NY State Senate Bill 2017-S6217A

Senate Bill S6217A

Signed By Governor

2017-2018 Legislative Session

Relates to the appointment of a standby guardian due to administrative separation

download bill text pdf

Archive: Last Bill Status Via A7899 - Signed by Governor

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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 27, 2018	signed chap.79
Jun 25, 2018	delivered to governor
Jun 20, 2018	returned to assembly passed senate 3rd reading cal.595 substituted for s6217a
Jun 20, 2018	substituted by a7899a
Mar 13, 2018	advanced to third reading
Mar 12, 2018	2nd report cal.
Mar 06, 2018	1st report cal.595
Jan 03, 2018	referred to judiciary
Jun 13, 2017	print number 6217a
Jun 13, 2017	amend and recommit to judiciary
May 11, 2017	referred to judiciary

Votes

- Jun 20, 2018 - Floor Vote
  A7899
  
  60
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  3
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 20, 2018
      
      aye (60)
      
      Akshar
      
      Alcantara
      
      Amedore
      
      Avella
      
      Bailey
      
      Benjamin
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Brooks
      
      Carlucci
      
      Comrie
      
      DeFrancisco
      
      Dilan
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Hamilton
      
      Hannon
      
      Helming
      
      Hoylman-Sigal
      
      Jacobs
      
      Kaminsky
      
      Kavanagh
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Little
      
      Marcellino
      
      Marchione
      
      Mayer
      
      Montgomery
      
      Murphy
      
      O'Mara
      
      Ortt
      
      Parker
      
      Peralta
      
      Persaud
      
      Phillips
      
      Ranzenhofer
      
      Ritchie
      
      Robach
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Seward
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Valesky
      
      Young
      
      excused (3)
      
      Addabbo Jr.
      
      Croci
      
      Rivera
  Mar 6, 2018 - Judiciary Committee Vote
  S6217A
  
  20
  
  Aye
  
  1
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: Mar 6, 2018
      
      aye (20)
      
      Amedore
      
      Avella
      
      Bailey
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Dilan
      
      Hamilton
      
      Hoylman-Sigal
      
      Jacobs
      
      Kaminsky
      
      Kavanagh
      
      Lanza
      
      Montgomery
      
      O'Mara
      
      Phillips
      
      Ranzenhofer
      
      Savino
      
      Serino
      
      Stavisky
      
      nay (1)
      
      Croci
      
      aye wr (1)
      
      Hannon
      
      excused (1)
      
      LaValle

Bill Amendments

Original

A (Active)

2017-S6217 - Details

See Assembly Version of this Bill:: A7899
Law Section:: Surrogate's Court Procedure Act
Laws Affected:: Amd §1726, SCPA

2017-S6217 - Summary

Relates to the appointment of a standby guardian due to administrative separation; defines administrative separation and the process for such appointment.

2017-S6217 - Sponsor Memo

                                 BILL NUMBER:  S6217

 TITLE OF BILL :

An act to amend the surrogate's court procedure act, in relation to
the appointment of a standby guardian due to administrative separation

 PURPOSE :

To allow parents and guardians who become subject to an administrative
separation, the ability to designate a Standby Guardian.

 SUMMARY OF PROVISIONS :

Section 1 of the bill would amend section 1726 of the Surrogate's
Court Procedure Act to expand the circumstances when a parent or
guardian may designate a Standby Guardian. Section 2 provides this act
would take effect immediately.

 JUSTIFICATION :

Currently, SCPA § 1726 allows a parent to designate a standby guardian
for their child in the event of their (i) incapacity, (ii)
debilitation and consent, or (iii) death. This proposed amendment
seeks to broaden Section 1726 by allowing for a standby guardian's
authority to take effect in the event of an "administrative

separation," between a parent and their child.  Separation is defined
as a suspension of care between parent and child caused by
family-shattering events including in the event of arrest, detention,
incarceration, removal and/or deportation, in connection with a
federal immigration matter. The legislation also provides the court
with the discretion to appoint an attorney for the child to recommend
whether the appointment of a standby guardian is in the best interest
of the child.

Providing parents and guardians with legal tools to plan for the
smooth transition of care for their children in the event of a major
life disruption is a crucially important step in ensuring stability in
the children's lives. SCPA § 1726 was originally enacted by the
Legislature at the height of the AIDS crisis. The statute was
developed to facilitate, among other things, the immediate transfer of
temporary guardianship powers until a more permanent arrangement and
hearing can take place.

Providing parents with the ability to make a standby designation that
only takes effect upon a triggering event, allows parents to plan, but
not relinquish parental rights, and is in the best interests of
children. By any measure, SCPA § 1726 has been an extraordinary
success in New York and more than half the states have adopted similar
statutes. Over the many years since it became law, it has provided
relief for countless parents and helped the designated standby
guardians to better negotiate complex transitions for the children in
their care.

 LEGISLATIVE HISTORY :

This is a new bill.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
Immediately.

2017-S6217 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6217
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               May 11, 2017
                                ___________
 
 Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 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:
 
   Section 1. Section 1726 of the surrogate's  court  procedure  act,  as
 amended by chapter 632 of the laws of 2003, paragraph (c) of subdivision
 3  and  paragraph  (e)  of subdivision 4 as amended by chapter 71 of the
 laws of 2007, is amended to read as follows:
 § 1726. Standby guardians
   1. For the purpose of this section:
   (a) "Standby guardian" means (i) a person judicially appointed  pursu-
 ant  to  subdivision  three  of  this section as standby guardian of the
 person and/or property of an infant whose  authority  becomes  effective
 upon  the  incapacity  [or],  ADMINISTRATIVE SEPARATION, OR death of the
 infant's parent, legal guardian, legal custodian or primary caretaker or
 upon the consent of the  parent,  legal  guardian,  legal  custodian  or
 primary  caretaker; and (ii) a person designated pursuant to subdivision
 four of this section as standby guardian whose authority becomes  effec-
 tive  upon  the  death [or], ADMINISTRATIVE SEPARATION, OR incapacity of
 the infant's parent, legal guardian, legal custodian or primary caretak-
 er or upon the debilitation and consent of the parent,  legal  guardian,
 legal custodian or primary caretaker.
   (b)  "Legal  guardian"  means  the  court-appointed  guardian  of  the
 infant's person and/or property.
   (c) "Attending physician" means the physician who has primary  respon-
 sibility for the treatment and care of the infant's parent, legal guard-
 ian, legal custodian or primary caretaker. Where more than one physician
 shares  such  responsibility,  or  where  a  physician  is acting on the
 attending physician's behalf, any such physician may act as the  attend-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11694-01-7

