BILL NUMBER:S4179

TITLE OF BILL:  An act to amend the mental hygiene law, in relation to
notice of petition for the appointment of a guardian for purposes of
property management

PURPOSE OF BILL:

Amends Mental Hygiene Law section 81.21(c), to reduce the possibility
for confusion among practitioners and litigants seeking to satisfy
Mental Hygiene Law section 81.21(c)'s notice requirements.

SUMMARY OF PROVISIONS OF BILL:

The bill amends Mental Hygiene Law section 81.21(c) to replace the
erroneous reference to section 81.07(d) with a reference to Mental
Hygiene Law section 81.07(e)(1) that enumerates the individuals who
are entitled to notice via service of process of Orders to Show Cause
in Article 81 guardianship proceedings.

JUSTIFICATION:

The authority of a guardian appointed under Article 81 of the New York
Mental Hygiene Law ("MHL") to transfer an incapacitated person's
assets to another is derived from MHL section 81.21(a). In enacting
MHL section 81.21, "the Legislature gave statutory recognition to the
              

common-law doctrine of substituted judgment by expressly authorizing
the transfer of a part of the incapacitated person's assets to or for
the benefit of another person on the ground that the incapacitated
person would have made the transfer if he or she had the capacity to
act." (MATTER OF MILDRED A., 21 Misc.3d 1123(A), at *4 (Sup. Ct.,
Nassau County 2008).

MHL section 81.21(c) provides that, when an Article 81 guardian seeks
to transfer an incapacitated person's assets under that section, "the
persons entitled to notice in accordance with paragraph one of
subdivision (d) of section 81.07 of the (Mental Hygiene Law)", among
others, shall receive notice of the application. The failure to
satisfy the notice requirements set forth in MHL section 81.21(c) can
have serious practical implications, including subjecting the
court-authorized transfers to subsequent determinations that they are
invalid. See, MATTER OF BURNS, 267 A.D.2d 755, 757 (3d Dept. 1999).

Although MHL section 81.21(c) specifically references MHL section
81.07(d)(1), it appears that the cross-reference to MHL section
81.07(d)(1) is erroneous. In its current form, MHL section 81.07(d)
contains the legend for Orders to Show Cause commencing MHL Article 81
guardianship proceedings. Instead, it is MHL section 81.07(e)(1) that
enumerates the individuals who are entitled to service of process of
Orders to Show Cause in Article 81 proceedings. They include: (a) the
alleged incapacitated person; (b) the attorney for the alleged
incapacitated person; and (c) the court evaluator.

Based upon the foregoing, MHL section 81.21(c) should be amended to
help ensure that all individuals whom the Legislature intended to
receive notice of applications made under section 8121 receive such
notice; and to reduce the possibility for confusion among


practitioners and litigants seeking to satisfy MHL section 81.21(c)'s
notice requirements.

These objectives can be accomplished by amending MHL section 81.21(c)
to reference MHL section 81.07(e)(1), rather than MHL section
81.07(d)(1).

LEGISLATIVE HISTORY:

New Bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

EFFECTIVE DATE:

Immediately.