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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1350A
SPONSOR: Weinstein (MS) 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 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.
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 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, 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, fami-
lies 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.
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 planning 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:
2016: A.6510-A/S.4642-A - PA/S.Mental Health
2015: A.6510-A/S.4642-A - PA/S.Rules
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take affect on the one hundred eightieth day after it
shall have become law.