 S. 6217                             2
 
 ing  physician  pursuant  to  this  section. Where no physician has such
 responsibility, any physician who is familiar with the  parent's,  legal
 guardian's,  legal  custodian's or primary caretaker's medical condition
 may act as the attending physician pursuant to this section.
   (d)  "Debilitation"  means a chronic and substantial inability to care
 for one's dependent infant, as a result of (i) a  progressively  chronic
 or  irreversibly  fatal  illness,  or  (ii)  a  physically  debilitating
 illness, disease or injury. "Debilitated" means the state  of  having  a
 debilitation.
   (e)  "Incapacity"  means  a  chronic  and  substantial inability, as a
 result of mental impairment, to understand the nature  and  consequences
 of decisions concerning the care of one's dependent infant, and a conse-
 quent inability to care for such infant. "Incapacitated" means the state
 of having an incapacity.
   (F)  "ADMINISTRATIVE SEPARATION" MEANS A PARENT, LEGAL GUARDIAN, LEGAL
 CUSTODIAN OR PRIMARY CARETAKER'S (I) ARREST,  DETENTION,  INCARCERATION,
 REMOVAL  AND/OR  DEPORTATION,  IN  CONNECTION WITH A FEDERAL IMMIGRATION
 MATTER; OR (II) RECEIPT OF OFFICIAL COMMUNICATION BY FEDERAL, STATE,  OR
 LOCAL  AUTHORITIES REGARDING IMMIGRATION ENFORCEMENT WHICH GIVES REASON-
 ABLE NOTICE OF A SUSPENSION  OF  RESPONSIBILITIES  SUCH  THAT  CARE  AND
 SUPERVISION OF THE CHILD BY THE PARENT, LEGAL GUARDIAN, LEGAL CUSTODIAN,
 OR PRIMARY CARETAKER WILL BE INTERRUPTED OR CANNOT BE PROVIDED.
   2. The provisions of this article relating to guardians shall apply to
 standby guardians, except insofar as this section provides otherwise.
   3.  (a)  A petition for the judicial appointment of a standby guardian
 of the person and/or property of an infant pursuant to this  subdivision
 may  be made only by a parent, a legal guardian of the infant or a legal
 custodian of the infant; or where the infant  is  not  residing  with  a
 parent,  legal  guardian  or legal custodian and, to the satisfaction of
 the court, such parent, legal guardian  or  legal  custodian  cannot  be
 located  with  due  diligence,  the primary caretaker of such infant may
 petition for a judicial appointment of such standby guardian.   Applica-
 tion  for  standing  to  petition  as  a primary caretaker shall be upon
 motion to the court upon notice to such parties as the court may direct.
   (b) A petition for the judicial appointment of a standby  guardian  of
 an  infant  shall,  in  addition  to meeting the requirements of section
 seventeen hundred four of this article:
   (i) State whether the authority of the standby guardian is  to  become
 effective upon the petitioner's incapacity, upon the petitioner's death,
 OR  UPON  THE  PETITIONER'S ADMINISTRATIVE SEPARATION AND, IF CONSENT IS
 REQUIRED PURSUANT  TO  THE  PROVISIONS  OF  SUBDIVISION  SEVEN  OF  THIS
 SECTION,  THE  PETITIONER'S  CONSENT  TO THE COMMENCEMENT OF THE STANDBY
 GUARDIAN'S AUTHORITY, upon the petitioner's consent, or  upon  whichever
 occurs first;
   (ii) State that the petitioner suffers from (A) a progressively chron-
 ic  illness  [or];  (B)  an irreversibly fatal illness and the basis for
 such statement, such as the date and  source  of  a  medical  diagnosis,
 without  requiring the identification of the illness in question, OR (C)
 STATE THAT THE PETITIONER MAY BECOME  SUBJECT  TO  ADMINISTRATIVE  SEPA-
 RATION AND THE BASIS FOR SUCH STATEMENT.
   (c) Upon a petition for the judicial appointment of a standby guardian
 of  an  infant  pursuant to paragraph (a) of this subdivision or for the
 judicial appointment of a guardian pursuant to paragraph (d) of subdivi-
 sion four of this section, the court shall conduct a hearing. The  court
 may  in  its discretion dispense with a hearing for the appointment of a
 standby guardian, and may in its discretion appoint a guardian ad  litem

 S. 6217                             3
 
 OR  AN ATTORNEY FOR THE INFANT to recommend whether the appointment of a
 standby guardian as proposed in the application is in the best  interest
 of the infant.
   (d) (i) If the court finds that the petitioner suffers from a progres-
 sively  chronic  illness or an irreversibly fatal illness, OR FINDS THAT
 THE PETITIONER MAY BECOME SUBJECT TO ADMINISTRATIVE SEPARATION, and that
 the interests of the infant will be promoted by  the  appointment  of  a
 standby  guardian  of  the  person and/or property it must make a decree
 accordingly.
   (ii) Such decree shall specify whether the authority  of  the  standby
 guardian  is  effective  upon  the  receipt  of  a  determination of the
 petitioner's incapacity, upon the receipt  of  the  certificate  of  the
 petitioner's  death,  or other such evidence of death that may be satis-
 factory to the court, OR  UPON  THE  RECEIPT  OF  DOCUMENTATION  OF  THE
 PETITIONER'S  ADMINISTRATIVE  SEPARATION,  AND  IF  CONSENT  IS REQUIRED
 PURSUANT TO THE PROVISIONS OF SUBDIVISION SEVEN OF THIS SECTION, RECEIPT
 OF THE PETITIONER'S CONSENT TO THE COMMENCEMENT OF THE  STANDBY  GUARDI-
 AN'S  AUTHORITY, or upon whichever occurs first[, and]. THE DECREE shall
 also provide that the authority of  the  standby  guardian  may  earlier
 become effective upon written consent of the parent pursuant to subpara-
 graph [(iii)] (IV) of paragraph (e) of this subdivision.
   (iii) If at any time prior to the commencement of the authority of the
 standby  guardian  the court finds that the requirements of subparagraph
 (i) of this paragraph are no  longer  satisfied,  it  may  rescind  such
 decree.
   (e)  (i)  Where  the decree provides that the authority of the standby
 guardian  is  effective  upon  receipt  of  a   determination   of   the
 petitioner's incapacity, the standby guardian's authority shall commence
 upon  the  standby  guardian's  receipt  of a copy of a determination of
 incapacity made pursuant to subdivision six of this section. The standby
 guardian shall file a copy of the determination of incapacity  with  the
 court  that  issued the decree within ninety days of the date of receipt
 of such  determination  or  the  standby  guardian's  authority  may  be
 rescinded by the court.
   (ii) Where the decree provides that the authority of the standby guar-
 dian  is  effective  upon  receipt  of a certificate of the petitioner's
 death, or other such evidence of death that may be satisfactory  to  the
 court,  the standby guardian's authority shall commence upon the standby
 guardian's receipt of a certificate of death, or other such evidence  of
 death as may be specified in the decree. The standby guardian shall file
 the  certificate  of  death,  or  other such evidence of death, with the
 court that issued the decree within ninety  days  of  the  date  of  the
 petitioner's  death or the standby guardian's authority may be rescinded
 by the court.
   (III) WHERE THE DECREE PROVIDES THAT  THE  AUTHORITY  OF  THE  STANDBY
 GUARDIAN  IS EFFECTIVE UPON THE STANDBY GUARDIAN'S RECEIPT OF DOCUMENTA-
 TION OF THE PETITIONER'S ADMINISTRATIVE SEPARATION, THE STANDBY  GUARDI-
 AN'S  AUTHORITY  SHALL  COMMENCE  UPON THE STANDBY GUARDIAN'S RECEIPT OF
 DOCUMENTATION OF THE PETITIONER'S ADMINISTRATIVE SEPARATION PURSUANT  TO
 SUBDIVISION  SEVEN  OF THIS SECTION, AND IF CONSENT IS REQUIRED PURSUANT
 TO THE PROVISIONS OF SUBDIVISION SEVEN OF THIS SECTION, RECEIPT  OF  THE
 PETITIONER'S  CONSENT  TO  THE  COMMENCEMENT  OF  THE STANDBY GUARDIAN'S
 AUTHORITY. THE STANDBY GUARDIAN SHALL FILE THE DOCUMENTATION OF ADMINIS-
 TRATIVE SEPARATION WITH THE COURT THAT ISSUED THE DECREE  WITHIN  NINETY
 DAYS  OF  THE DATE OF THE STANDBY GUARDIAN'S RECEIPT OF DOCUMENTATION OF

