIVE STATEMENT THAT THE PETITION IS NOT BROUGHT PRIMARI-
 LY  FOR  THE  PURPOSE  OF BILL COLLECTION OR RESOLVING A BILL COLLECTION
 DISPUTE;
   § 6. Subparagraph (xi) of paragraph 5 of subdivision  (c)  of  section
 81.09  of  the mental hygiene law, as amended by chapter 438 of the laws
 of 2004, is amended to read as follows:
   (xi) has the person alleged to be incapacitated made  any  appointment
 or  delegation  pursuant  to  [section  5-1501, 5-1505, or 5-1506] TITLE
 FIFTEEN OF ARTICLE FIVE of the  general  obligations  law,  section  two
 thousand nine hundred sixty-five or two thousand nine hundred eighty-one
 of the public health law, or a living will;
   §  7.    Paragraph 1 of subdivision (d) of section 81.19 of the mental
 hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
 read as follows:
   1.  any  appointment  or  delegation  made by the person alleged to be
 incapacitated in accordance with  the  provisions  of  [section  5-1501,
 5-1601  or  5-1602]  TITLE  FIFTEEN OF ARTICLE FIVE of the general obli-
 gations law and sections two thousand nine hundred  sixty-five  and  two
 thousand nine hundred eighty-one of the public health law;
   §  8. The opening paragraph of subdivision (e) of section 81.19 of the
 mental hygiene law, as added by chapter 698 of  the  laws  of  1992,  is
 amended to read as follows:

 S. 4083--A                          3
 
   [Unless  the court finds that no other person or corporation is avail-
 able or willing to act as guardian, or to provide  needed  services  for
 the incapacitated person, the] THE following persons or corporations may
 not serve as guardian:
   §  9.  Paragraph  2  of subdivision (b) of section 81.22 of the mental
 hygiene law, as added by chapter 698 of the laws of 1992, is amended  to
 read as follows:
   2.  revoke  any  appointment  or  delegation made by the incapacitated
 person pursuant to [sections 5-1501, 5-1601 and 5-1602] TITLE FIFTEEN OF
 ARTICLE FIVE of the general obligations law, sections two thousand  nine
 hundred  sixty-five  and  two  thousand  nine  hundred eighty-one of the
 public health law, or any living will.
   § 10. Subdivision (d) of section 81.29 of the mental hygiene  law,  as
 amended  by  chapter  176  of  the  laws  of 2008, is amended to read as
 follows:
   (d) If the court determines  that  the  person  is  incapacitated  and
 appoints  a  guardian, the court may modify, amend, or revoke any previ-
 ously executed appointment, power, or delegation under [section  5-1501,
 5-1505,  or  5-1506]  TITLE FIFTEEN OF ARTICLE FIVE of the general obli-
 gations law or section two  thousand  nine  hundred  sixty-five  of  the
 public  health  law,  or section two thousand nine hundred eighty-one of
 the public health law notwithstanding section two thousand nine  hundred
 ninety-two  of  the  public  health law, or any contract, conveyance, or
 disposition during lifetime or to take effect upon death,  made  by  the
 incapacitated  person  prior  to  the appointment of the guardian if the
 court finds that the previously executed appointment, power, delegation,
 contract, conveyance, or disposition during lifetime or to  take  effect
 upon  death, was made while the person was incapacitated or if the court
 determines that there has been a breach of fiduciary duty by the  previ-
 ously  appointed  agent. In such event, the court shall require that the
 agent account to the guardian. The court shall not, however,  invalidate
 or  revoke  a  will  or  a codicil of an incapacitated person during the
 lifetime of such person.
   § 11. This act shall take effect on  the  one  hundred  eightieth  day
 after  it shall have become a law, provided that, effective immediately,
 any rules and regulations necessary to implement the provisions of  this
 act on its effective date are authorized and directed to be completed on
 or before such date.

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