S7587-2011 Actions

• 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

S7587-2011 Votes

S7587-2011 Memo

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.

S7587-2011 Text

                      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.