 S. 6217                             4

 THE PETITIONER'S ADMINISTRATIVE SEPARATION  OR  THE  STANDBY  GUARDIAN'S
 AUTHORITY MAY BE RESCINDED BY THE COURT.
   [(iii)]  (IV) Notwithstanding subparagraphs (i) and (ii) of this para-
 graph, a standby guardian's authority shall commence  upon  the  standby
 guardian's receipt of the petitioner's written consent to such commence-
 ment, signed by the petitioner in the presence of two witnesses at least
 eighteen  years  of age, other than the standby guardian, who shall also
 sign the writing. Another person may sign the  written  consent  on  the
 petitioner's  behalf and at the petitioner's direction if the petitioner
 is physically unable to do so, provided such consent is  signed  in  the
 presence of the petitioner and the witnesses. The standby guardian shall
 file  the  written  consent with the court that issued the decree within
 ninety days of the date of receipt of such written consent or the stand-
 by guardian's authority may be rescinded by the court.
   (f) The petitioner may revoke a  standby  guardianship  created  under
 this  subdivision  by executing a written revocation, filing it with the
 court that issued the decree, and promptly notifying the standby guardi-
 an of the revocation.
   (g) A person judicially appointed standby guardian  pursuant  to  this
 subdivision  may  at  any  time  before  the  commencement of his or her
 authority renounce the appointment by executing a  written  renunciation
 and  filing it with the court that issued the decree, and promptly noti-
 fying the petitioner of the revocation.
   4. (a) A parent, a legal guardian, a legal custodian, or primary care-
 taker under the circumstances described in paragraph (a) of  subdivision
 three  of  this section OR UNDER CIRCUMSTANCES DESCRIBED IN SUBPARAGRAPH
 (I) OF PARAGRAPH (B) OF THIS SUBDIVISION may designate a standby guardi-
 an by means of a written designation, signed by the parent, legal guard-
 ian, legal custodian  or  primary  caretaker  in  the  presence  of  two
 witnesses at least eighteen years of age, other than the standby guardi-
 an, who shall also sign the writing. Another person may sign the written
 designation  on  the  parent's,  legal  guardian's, legal custodian's or
 primary caretaker's behalf and at the parent's, legal guardian's,  legal
 custodian's or primary caretaker's direction if the parent, legal guard-
 ian, legal custodian or primary caretaker is physically unable to do so,
 provided  the designation is signed in the presence of the parent, legal
 guardian, legal custodian or primary caretaker and the witnesses.
   (b) (i) A designation of a standby guardian shall identify the parent,
 legal guardian, legal custodian or primary caretaker, the infant and the
 person designated to be the standby guardian, and  shall  indicate  that
 the parent, legal guardian, legal custodian or primary caretaker intends
 for  the  standby  guardian to become the infant's guardian in the event
 the parent, legal guardian, legal custodian or primary caretaker either:
 (A) becomes incapacitated; (B) becomes debilitated and consents  to  the
 commencement  of  the  standby  guardian's  authority;  [or] (C) BECOMES
 SUBJECT TO AN ADMINISTRATIVE SEPARATION  AND,  IF  CONSENT  IS  REQUIRED
 PURSUANT  TO  THE  PROVISIONS  OF  SUBDIVISION  SEVEN  OF  THIS SECTION,
 CONSENTS TO THE COMMENCEMENT OF THE STANDBY GUARDIAN'S AUTHORITY; OR (D)
 dies prior to the commencement of a judicial  proceeding  to  appoint  a
 guardian of the person and/or property of an infant.
   (ii)  A  parent,  legal guardian, legal custodian or primary caretaker
 may designate an alternate standby guardian in the same writing, and  by
 the same manner, as the designation of a standby guardian.
   (iii) A designation may, but need not, be in the following form:
                      Designation of Standby Guardian

 S. 6217                             5
 
     (NOTE:  As  used  in  this form, the term "parent" shall include a
   parent, a court-appointed guardian of an infant's person or  proper-
   ty,  a  legal  custodian,  or  a  primary  caretaker,  and  the term
   "child(ren)" shall include the dependant infant of a parent,  court-
   appointed guardian, legal custodian or primary caretaker
         I (name of parent) hereby designate (name, home address and
      telephone  number  of standby guardian) as standby guardian of
      the person and property of my child(ren) (name of child(ren)).
         (You may, if you wish, provide that the standby  guardian's
      authority  shall  extend  only  to  the person, or only to the
      property, of your child, by crossing out "person" or  "proper-
      ty", whichever is inapplicable, above.)
         THE  APPOINTMENT  OF ___________ AS THE STANDBY GUARDIAN OF
      THE PERSON AND PROPERTY OF MY CHILD(REN) WOULD BE IN THE  BEST
      INTERESTS OF MY CHILD(REN) BECAUSE:  (INSERT JUSTIFICATION FOR
      APPOINTMENT OF THIS PERSON AS THE STANDBY GUARDIAN) __________
      ______________________________________________________________
      ____________________________________________________________ .
         The  standby guardian's authority shall take effect: (1) if
      my doctor concludes in writing that I  am  mentally  incapaci-
      tated,  and  thus  unable to care for my child(ren); (2) if my
      doctor concludes in writing that I am physically  debilitated,
      and  thus  unable  to  care for my child(ren) and I consent in
      writing, before  two  witnesses,  to  the  standby  guardian's
      authority  taking effect; (3) IF I BECOME SUBJECT TO AN ADMIN-
      ISTRATIVE SEPARATION SUCH THAT CARE  AND  SUPERVISION  OF  THE
      CHILD  WILL  BE  INTERRUPTED OR CANNOT BE PROVIDED; or [(iii)]
      (4) upon my death.
         In the event the person I  designate  above  is  unable  or
      unwilling  to  act  as  guardian  for  my child(ren), I hereby
      designate (name, home address and telephone number  of  alter-
      nate standby guardian), as standby guardian of my child(ren).
         I also understand that my standby guardian's authority will
      cease [sixty] NINETY days after commencing unless by such date
      he or she petitions the court for appointment as guardian.
         I  understand  that  I  retain full parental, guardianship,
      custodial or caretaker rights even after the  commencement  of
      the  standby  guardian's authority, and may revoke the standby
      guardianship at any time.
         Signature: ________________________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
         I declare that the person whose name appears  above  signed
      this document in my presence, or was physically unable to sign
      and  asked  another  to  sign  this document, who did so in my
      presence. I further declare that I am at least eighteen  years
      old and am not the person designated as standby guardian.
         Witness' Signature: _______________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
         Witness' Signature: _______________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
   (iv)  Notwithstanding  paragraphs  (a)  and (b) of this subdivision, a
 designation of standby guardian shall be effective as if made in accord-
 ance with the requirements of this subdivision if it was  validly  made:

