Relates to the appointment of guardians.
Sponsor: MCDONALD Committee: RULES
Law Section: Executive Law
Law: Amd S845-b, Exec L; amd S168-b, Cor L; amd S81.19, Ment Hyg L
Law Section: Executive Law
Law: Amd S845-b, Exec L; amd S168-b, Cor L; amd S81.19, Ment Hyg L
- Jun 21, 2012: SUBSTITUTED BY A10608A
- Jun 21, 2012: ORDERED TO THIRD READING CAL.1487
- Jun 18, 2012: PRINT NUMBER 7587B
- Jun 18, 2012: AMEND AND RECOMMIT TO RULES
- Jun 8, 2012: PRINT NUMBER 7587A
- Jun 8, 2012: AMEND (T) AND RECOMMIT TO RULES
- Jun 5, 2012: REFERRED TO RULES
VOTE: COMMITTEE VOTE: - Rules - Jun 21, 2012
BILL NUMBER:S7587 TITLE OF BILL: An act to amend the executive law, the correction law and the mental hygiene law, in relation to the appointment of guardians This measure is being introduced at the request of the Chief Administrative Judge, on recommendation of her Guardianship Advisory Committee. This measure would amend provisions of the Executive Law, the Correction Law and the Mental Hygiene Law (MHL) to give judges presiding in MHL article 81 proceedings greater information bearing on the fitness of guardians and potential guardians, consistent with information provided judges in custody and visitation proceedings. The Legislature's recent amendment to Domestic Relations Law section 240 authorized judges in custody and visitation matters to obtain information from the sex offender registry, the registry of orders of protection, indicated reports from the statewide central register of child abuse and maltreatment, and related warrants issued under Family Court Act article 10. The purpose of this amendment was to help judges ensure that these sensitive decisions are well informed by government information about the fitness of parties to care for children. If a party has a history of domestic abuse, sex abuse, violating orders of protection or a criminal record, this information must be known to the judge making decisions about the custody or visitation of vulnerable children. Likewise, when surrogates appoint guardians for minors, persons with developmental disabilities and mentally disabled under Surrogate's Court Procedure Act articles 17 or 17A, current law gives surrogates corresponding rights to obtain and consider criminal records checks and searches of the child abuse register (including indicated reports) to confirm that prospective guardians subject to appointment are fit for their duties (see SCPA �� 1704, 1706(a), 1707). By stark contrast, current law denies this vital data to judges presiding in MHL article 81 proceedings to authorize or revoke a guardianship for an incapacitated person (i.e., someone unable to provide for personal needs or manage his or her property or legal affairs). Typically incapacitated persons are elderly or suffer a substantial medical condition, thus likely to be particularly vulnerable to manipulation and abuse, To a guardian for an elderly person, article 81 powers can convey total control over an incapacitated person's finances and medical care, including the power to place such person in a nursing home. Given the sensitivity of guardianship appointments and the substantial powers that such appointments convey to guardians over incapacitated persons, there is every reason to provide to judges making article 81 appointments the same data regarding the criminal, sex abuse, child abuse and domestic violence history of prospective guardians, as if they were obtaining custody rights over a child. As a matter of practicality, public policy and public safety, there is no meaningful distinction between the two for this purpose. This result is especially necessary given that current law bars persons with felony convictions from serving as fiduciaries (see SCPA � 707; Rules of the Chief Judge (22 NYCRR)� 36.2(c)(7)), but MHL article 81 does not now give judges the information they need to enforce this law. As a result, judges unknowingly may appoint as guardian someone with a felony record. To achieve this necessary objective and protect incapacitated persons from potentially unfit guardians, section one of this measure would amend Executive Law section 845-b(2) to memorialize that criminal history searches would be authorized in proceedings pursuant to MHL section 81.19, as amended by section 3 of this act. Section two of this measure would amend Correction Law section 168-b(2)(b)(iii) to memorialize that searches of the sex offender registry would be authorized in proceedings pursuant to MHL section 81.19, as amended by section 3 of this act. Section three would add a new subdivision (g) to MHL section 81.18 to authorize courts making guardianship appointments or considering revocations of guardianship appointments to consider, for the guardian, proposed guardian and any person eighteen years of age or older residing in such guardian or proposed guardian's household, the following information: (1) a criminal history record check, with corresponding judicial powers to obtain and submit fingerprints to facilitate the search; (2) reports from the sex offender registry; (3) indicated reports from the statewide central register of child abuse and maltreatment; (4) reports from the statewide computerized registry of orders of protection; and (5) related decisions in court proceedings initiated pursuant to Family Court Act article 10 and related warrants issued under such Act. Section three also would clarify that, upon consideration of the foregoing data, a court may appoint, refuse to appoint or revoke an appointment of any person as guardian pursuant to MHL article 81. Section four would render this measure effective immediately upon enactment. This measure would have no fiscal impact on the State or any municipality. LEGISLATIVE HISTORY: None. New proposal.
