NY State Senate Bill 2023-S8133

Senate Bill S8133

2023-2024 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

Current Bill Status - In Senate Committee Mental Health 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 08, 2024	referred to mental health

2023-S8133 (ACTIVE) - Details

See Assembly Version of this Bill:: A3772
Current Committee:: Senate Mental Health
Law Section:: Mental Hygiene Law
Laws Affected:: Amd Ment Hyg L, generally
Versions Introduced in Other Legislative Sessions:: 2015-2016: S4642, A6510
2017-2018: S4083, A1350
2019-2020: S4722, A5609
2021-2022: S3523, A2536

2023-S8133 (ACTIVE) - 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.

2023-S8133 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8133

SPONSOR: PARKER
 
TITLE OF BILL:

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

 
PURPOSE 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 OF BILL:

Section 1 of the bill amends subdivision (e) of Section 81.03 of the
mental hygiene law to define and 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 promot-
ing 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.
However, where there is no other legally authorized or available
resource, hospitals or nursing homes may commence a guardianship where a
guardian is needed to facilitate planning necessary to establish the
AIP's Medicaid eligibility.

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 reli-
able to meet the ATP' 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, informa-
tion about any documents known to the petitioner that grant such
resources legal authority to manage the affairs of the AIP, where rele-
vant, specific reasons for seeking revocation of any appointments or
delegations made by the AIP, 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 inter-
est in the AIP 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 attor-
ney 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 high-
lighted a disturbing practice where some nursing homes are filing guar-
dianship 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 with-
drawal 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 plan-
ning 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:

2021-22: S3523A/A2536 - Referred to Mental Health/Passed Assembly

2019-20: S4722/A5609 - Reported to Mental Health/Passed Assembly

2017-18: A.1350-A/S.4083-A - A. Codes/S. Mental Health

2015-16: A.6510-A/S.4642-A - Passed Assembly/S. Referred to Mental
Health & Developmental Disabilities

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

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.

2023-S8133 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8133
 
                             I N  S E N A T E
 
                              January 8, 2024
                                ___________
 
 Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Mental Health
 
 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
 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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD00063-01-3
 S. 8133                             2
 
   (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] SIXTY-FIVE  and  two  thousand
 nine  hundred eighty-one of the public health law, if known to the peti-
 tioner; 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:
   [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:
 S. 8133                             3
 
   § 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. Effective immediately, any rules and
 regulations necessary to implement the provisions of  this  act  on  its
 effective date are authorized to be made and completed on or before such
 effective date.

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