 S. 6217                             6
 
 (a)  where  the parent, legal guardian, legal custodian or primary care-
 taker was domiciled at the time it was executed; (b) in the jurisdiction
 where it was executed or (c) where the  parent,  legal  guardian,  legal
 custodian  or primary caretaker is domiciled at the time the designation
 becomes effective.
   (c) The authority of the standby guardian under  a  designation  shall
 commence  upon either: (i) the standby guardian's receipt of a copy of a
 determination of incapacity made pursuant to  subdivision  six  of  this
 section; (ii) the standby guardian's receipt of (A) a copy of a determi-
 nation  of debilitation made pursuant to subdivision six of this section
 and (B) a copy of the parent's, legal guardian's, legal  custodian's  or
 primary  caretaker's written consent to such commencement, signed by the
 parent, legal guardian, legal custodian  or  primary  caretaker  in  the
 presence of two witnesses at least eighteen years of age, other than the
 standby  guardian,  who shall also sign the writing.  Another person may
 sign the written consent on the parent's, legal guardian's, legal custo-
 dian's or primary caretaker's behalf and at the parent's, legal  guardi-
 an's,  legal custodian's or primary caretaker's direction if the parent,
 legal guardian, legal  custodian  or  primary  caretaker  is  physically
 unable  to do so, provided such consent is signed in the presence of the
 parent, legal guardian, legal custodian or  primary  caretaker  and  the
 witnesses; (III) AN ADMINISTRATIVE SEPARATION or [(iii)] (IV) the stand-
 by guardian's receipt of a certificate of death, funeral home receipt or
 other  such  document  indicating that the parent, legal guardian, legal
 custodian or primary caretaker has died. The standby guardian shall file
 a petition pursuant to paragraph (d) of this subdivision within  [sixty]
 NINETY  days  of the date of its commencement pursuant to this paragraph
 or such standby guardian's authority shall cease after  such  date,  but
 shall recommence upon such filing.
   (d) The standby guardian may file a petition for appointment as guard-
 ian after receipt of either: (i) a copy of a determination of incapacity
 made  pursuant to subdivision six of this section; or (ii) (A) a copy of
 a determination of debilitation made pursuant to subdivision six of this
 section and (B) a copy of the parent's, legal guardian's,  legal  custo-
 dian's or primary caretaker's written consent, pursuant to paragraph (c)
 of this subdivision; [or] (iii) DOCUMENTATION OF AN ADMINISTRATIVE SEPA-
 RATION;  OR (IV) a certificate of death, or other such evidence of death
 that may be satisfactory to the court. Such petition must,  in  addition
 to  meeting  the  requirements of section seventeen hundred four of this
 article:
   (i) append the written designation of such person as standby guardian;
 and
   (ii) append a copy of: (A) the  determination  of  incapacity  of  the
 parent, legal guardian, legal custodian or primary caretaker; or (B) the
 determination  of debilitation and the parental, guardian's, custodian's
 or caretaker's consent; [or]  (C)  DOCUMENTATION  OF  AN  ADMINISTRATIVE
 SEPARATION;  OR  (D)  a  copy  of  the parent's, legal guardian's, legal
 custodian's or primary caretaker's  death  certificate,  or  other  such
 evidence of death that may be satisfactory to the court; and
   (iii)  if  the petition is by a person designated as alternate standby
 guardian, state that  the  person  designated  as  standby  guardian  is
 unwilling  or  unable to act as standby guardian, and the basis for such
 statement.
   (e) Subject to the provisions of paragraph (c) of subdivision three of
 this section, if the court finds that the petitioner was duly designated
 as standby guardian, that the parent, legal guardian, legal custodian or

 S. 6217                             7

 primary caretaker of the infant is (I) incapacitated,  (II)  debilitated
 and  consents, (III) HAS BECOME SUBJECT TO AN ADMINISTRATIVE SEPARATION,
 or (IV) has died, as established by a copy of  a  death  certificate  or
 other  such  evidence of death as may be satisfactory to the court, that
 the interests of the infant will be promoted by  the  appointment  of  a
 standby  guardian  of the person and/or property, and that, if the peti-
 tion is by a person designated as alternate standby guardian, the person
 designated as standby guardian is unwilling or unable to act as  standby
 guardian,  it must make a decree accordingly.  PRIOR TO MAKING ITS FIND-
 ING, THE COURT MAY, IN ITS  DISCRETION,  APPOINT  AN  ATTORNEY  FOR  THE
 INFANT  TO  RECOMMEND WHETHER THE APPOINTMENT OF THE STANDBY GUARDIAN AS
 PROPOSED IN THE PETITION IS IN THE BEST INTERESTS OF THE INFANT.
   (f) The parent, legal guardian, legal custodian or  primary  caretaker
 may revoke a standby guardianship created under this subdivision: (i) by
 executing  a  subsequent  designation  of guardianship pursuant to para-
 graphs (a) and (b) of this  subdivision,  or  (ii)  notwithstanding  the
 provisions of sections seventeen hundred ten and seventeen hundred elev-
 en  of  this  article, in the case of a standby guardian whose authority
 becomes effective upon the death of the parent,  legal  guardian,  legal
 custodian  or  primary  caretaker  of the infant, by a subsequent desig-
 nation of standby guardian set forth in a  will  of  the  parent,  legal
 guardian,  legal  custodian  or primary caretaker, or (iii) by notifying
 the standby guardian verbally or in writing or by any other act evidenc-
 ing a specific intent to revoke the standby guardianship  prior  to  the
 filing  of  a  petition.  Where  the petition has already been filed, by
 executing a written revocation, filing it with the court where the peti-
 tion was filed, and promptly notifying the standby guardian of the revo-
 cation.
   5. The standby guardian may also file a petition  for  appointment  as
 guardian in any other manner permitted by this article or article six of
 the  family  court  act,  on notice to the parent, legal guardian, legal
 custodian or primary caretaker and may append a designation  of  standby
 guardian  to the petition for consideration by the court in the determi-
 nation of such petition.
   6. (a) A determination of incapacity or debilitation must: (i) be made
 by the attending physician to a reasonable degree of medical  certainty;
 (ii)  be in writing; and (iii) contain the attending physician's opinion
 regarding the cause and nature of the parent's, legal guardian's,  legal
 custodian's or primary caretaker's incapacity or debilitation as well as
 its  extent and probable duration. The attending physician shall provide
 a copy of the determination of incapacity or debilitation to the standby
 guardian, if the standby guardian's identity is known to the physician.
   (b) If requested by the standby guardian, an attending physician shall
 make a determination regarding the  parent's,  legal  guardian's,  legal
 custodian's  or  primary  caretaker's  incapacity  or  debilitation  for
 purposes of this section.
   (c) The standby guardian shall ensure that the parent, legal guardian,
 legal custodian or primary caretaker is informed of the commencement  of
 the standby guardian's authority as a result of a determination of inca-
 pacity  and  of  the  parent's,  legal  guardian's, legal custodian's or
 primary caretaker's  right  to  revoke  such  authority  promptly  after
 receipt  of the determination of incapacity, provided there is any indi-
 cation of the person's ability to comprehend such information.
   7. DOCUMENTATION OF AN  ADMINISTRATIVE  SEPARATION  SHALL  CONSIST  OF
 EITHER  (A)  AN ADMINISTRATIVE OR JUDICIAL ORDER; OR (B) AN AFFIDAVIT OR
 AFFIRMATION INDICATING THAT THE PARENT, LEGAL GUARDIAN, LEGAL  CUSTODIAN

 S. 6217                             8
 
 OR  PRIMARY  CARETAKER  HAS  BEEN  (I) ARRESTED, DETAINED, INCARCERATED,
 DEPORTED AND/OR REMOVED, IN CONNECTION TO A FEDERAL  IMMIGRATION  MATTER
 OR  (II)  HAS  RECEIVED  AN OFFICIAL COMMUNICATION BY FEDERAL, STATE, OR
 LOCAL  AUTHORITIES REGARDING IMMIGRATION ENFORCEMENT WHICH GIVES REASON-
 ABLE NOTICE OF A SUSPENSION  OF  RESPONSIBILITIES  SUCH  THAT  CARE  AND
 SUPERVISION OF THE CHILD BY THE PARENT, LEGAL GUARDIAN, LEGAL CUSTODIAN,
 OR  PRIMARY  CARETAKER  WILL BE INTERRUPTED OR CANNOT BE PROVIDED AND IS
 ACCOMPANIED BY WRITTEN CONSENT OF  THE  PARENT,  LEGAL  GUARDIAN,  LEGAL
 CUSTODIAN,  OR  PRIMARY CARETAKER, SIGNED BY THE PARENT, LEGAL GUARDIAN,
 LEGAL CUSTODIAN, OR PRIMARY CARETAKER IN THE PRESENCE OF  TWO  WITNESSES
 AT  LEAST  EIGHTEEN  YEARS  OF AGE, OTHER THAN THE STANDBY GUARDIAN, WHO
 SHALL ALSO SIGN THE WRITING.
   [7.] 8. The commencement of the standby guardian's authority  pursuant
 to  a determination of incapacity, determination of debilitation, ADMIN-
 ISTRATIVE SEPARATION, or consent shall not, itself, divest  the  parent,
 legal  guardian,  legal  custodian or primary caretaker of any parental,
 guardianship, custodial or caretaker rights, but shall confer  upon  the
 standby guardian concurrent authority with respect to the infant.
   [8.]  9.  (a) The clerk of any county upon being paid the fees allowed
 therefor by law shall receive for filing any  instrument  appointing  or
 designating  a standby guardian pursuant to this section made by a domi-
 ciliary of the county, and shall give a written receipt therefor to  the
 person  delivering  it.  The  filing of an appointment or designation of
 standby guardian shall be for the sole purpose of safekeeping and  shall
 not affect the validity of the appointment or designation.
   (b) The appointment or designation shall be delivered only to: (i) the
 parent,  legal  guardian,  legal  custodian  or  primary  caretaker  who
 appointed or designated the standby guardian; (ii) the standby  guardian
 or  alternate  standby  guardian; (iii) the person designated as standby
 guardian or  alternate  standby  guardian;  or  (iv)  any  other  person
 directed by the court.
   § 2. This act shall take effect immediately.

