Article 17-A Guardianship: It is Not for Everyone
September 29, 2016
In two recent decisions, Surrogate Lopez Torres of Kings County denied petitions for guardianship under SCPA Article 17-A, demonstrating the strict circumstances under which guardians are appointed under this particular statute. SCPA §1750-a applies to persons who are intellectually disabled (as that term has generally been substituted for the archaic term “mental retardation” which appears in the statute) and are permanently or indefinitely incapable of managing his or her own affairs. The statute requires that the condition be certified by a licensed physician and a licensed psychologist (or two licensed physicians, one of whom is familiar with or has knowledge of the care and treatment of the disabled person); and that the court is satisfied that appointing a guardian is in the best interests of the disabled person. Unlike under Article 81 of the Mental Hygiene Law, the court has no discretion or authority to limit or tailor the powers of a guardian under Article 17-A. Thus, in both proceedings, the court was quite cognizant of the fact that an Article 17-A guardianship is the “most restrictive type of guardianship available” in this State because it “completely removes that individual’s legal right to make decisions over her own affairs and vests the guardian ‘virtually complete power over such individual’” (Proceeding for the Appointment of a Guardian for Michelle M., 2016 NY Slip Op 51114(U) at *3 [Sur Ct., Kings County]). The potential loss of liberty was the court’s primary concern.
In Proceeding for the Appointment of a Guardian for Michelle M., decided on July 22, 2016, the parents of a 34 year-old diagnosed with Down’s Syndrome petitioned to become their daughter’s guardian, claiming that she was unable to make medical and other decisions regarding her welfare. The petition contained the requisite certifications, which opined, according to the court, in conclusory fashion, that Michelle was not capable of managing herself or appreciating the nature and consequences of health care decisions. However, the record revealed that Michelle led an independent life and made her own decisions. She lived with roommates in an apartment, shopped for and cooked her own food, held a part-time job for six years, managed her own finances, traveled independently, and made and kept her own doctors’ appointments on a regular basis. In the face of this evidence, the court was particularly concerned with whether appointing a guardian based on the medical certifications “without careful and meaningful inquiry into the individual’s functional capacity, relies on the incorrect assumption that the mere status of intellectual disability provides sufficient basis to wholly remove an individual’s legal right to make decisions for himself” (id. at *4). The court had no doubt that the petitioners loved and wanted to protect their daughter, but noted that the standard for appointing a guardian was not whether they could make better decisions for Michelle, but rather, whether Michelle had the capacity to make decisions for herself, which was not disputed.
In Estate of Antonio C., NYLJ, July 26, 2016, p. 25, col. 4 (Sur Ct, Kings County), also decided on July 22, 2016, the court’s decision to deny the petition for guardianship over the 66 year-old was seemingly easier. First, the statutory requirements were not met, as there was no evidence that the respondent’s purported disability was present before he was 22 years old. Additionally, it appeared to the court that the petitioner had a personal motive for seeking guardianship. The petitioner was a former boyfriend of the respondent’s sister, and had lived with the respondent for nine months in a New York City Housing Authority apartment. According to the petitioner, he could not be added to the respondent’s lease unless he became his legal guardian. Moreover, the evidence adduced at the hearing showed that the respondent could manage his own affairs and possessed essential living skills; he had lived on his own for a period of time before the petitioner moved into his apartment. Given these factors, the court concluded that a tailored guardianship was more appropriate than the global guardianship under Article 17-A.