MODIFYING AN ARTICLE 17-A GUARDIANSHIP

Things change - something we must always keep in mind - and this case has a nice story to it.

Matter of Jacob A.B., NYLJ  January 31, 2020, Date filed: 2020-01-24,  Court: Surrogate's Court, Westchester, Judge: Surrogate Brandon Sall, Case Number: 2010-2501/G:

"In this uncontested proceeding pursuant to SCPA 1755 and 1759, the petitioners, as guardians of the person and property of Jacob A. B. (Jacob), seek to modify the order of guardianship in order to dissolve the property guardianship. The petitioners are Jacob’s parents. Jacob is 27 years old. The court appointed Mental Hygiene Legal Service (MHLS) as guardian ad litem to protect Jacob’s interests. In support of their original petition for guardianship of Jacob’s person and property, the petitioners submitted certifications from two doctors. Dr. Mathew Dugan affirmed that Jacob has “mild to moderate, global” cerebral palsy and “cognitive delay” and that he was “unable to perform activities of daily living reliably without supervision.” Dr. Ronald Jacobson affirmed that Jacob has Asperger’s Syndrome with “social/cognitive/and neurological impairment” and “limited interests, narrow range of social functioning eg talks about his one area of interest — computers.”

In a decision dated January 24, 2011, the court determined that Jacob is a person with a developmental disability within the provisions of SCPA article 17-A and issued a decree appointing the petitioners as co-guardians of Jacob’s person and property, Marc S. as standby guardian and Joel B. as first alternate standby guardian.

The petitioners now assert that circumstances have changed and that the property guardianship should be terminated because Jacob can make decisions for himself regarding his property. They further assert that Jacob continues to need a guardian of his person because he does not understand the implications of his personal care and medical decisions. With respect to healthcare, the petitioners state that Jacob does not seek medical assistance on his own, cannot follow doctors’ advice and “does not understand the cause and effect of his medical care even when they are explained to him.”
SCPA 1759 authorizes a guardian to file a petition to modify, dissolve or otherwise amend a guardianship order (see SCPA 1759 [2]). In addition, SCPA 1755 gives the court discretion to modify a guardianship order and directs that the court “shall so modify the guardianship order if in its judgment…the interests of justice will be best served” (SCPA 1755). On an application to revoke guardianship letters, the petitioners bear the burden of proving that the guardianship is not in the ward’s best interest (see Matter of Capurso, 63 Misc 3d 725, 728 [Sur Ct, Westchester County, 2019]; Matter of Michael J.N., 58 Misc 3d 1204 [A] [Sur Ct, Erie County, 2017]).

There are relatively few reported cases dissolving 17-A guardianships (see e.g. Matter of Capurso, 63 Misc 3d 725; Matter of Michael J.N., 58 Misc 3d 1204 [A]; Matter of Dameris L., 38 Misc. 3d 570 [Sur Ct, N.Y. County, 2012]; Matter of Guglielmo, NYLJ, Nov. 13, 2006, at 23, col. 1[Sur Ct, Suffolk County]). As stated in Matter of Dameris L., the “legal remedy of guardianship should be the last resort for addressing an individual’s needs because it deprives the person of so much power and control over his or her life” (Matter of Dameris L., 38 Misc.3d at 577). Before a guardianship decree will issue under SCPA 17-A in the first instance, the court must determine that the respondent has a disability with the provisions of the statute, and must be satisfied that the “best interests of the person who is intellectually disabled or…developmentally disabled will be promoted by the appointment of a guardian…” (see SCPA 1750-a [2] and 1754 [5]). The test in assessing whether a guardianship or continuation of a guardianship is in the person’s best interest should include an assessment of the ward’s “functional capacity” and what he can and cannot do in managing daily affairs (see Capurso, 63 Misc at 729 [citing Matter of Michael J.N., 58 Misc 3d 1204 [A]]; see also Matter of Hytham M.G., 52 Misc 3d 1211 [A] [Sur Ct, Kings County 2016]).

By all accounts, with the support of the petitioners and others, Jacob has made excellent progress in his development since the court issued the original letters of guardianship of his person and property. He attended a boarding school for special needs students and after graduation, he completed a two-year post-high school transitional program and then transitioned to a program which enabled him to further develop his independent living skills. Significantly for the current petition, that program also provided healthcare oversight.

In light of Jacob’s current functional capacity as demonstrated on the record before the court, and the recent caselaw’s developing emphasis on the least restrictive alternatives to plenary guardianship, the court requested that the petitioners submit an updated physician’s evaluation to address Jacob’s neurobehavioral function and whether he continued to need a plenary guardianship. The court also asked the guardian ad litem to address not only whether termination of the property guardianship is warranted, but also whether dissolution of the guardianship in its entirety might be in Jacob’s best interest.
The petitioners submitted an updated evaluation from Dr. Jacobson to address Jacob’s neurobehavioral function. Dr. Jacobson, who has treated Jacob since he was seven years old, reiterates Jacob’s diagnoses, including “autistic spectrum disorder,” “anxiety” and “some learning disabilities.” Reviewing Jacob’s continuing development and acquisition of skills in certain areas, he notes that Jacob “has gone from being overly focused on the trivial to being very focused” on the details of managing his family’s rental properties and handling his financial affairs. With respect to issues relating to guardianship of the person, however, Dr. Jacobson opined that Jacob still needs a guardian because he “has trouble managing his own health.”

In his report, the guardian ad litem states that Jacob wishes to end the property guardianship but wants the guardianship of his person to continue because he becomes frozen around certain issues, including, especially, his healthcare. The guardian ad litem supports the relief requested by the petitioners.

After careful consideration, in light of the demonstrated improvement in Jacob’s functional capacity as it relates to financial matters, the court finds that a property guardianship is no longer warranted. Therefore, the property guardianship is dissolved, and the letters of guardianship are revoked to the extent of the property guardianship.

With respect to maintaining the guardianship insofar as it relates to Jacob’s person, the court notes that the petitioners — Jacob’s parents — have been instrumental in finding and providing supports to enable and empower Jacob to achieve independence. Indeed, they filed this proceeding in order to restore his right to manage his own property and financial affairs. The petitioners, Dr. Jacobson, the guardian ad litem and Jacob all believe that Jacob still needs a plenary guardian, particularly for healthcare and medical decision making. On this record, and in light of the scattered skill sets associated with autism,1 the court is not inclined to substitute its judgment for theirs. The court is confident that the petitioners will return to dissolve the guardianship of Jacob’s person at such time as he feels able to manage his personal and healthcare needs with supports short of a plenary guardianship of the person. Accordingly, the guardianship of Jacob’s person shall remain in place.
The petition is granted. The letters of guardianship shall be modified to revoke the property guardianship."