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2017-S6217A (ACTIVE) - Details

See Assembly Version of this Bill:: A7899
Law Section:: Surrogate's Court Procedure Act
Laws Affected:: Amd §1726, SCPA

2017-S6217A (ACTIVE) - Summary

Relates to the appointment of a standby guardian due to administrative separation; defines administrative separation and the process for such appointment.

2017-S6217A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6217A

 TITLE OF BILL :  An act to amend the surrogate's court procedure act,
in relation to the appointment of a standby guardian due to
administrative separation

 PURPOSE OF BILL :

To allow parents and guardians who become subject to an administrative
separation the ability to designate a Standby Guardian.

 SUMMARY OF PROVISIONS :

Section 1 of the bill would amend section 1726 of the Surrogate's
Court Procedure Act to expand the circumstances when a parent or
guardian may designate a Standby Guardian.

Section 2 sets forth the effective date.

 JUSTIFICATION :

Currently, SCPA § 1726 allows a parent to designate a standby guardian
for their child in the event of their (i) incapacity, (ii)
debilitation and consent, or (iii) death. This proposed amendment
seeks to broaden Section 1726 by allowing for a standby guardian's
authority to take effect in the event of an "administrative

separation," between a parent and their child. Separation is defined
as a suspension of care between parent and child caused by
family-shattering events including in the event of arrest, detention,
incarceration, removal and/or deportation, in connection with a
federal immigration matter. The legislation also provides the court
with the discretion to appoint an attorney for the child to recommend
whether the appointment of a standby guardian is in the best interest
of the child.

Providing parents and guardians with legal tools to plan for the
smooth transition of care for their children in the event of a major
life disruption is a crucially important step in ensuring stability in
the children's lives. SCPA § 1726 was originally enacted by the
Legislature at the height of the AIDS crisis. The statute was
developed to facilitate, among other things, the immediate transfer of
temporary guardianship powers until a more permanent arrangement and
hearing can take place.

Providing parents with the ability to make a standby designation that
only takes effect upon a triggering event, allows parents to plan, but
not relinquish parental rights, and is in the best interests of
children. By any measure, SCPA § 1726 has been an extraordinary
success in New York and more than half the states have adopted similar
statutes.

Over the many years since it became law, it has provided relief for
countless parents and helped the designated standby guardians to
better negotiate complex transitions for the children in their care.

 LEGISLATIVE HISTORY :

This is a new bill.

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :

None.

 EFFECTIVE DATE :
Immediately.

2017-S6217A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6217--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               May 11, 2017
                                ___________
 
 Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
   printed to be committed 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:
 
   Section  1.  Section  1726  of the surrogate's court procedure act, as
 amended by chapter 632 of the laws of 2003, paragraph (c) of subdivision
 3 and paragraph (e) of subdivision 4 as amended by  chapter  71  of  the
 laws of 2007, is amended to read as follows:
 § 1726. Standby guardians
   1. For the purpose of this section:
   (a)  "Standby guardian" means (i) a person judicially appointed pursu-
 ant to subdivision three of this section  as  standby  guardian  of  the
 person  and/or  property  of an infant whose authority becomes effective
 upon the incapacity [or], ADMINISTRATIVE SEPARATION,  OR  death  of  the
 infant's parent, legal guardian, legal custodian or primary caretaker or
 upon  the  consent  of  the  parent,  legal guardian, legal custodian or
 primary caretaker; and (ii) a person designated pursuant to  subdivision
 four  of this section as standby guardian whose authority becomes effec-
 tive upon the death [or], ADMINISTRATIVE SEPARATION,  OR  incapacity  of
 the infant's parent, legal guardian, legal custodian or primary caretak-
 er  or  upon the debilitation and consent of the parent, legal guardian,
 legal custodian or primary caretaker.
   (b)  "Legal  guardian"  means  the  court-appointed  guardian  of  the
 infant's person and/or property.
   (c)  "Attending physician" means the physician who has primary respon-
 sibility for the treatment and care of the infant's parent, legal guard-
 ian, legal custodian or primary caretaker. Where more than one physician
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11694-07-7

 S. 6217--A                          2
 
 shares such responsibility, or  where  a  physician  is  acting  on  the
 attending  physician's behalf, any such physician may act as the attend-
 ing physician pursuant to this section.  Where  no  physician  has  such
 responsibility,  any  physician who is familiar with the parent's, legal
 guardian's, legal custodian's or primary caretaker's  medical  condition
 may act as the attending physician pursuant to this section.
   (d)  "Debilitation"  means a chronic and substantial inability to care
 for one's dependent infant, as a result of (i) a  progressively  chronic
 or  irreversibly  fatal  illness,  or  (ii)  a  physically  debilitating
 illness, disease or injury. "Debilitated" means the state  of  having  a
 debilitation.
   (e)  "Incapacity"  means  a  chronic  and  substantial inability, as a
 result of mental impairment, to understand the nature  and  consequences
 of decisions concerning the care of one's dependent infant, and a conse-
 quent inability to care for such infant. "Incapacitated" means the state
 of having an incapacity.
   (F)  "ADMINISTRATIVE SEPARATION" MEANS A PARENT, LEGAL GUARDIAN, LEGAL
 CUSTODIAN OR PRIMARY CARETAKER'S (I) IN CONNECTION WITH A FEDERAL  IMMI-
 GRATION MATTER:  ARREST, DETENTION, INCARCERATION, REMOVAL AND/OR DEPOR-
 TATION;  OR (II) RECEIPT OF OFFICIAL COMMUNICATION BY FEDERAL, STATE, OR
 LOCAL AUTHORITIES REGARDING IMMIGRATION ENFORCEMENT WHICH GIVES  REASON-
 ABLE  NOTICE THAT CARE AND SUPERVISION OF THE CHILD BY THE PARENT, LEGAL
 GUARDIAN, LEGAL CUSTODIAN, OR PRIMARY CARETAKER WILL BE  INTERRUPTED  OR
 CANNOT BE PROVIDED.
   2. The provisions of this article relating to guardians shall apply to
 standby guardians, except insofar as this section provides otherwise.
   3.  (a)  A petition for the judicial appointment of a standby guardian
 of the person and/or property of an infant pursuant to this  subdivision
 may  be made only by a parent, a legal guardian of the infant or a legal
 custodian of the infant; or where the infant  is  not  residing  with  a
 parent,  legal  guardian  or legal custodian and, to the satisfaction of
 the court, such parent, legal guardian  or  legal  custodian  cannot  be
 located  with  due  diligence,  the primary caretaker of such infant may
 petition for a judicial appointment of such standby guardian.   Applica-
 tion  for  standing  to  petition  as  a primary caretaker shall be upon
 motion to the court upon notice to such parties as the court may direct.
   (b) A petition for the judicial appointment of a standby  guardian  of
 an  infant  shall,  in  addition  to meeting the requirements of section
 seventeen hundred four of this article:
   (i) State whether the authority of the standby guardian is  to  become
 effective upon the petitioner's incapacity, upon the petitioner's death,
 upon  the  petitioner's consent, OR UPON THE PETITIONER'S ADMINISTRATIVE
 SEPARATION ACCOMPANIED BY HIS OR HER CONSENT REQUIRED  PURSUANT  TO  THE
 PROVISIONS  OF  SUBDIVISION  SEVEN  OF  THIS  SECTION, or upon whichever
 occurs first;
   (ii) State that the petitioner suffers from (A) a progressively chron-
 ic illness [or]; (B) an irreversibly fatal illness  and  the  basis  for
 such  statement,  such  as  the  date and source of a medical diagnosis,
 without requiring the identification of the illness in question, OR  (C)
 STATE  THAT  THE  PETITIONER  MAY BECOME SUBJECT TO ADMINISTRATIVE SEPA-
 RATION AND THE BASIS FOR SUCH STATEMENT.
   (c) Upon a petition for the judicial appointment of a standby guardian
 of an infant pursuant to paragraph (a) of this subdivision  or  for  the
 judicial appointment of a guardian pursuant to paragraph (d) of subdivi-
 sion  four of this section, the court shall conduct a hearing. The court
 may in its discretion dispense with a hearing for the appointment  of  a

