This bill has been amended

Bill S4642-2015

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

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.

Details

Actions

  • May 5, 2015: ADVANCED TO THIRD READING
  • May 4, 2015: 2ND REPORT CAL.
  • Apr 29, 2015: 1ST REPORT CAL.496
  • Apr 1, 2015: REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES

Votes

VOTE: COMMITTEE VOTE: - Mental Health and Developmental Disabilities - Apr 29, 2015
Ayes (11): Ortt, Carlucci, Felder, Hannon, Murphy, Serino, Seward, Hamilton, Krueger, Rivera, Serrano

Memo

BILL NUMBER:S4642

TITLE OF BILL:

An act to amend the mental hygiene law, in relation to requiring petitioners for appointment of a guardian to identify other persons who may be able to manage the affairs of an incapacitated person

PURPOSE:

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 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 promoting 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.

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 reliable to meet the AIP'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, information about any documents known to the petitioner that grant such resources legal authority to manage the affairs of the AIP, where relevant, 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 interest in the AIP is that of a creditor or those who provide day care 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 attorney 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 highlighted a disturbing practice where some nursing homes are filing guardianship 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 withdrawal 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. It 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:

New bill, 2015.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect on the one hundred eightieth day after it shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 4642 2015-2016 Regular Sessions IN SENATE April 1, 2015 ___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Develop- mental Disabilities 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. S 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. S 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: (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 and two thousand nine hundred eighty-one of the public health law, if known to the petitioner; and S 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; S 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; S 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; S 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; S 8. 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: (e) [Unless the court finds that no other person or corporation is available 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: 1. one whose only interest in the person alleged to be incapacitated is that of a creditor; 2. one, other than a relative, who is a provider, or the employee of a provider, of [health care,] day care[, educational,] or residential services to the incapacitated person, whether direct or indirect.
S 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. S 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. S 11. 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.

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