S T A T E O F N E W Y O R K ________________________________________________________________________ 7587 I N SENATE June 5, 2012 ___________ Introduced by Sen. McDONALD -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the executive law, the correction law and the mental hygiene law, in relation to the appointment of guardians THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 845-b of the executive law, as amended by chapter 769 of the laws of 2005, is amended to read as follows:
2. Where a provider is authorized or required to request a check of criminal history information by an authorized agency pursuant to section 16.33, [
or] 31.35 OR 81.19 of the mental hygiene law or article twenty- eight-E of the public health law, such provider shall proceed pursuant to the provisions of this section and in a manner consistent with the provisions of article twenty-three-A of the correction law, subdivisions fifteen and sixteen of section two hundred ninety-six of this chapter and all other applicable laws. S 2. Subparagraph (iii) of paragraph b of subdivision 2 of section 168-b of the correction law, as amended by chapter 595 of the laws of 2008 and as further amended by section 104 of part A of chapter 62 of the laws of 2011, is amended to read as follows:
(iii) a court, to enable the court to promptly comply with the provisions of paragraph (a-1) of subdivision one of section two hundred forty of the domestic relations law, [
and] subdivision (e) of section six hundred fifty-one of the family court act, AND SUBDIVISION (G) OF SECTION 81.19 OF THE MENTAL HYGIENE LAW. S 3. Section 81.19 of the mental hygiene law is amended by adding a new subdivision (g) to read as follows:
(G) 1. IN MAKING AN APPOINTMENT OR CONSIDERING A REVOCATION OF AN APPOINTMENT UNDER THIS ARTICLE, THE COURT ALSO MAY OBTAIN AND CONSIDER, AND MAY AUTHORIZE A COURT EVALUATOR TO REVIEW THE SAME AND REPORT TO THE COURT CONCERNING, ANY OF THE FOLLOWING INFORMATION REGARDING THE GUARDI- EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15240-01-2 S. 7587 2 AN OR PROPOSED GUARDIAN AND ANY PERSON EIGHTEEN YEARS OR OLDER RESIDING IN THE GUARDIAN OR PROPOSED GUARDIAN'S HOUSEHOLD:
(I) A CRIMINAL HISTORY RECORD CHECK OF SUCH PERSON OR PERSONS; AND IN FURTHERANCE THEREOF, THE COURT SHALL HAVE THE POWER TO MAKE AND ENFORCE SUCH ORDERS AS THE COURT SHALL DEEM NECESSARY TO OBTAIN RECORDS OF ANY SUCH PERSON'S CRIMINAL HISTORY, INCLUDING BUT NOT LIMITED TO: (1) DIRECTING SUCH PERSON TO BE FINGERPRINTED; (2) DIRECTING THAT THE DIVI- SION OF CRIMINAL JUSTICE SERVICES PROMPTLY SHALL PROVIDE TO THE COURT A CRIMINAL HISTORY RECORD, IF ANY, WITH RESPECT TO SUCH PERSON PURSUANT TO SECTION EIGHT HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW, OR A STATEMENT THAT SUCH PERSON HAS NO CRIMINAL RECORD; AND (3) PROVIDING FOR THE SUBMISSION OF SUCH PERSON'S FINGERPRINTS BY THE DIVISION OF CRIMINAL JUSTICE SERVICES TO THE FEDERAL BUREAU OF INVESTIGATION FOR PURPOSES OF A NATIONWIDE CRIMINAL HISTORY RECORD CHECK PURSUANT TO AND CONSISTENT WITH PUBLIC LAW 92-544 TO DETERMINE IF SUCH PERSON HAS A CRIMINAL HISTO- RY IN ANY STATE OR FEDERAL JURISDICTION; (II) REPORTS FOR SUCH PERSON OR PERSONS FROM THE SEX OFFENDER REGISTRY ESTABLISHED AND MAINTAINED PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-B OF THE CORRECTION LAW; (II) INDICATED REPORTS FOR SUCH PERSON OR PERSONS FROM THE STATEWIDE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT ESTABLISHED AND MAIN- TAINED PURSUANT TO SECTION FOUR HUNDRED TWENTY-TWO OF THE SOCIAL SERVICES LAW, UPON A FINDING BY THE COURT, PURSUANT TO PARAGRAPH E OF SUBDIVISION FOUR OF SUCH SECTION, THAT SUCH INFORMATION IS NECESSARY FOR THE COURT TO DETERMINE WHETHER TO MAKE OR CONTINUE AN APPOINTMENT PURSU- ANT TO THIS ARTICLE; (IV) REPORTS FOR SUCH PERSON OR PERSON FROM THE STATEWIDE COMPUTERIZED REGISTRY OF ORDERS OF PROTECTION ESTABLISHED AND MAINTAINED PURSUANT TO SECTION TWO HUNDRED TWENTY-ONE-A OF THE EXECUTIVE LAW; AND (V) RELATED DECISIONS IN COURT PROCEEDINGS INITIATED PURSUANT TO ARTI- CLE TEN OF THE FAMILY COURT ACT AND RELATED WARRANTS ISSUED UNDER THE FAMILY COURT ACT. 2. UPON CONSIDERATION OF RECORDS AND REPORTS SPECIFIED IN PARAGRAPH ONE OF THIS SUBDIVISION, OR THE COURT EVALUATOR'S REPORT THEREON, AND AFTER NOTIFYING COUNSEL INVOLVED IN THE PROCEEDING, OR IN THE EVENT OF A SELF-REPRESENTED PARTY NOTIFYING SUCH PARTY, THE COURT MAY APPOINT, REFUSE TO APPOINT OR REVOKE THE APPOINTMENT OF ANY PERSON AS GUARDIAN PURSUANT TO THIS ARTICLE. S 4. This act shall take effect immediately.