 S. 6217--A                          3
 
 standby  guardian, and may in its discretion appoint a guardian ad litem
 OR AN ATTORNEY FOR THE INFANT to recommend whether the appointment of  a
 standby  guardian as proposed in the application is in the best interest
 of the infant.
   (d) (i) If the court finds that the petitioner suffers from a progres-
 sively  chronic  illness or an irreversibly fatal illness, OR FINDS THAT
 THE PETITIONER MAY BECOME SUBJECT TO ADMINISTRATIVE SEPARATION, and that
 the interests of the infant will be promoted by  the  appointment  of  a
 standby  guardian  of  the  person and/or property it must make a decree
 accordingly.
   (ii) Such decree shall specify whether the authority  of  the  standby
 guardian  is  effective  upon  the  receipt  of  a  determination of the
 petitioner's incapacity, upon the receipt  of  the  certificate  of  the
 petitioner's  death,  or other such evidence of death that may be satis-
 factory to the court, OR  UPON  THE  RECEIPT  OF  DOCUMENTATION  OF  THE
 PETITIONER'S  ADMINISTRATIVE SEPARATION, AND RECEIPT OF THE PETITIONER'S
 CONSENT TO THE COMMENCEMENT OF THE STANDBY GUARDIAN'S AUTHORITY REQUIRED
 PURSUANT TO THE PROVISIONS OF SUBDIVISION SEVEN OF THIS SECTION, or upon
 whichever occurs first[, and]. THE DECREE shall also  provide  that  the
 authority  of  the  standby  guardian  may earlier become effective upon
 written consent of the parent pursuant to subparagraph [(iii)]  (IV)  of
 paragraph (e) of this subdivision.
   (iii) If at any time prior to the commencement of the authority of the
 standby  guardian  the court finds that the requirements of subparagraph
 (i) of this paragraph are no  longer  satisfied,  it  may  rescind  such
 decree.
   (e)  (i)  Where  the decree provides that the authority of the standby
 guardian  is  effective  upon  receipt  of  a   determination   of   the
 petitioner's incapacity, the standby guardian's authority shall commence
 upon  the  standby  guardian's  receipt  of a copy of a determination of
 incapacity made pursuant to subdivision six of this section. The standby
 guardian shall file a copy of the determination of incapacity  with  the
 court  that  issued the decree within ninety days of the date of receipt
 of such  determination  or  the  standby  guardian's  authority  may  be
 rescinded by the court.
   (ii) Where the decree provides that the authority of the standby guar-
 dian  is  effective  upon  receipt  of a certificate of the petitioner's
 death, or other such evidence of death that may be satisfactory  to  the
 court,  the standby guardian's authority shall commence upon the standby
 guardian's receipt of a certificate of death, or other such evidence  of
 death as may be specified in the decree. The standby guardian shall file
 the  certificate  of  death,  or  other such evidence of death, with the
 court that issued the decree within ninety  days  of  the  date  of  the
 petitioner's  death or the standby guardian's authority may be rescinded
 by the court.
   (III) WHERE THE DECREE PROVIDES THAT  THE  AUTHORITY  OF  THE  STANDBY
 GUARDIAN  IS EFFECTIVE UPON THE STANDBY GUARDIAN'S RECEIPT OF DOCUMENTA-
 TION OF THE PETITIONER'S ADMINISTRATIVE SEPARATION, THE STANDBY  GUARDI-
 AN'S  AUTHORITY  SHALL  COMMENCE  UPON THE STANDBY GUARDIAN'S RECEIPT OF
 DOCUMENTATION OF THE PETITIONER'S ADMINISTRATIVE SEPARATION PURSUANT  TO
 SUBDIVISION  SEVEN  OF  THIS  SECTION,  AND  RECEIPT OF THE PETITIONER'S
 CONSENT TO THE COMMENCEMENT  OF  THE  STANDBY  GUARDIAN'S  AUTHORITY  AS
 REQUIRED  PURSUANT  TO  THE  PROVISIONS  OF  SUBDIVISION  SEVEN  OF THIS
 SECTION.  THE STANDBY GUARDIAN SHALL FILE THE DOCUMENTATION OF  ADMINIS-
 TRATIVE  SEPARATION  WITH  THE COURT THAT ISSUED THE DECREE WITHIN SIXTY
 DAYS OF THE DATE OF THE STANDBY GUARDIAN'S RECEIPT OF  DOCUMENTATION  OF

 S. 6217--A                          4

 THE  PETITIONER'S  ADMINISTRATIVE  SEPARATION  OR THE STANDBY GUARDIAN'S
 AUTHORITY MAY BE RESCINDED BY THE COURT.
   [(iii)]  (IV) Notwithstanding subparagraphs (i) and (ii) of this para-
 graph, a standby guardian's authority shall commence  upon  the  standby
 guardian's receipt of the petitioner's written consent to such commence-
 ment, signed by the petitioner in the presence of two witnesses at least
 eighteen  years  of age, other than the standby guardian, who shall also
 sign the writing. Another person may sign the  written  consent  on  the
 petitioner's  behalf and at the petitioner's direction if the petitioner
 is physically unable to do so, provided such consent is  signed  in  the
 presence of the petitioner and the witnesses. The standby guardian shall
 file  the  written  consent with the court that issued the decree within
 ninety days of the date of receipt of such written consent or the stand-
 by guardian's authority may be rescinded by the court.
   (f) The petitioner may revoke a  standby  guardianship  created  under
 this  subdivision  by executing a written revocation, filing it with the
 court that issued the decree, and promptly notifying the standby guardi-
 an of the revocation.
   (g) A person judicially appointed standby guardian  pursuant  to  this
 subdivision  may  at  any  time  before  the  commencement of his or her
 authority renounce the appointment by executing a  written  renunciation
 and  filing it with the court that issued the decree, and promptly noti-
 fying the petitioner of the revocation.
   4. (a) A parent, a legal guardian, a legal custodian, or primary care-
 taker under the circumstances described in paragraph (a) of  subdivision
 three  of  this section OR UNDER CIRCUMSTANCES DESCRIBED IN SUBPARAGRAPH
 (I) OF PARAGRAPH (B) OF THIS SUBDIVISION may designate a standby guardi-
 an by means of a written designation, signed by the parent, legal guard-
 ian, legal custodian  or  primary  caretaker  in  the  presence  of  two
 witnesses at least eighteen years of age, other than the standby guardi-
 an, who shall also sign the writing. Another person may sign the written
 designation  on  the  parent's,  legal  guardian's, legal custodian's or
 primary caretaker's behalf and at the parent's, legal guardian's,  legal
 custodian's or primary caretaker's direction if the parent, legal guard-
 ian, legal custodian or primary caretaker is physically unable to do so,
 provided  the designation is signed in the presence of the parent, legal
 guardian, legal custodian or primary caretaker and the witnesses.
   (b) (i) A designation of a standby guardian shall identify the parent,
 legal guardian, legal custodian or primary caretaker, the infant and the
 person designated to be the standby guardian, and  shall  indicate  that
 the parent, legal guardian, legal custodian or primary caretaker intends
 for  the  standby  guardian to become the infant's guardian in the event
 the parent, legal guardian, legal custodian or primary caretaker either:
 (A) becomes incapacitated; (B) becomes debilitated and consents  to  the
 commencement  of  the  standby  guardian's  authority;  [or] (C) BECOMES
 SUBJECT TO AN ADMINISTRATIVE SEPARATION AND CONSENTS TO THE COMMENCEMENT
 OF  THE  STANDBY  GUARDIAN'S  AUTHORITY  AS  REQUIRED  PURSUANT  TO  THE
 PROVISIONS  OF  SUBDIVISION  SEVEN OF THIS SECTION; OR (D) dies prior to
 the commencement of a judicial proceeding to appoint a guardian  of  the
 person and/or property of an infant.
   (ii)  A  parent,  legal guardian, legal custodian or primary caretaker
 may designate an alternate standby guardian in the same writing, and  by
 the same manner, as the designation of a standby guardian.
   (iii) A designation may, but need not, be in the following form:
                      Designation of Standby Guardian

 S. 6217--A                          5
 
     (NOTE:  As  used  in  this form, the term "parent" shall include a
   parent, a court-appointed guardian of an infant's person or  proper-
   ty,  a  legal  custodian,  or  a  primary  caretaker,  and  the term
   "child(ren)" shall include the dependant infant of a parent,  court-
   appointed guardian, legal custodian or primary caretaker
         I (name of parent) hereby designate (name, home address and
      telephone  number  of standby guardian) as standby guardian of
      the person and property of my child(ren) (name of child(ren)).
         (You may, if you wish, provide that the standby  guardian's
      authority  shall  extend  only  to  the person, or only to the
      property, of your child, by crossing out "person" or  "proper-
      ty", whichever is inapplicable, above.)
         THE  APPOINTMENT  OF ___________ AS THE STANDBY GUARDIAN OF
      THE PERSON AND PROPERTY OF MY CHILD(REN) WOULD BE IN THE  BEST
      INTERESTS OF MY CHILD(REN) BECAUSE:  (INSERT JUSTIFICATION FOR
      APPOINTMENT OF THIS PERSON AS THE STANDBY GUARDIAN) __________
      ______________________________________________________________
      ____________________________________________________________ .
         The  standby guardian's authority shall take effect: (1) if
      my doctor concludes in writing that I  am  mentally  incapaci-
      tated,  and  thus  unable to care for my child(ren); (2) if my
      doctor concludes in writing that I am physically  debilitated,
      and  thus  unable  to  care for my child(ren) and I consent in
      writing, before  two  witnesses,  to  the  standby  guardian's
      authority  taking effect; (3) IF I BECOME SUBJECT TO AN ADMIN-
      ISTRATIVE SEPARATION SUCH THAT CARE  AND  SUPERVISION  OF  THE
      CHILD  WILL  BE  INTERRUPTED OR CANNOT BE PROVIDED; or [(iii)]
      (4) upon my death.
         In the event the person I  designate  above  is  unable  or
      unwilling  to  act  as  guardian  for  my child(ren), I hereby
      designate (name, home address and telephone number  of  alter-
      nate standby guardian), as standby guardian of my child(ren).
         I also understand that my standby guardian's authority will
      cease  sixty  days  after commencing unless by such date he or
      she petitions the court for appointment as guardian.
         I understand that I  retain  full  parental,  guardianship,
      custodial  or  caretaker rights even after the commencement of
      the standby guardian's authority, and may revoke  the  standby
      guardianship at any time.
         Signature: ________________________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
         I  declare  that the person whose name appears above signed
      this document in my presence, or was physically unable to sign
      and asked another to sign this document,  who  did  so  in  my
      presence.  I further declare that I am at least eighteen years
      old and am not the person designated as standby guardian.
         Witness' Signature: _______________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
         Witness' Signature: _______________________________________
         Address: __________________________________________________
         Date: _____________________________________________________
   (iv) Notwithstanding paragraphs (a) and (b)  of  this  subdivision,  a
 designation of standby guardian shall be effective as if made in accord-
 ance  with  the requirements of this subdivision if it was validly made:

 S. 6217--A                          6
 
 (a) where the parent, legal guardian, legal custodian or  primary  care-
 taker was domiciled at the time it was executed; (b) in the jurisdiction
 where  it  was  executed  or (c) where the parent, legal guardian, legal
 custodian  or primary caretaker is domiciled at the time the designation
 becomes effective.
   (c) The authority of the standby guardian under  a  designation  shall
 commence  upon either: (i) the standby guardian's receipt of a copy of a
 determination of incapacity made pursuant to  subdivision  six  of  this
 section; (ii) the standby guardian's receipt of (A) a copy of a determi-
 nation  of debilitation made pursuant to subdivision six of this section
 and (B) a copy of the parent's, legal guardian's, legal  custodian's  or
 primary  caretaker's written consent to such commencement, signed by the
 parent, legal guardian, legal custodian  or  primary  caretaker  in  the
 presence of two witnesses at least eighteen years of age, other than the
 standby  guardian,  who shall also sign the writing.  Another person may
 sign the written consent on the parent's, legal guardian's, legal custo-
 dian's or primary caretaker's behalf and at the parent's, legal  guardi-
 an's,  legal custodian's or primary caretaker's direction if the parent,
 legal guardian, legal  custodian  or  primary  caretaker  is  physically
 unable  to do so, provided such consent is signed in the presence of the
 parent, legal guardian, legal custodian or  primary  caretaker  and  the
 witnesses;  (III)  AN  ADMINISTRATIVE SEPARATION AND CONSENT AS REQUIRED
 PURSUANT TO THE PROVISIONS OF  SUBDIVISION  SEVEN  OF  THIS  SECTION  or
 [(iii)]  (IV)  the standby guardian's receipt of a certificate of death,
 funeral home receipt or other such document indicating that the  parent,
 legal  guardian,  legal  custodian  or  primary  caretaker has died. The
 standby guardian shall file a petition pursuant to paragraph (d) of this
 subdivision within sixty days of the date of its  commencement  pursuant
 to this paragraph or such standby guardian's authority shall cease after
 such date, but shall recommence upon such filing.
   (d) The standby guardian may file a petition for appointment as guard-
 ian after receipt of either: (i) a copy of a determination of incapacity
 made  pursuant to subdivision six of this section; or (ii) (A) a copy of
 a determination of debilitation made pursuant to subdivision six of this
 section and (B) a copy of the parent's, legal guardian's,  legal  custo-
 dian's or primary caretaker's written consent, pursuant to paragraph (c)
 of this subdivision; [or] (iii) DOCUMENTATION OF AN ADMINISTRATIVE SEPA-
 RATION AND CONSENT AS REQUIRED PURSUANT TO THE PROVISIONS OF SUBDIVISION
 SEVEN  OF  THIS  SECTION;  OR (IV) a certificate of death, or other such
 evidence of death that may be satisfactory to the court.  Such  petition
 must,  in  addition  to  meeting  the  requirements of section seventeen
 hundred four of this article:
   (i) append the written designation of such person as standby guardian;
 and
   (ii) append a copy of: (A) the  determination  of  incapacity  of  the
 parent, legal guardian, legal custodian or primary caretaker; or (B) the
 determination  of debilitation and the parental, guardian's, custodian's
 or caretaker's consent; [or]  (C)  DOCUMENTATION  OF  AN  ADMINISTRATIVE
 SEPARATION  AND CONSENT AS REQUIRED PURSUANT TO THE PROVISIONS OF SUBDI-
 VISION SEVEN OF THIS SECTION; OR (D)  a  copy  of  the  parent's,  legal
 guardian's,  legal custodian's or primary caretaker's death certificate,
 or other such evidence of death that may be satisfactory to  the  court;
 and
   (iii)  if  the petition is by a person designated as alternate standby
 guardian, state that  the  person  designated  as  standby  guardian  is

 S. 6217--A                          7
 
 unwilling  or  unable to act as standby guardian, and the basis for such
 statement.
   (e) Subject to the provisions of paragraph (c) of subdivision three of
 this section, if the court finds that the petitioner was duly designated
 as standby guardian, that the parent, legal guardian, legal custodian or
 primary  caretaker  of the infant is (I) incapacitated, (II) debilitated
 and consents, (III) HAS BECOME SUBJECT TO AN  ADMINISTRATIVE  SEPARATION
 AND CONSENTS AS REQUIRED PURSUANT TO THE PROVISIONS OF SUBDIVISION SEVEN
 OF  THIS  SECTION, or (IV) has died, as established by a copy of a death
 certificate or other such evidence of death as may  be  satisfactory  to
 the  court,  that  the  interests  of the infant will be promoted by the
 appointment of a standby guardian of the  person  and/or  property,  and
 that,  if  the  petition  is by a person designated as alternate standby
 guardian, the person designated as  standby  guardian  is  unwilling  or
 unable  to  act  as standby guardian, it must make a decree accordingly.
 PRIOR TO MAKING ITS FINDING, THE COURT MAY, IN ITS  DISCRETION,  APPOINT
 AN  ATTORNEY  FOR THE INFANT TO RECOMMEND WHETHER THE APPOINTMENT OF THE
 STANDBY GUARDIAN AS PROPOSED IN THE PETITION IS IN THE BEST INTERESTS OF
 THE INFANT.
   (f) The parent, legal guardian, legal custodian or  primary  caretaker
 may revoke a standby guardianship created under this subdivision: (i) by
 executing  a  subsequent  designation  of guardianship pursuant to para-
 graphs (a) and (b) of this  subdivision,  or  (ii)  notwithstanding  the
 provisions of sections seventeen hundred ten and seventeen hundred elev-
 en  of  this  article, in the case of a standby guardian whose authority
 becomes effective upon the death of the parent,  legal  guardian,  legal
 custodian  or  primary  caretaker  of the infant, by a subsequent desig-
 nation of standby guardian set forth in a  will  of  the  parent,  legal
 guardian,  legal  custodian  or primary caretaker, or (iii) by notifying
 the standby guardian verbally or in writing or by any other act evidenc-
 ing a specific intent to revoke the standby guardianship  prior  to  the
 filing  of  a  petition.  Where  the petition has already been filed, by
 executing a written revocation, filing it with the court where the peti-
 tion was filed, and promptly notifying the standby guardian of the revo-
 cation.
   5. The standby guardian may also file a petition  for  appointment  as
 guardian in any other manner permitted by this article or article six of
 the  family  court  act,  on notice to the parent, legal guardian, legal
 custodian or primary caretaker and may append a designation  of  standby
 guardian  to the petition for consideration by the court in the determi-
 nation of such petition.
   6. (a) A determination of incapacity or debilitation must: (i) be made
 by the attending physician to a reasonable degree of medical  certainty;
 (ii)  be in writing; and (iii) contain the attending physician's opinion
 regarding the cause and nature of the parent's, legal guardian's,  legal
 custodian's or primary caretaker's incapacity or debilitation as well as
 its  extent and probable duration. The attending physician shall provide
 a copy of the determination of incapacity or debilitation to the standby
 guardian, if the standby guardian's identity is known to the physician.
   (b) If requested by the standby guardian, an attending physician shall
 make a determination regarding the  parent's,  legal  guardian's,  legal
 custodian's  or  primary  caretaker's  incapacity  or  debilitation  for
 purposes of this section.
   (c) The standby guardian shall ensure that the parent, legal guardian,
 legal custodian or primary caretaker is informed of the commencement  of
 the standby guardian's authority as a result of a determination of inca-

 S. 6217--A                          8
 
 pacity  and  of  the  parent's,  legal  guardian's, legal custodian's or
 primary caretaker's  right  to  revoke  such  authority  promptly  after
 receipt  of the determination of incapacity, provided there is any indi-
 cation of the person's ability to comprehend such information.
   7.  DOCUMENTATION OF AN ADMINISTRATIVE SEPARATION (A) SHALL CONSIST OF
 AN ADMINISTRATIVE ORDER, JUDICIAL ORDER, AFFIDAVIT OR AFFIRMATION  INDI-
 CATING  THE  PARENT, LEGAL GUARDIAN, LEGAL CUSTODIAN OR PRIMARY CARETAK-
 ER'S ADMINISTRATIVE SEPARATION AS DEFINED IN THIS SECTION AND (B)  SHALL
 BE  ACCOMPANIED  BY WRITTEN CONSENT OF THE PARENT, LEGAL GUARDIAN, LEGAL
 CUSTODIAN, OR PRIMARY CARETAKER, SIGNED BY THE PARENT,  LEGAL  GUARDIAN,
 LEGAL  CUSTODIAN,  OR PRIMARY CARETAKER IN THE PRESENCE OF TWO WITNESSES
 AT LEAST EIGHTEEN YEARS OF AGE, OTHER THAN  THE  STANDBY  GUARDIAN,  WHO
 SHALL  ALSO  SIGN THE WRITING.  CONSENT CONTAINED IN THE FORMAL PETITION
 SUBMITTED PURSUANT TO SUBDIVISION THREE OF THIS SECTION OR  THE  WRITTEN
 DESIGNATION  MADE  PURSUANT TO SUBDIVISION FOUR OF THIS SECTION SHALL BE
 SUFFICIENT TO SATISFY THE REQUIREMENT FOR  CONSENT  SET  FORTH  IN  THIS
 SUBDIVISION.
   [7.]  8. The commencement of the standby guardian's authority pursuant
 to a determination of incapacity, determination of debilitation,  ADMIN-
 ISTRATIVE  SEPARATION,  or consent shall not, itself, divest the parent,
 legal guardian, legal custodian or primary caretaker  of  any  parental,
 guardianship,  custodial  or caretaker rights, but shall confer upon the
 standby guardian concurrent authority with respect to the infant.
   [8.] 9. (a) The clerk of any county upon being paid the  fees  allowed
 therefor  by  law  shall receive for filing any instrument appointing or
 designating a standby guardian pursuant to this section made by a  domi-
 ciliary  of the county, and shall give a written receipt therefor to the
 person delivering it. The filing of an  appointment  or  designation  of
 standby  guardian shall be for the sole purpose of safekeeping and shall
 not affect the validity of the appointment or designation.
   (b) The appointment or designation shall be delivered only to: (i) the
 parent,  legal  guardian,  legal  custodian  or  primary  caretaker  who
 appointed  or designated the standby guardian; (ii) the standby guardian
 or alternate standby guardian; (iii) the person  designated  as  standby
 guardian  or  alternate  standby  guardian;  or  (iv)  any  other person
 directed by the court.
   § 2. This act shall take effect immediately.

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Senate Bill S6217A

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Sponsored By

Diane J. Savino