ARTICLE 17-A GUARDIANSHIP NOT AUTOMATIC

In New York State, when a person becomes 18 years old they are assumed to be legally competent to make decision for themselves. This means no other person is allowed to make a personal, medical or financial decision for that individual. If a person is "intellectually disabled or developmentally disabled," has difficulty making decisions for themselves and over 18 years old, many parents will  ask the Surrogate's Court to appoint a guardian for him or her. This was a case from 15 months ago that I wanted to report on but forgot - it taught me that there are no guarantees in seeking a guardianship and that each case is different because each person is different.

Matter of Eli T. 2018 NY Slip Op 28389 Decided on December 5, 2018 Surrogate's Court, Kings County Lopez Torres, S.:

"Before the court is a guardianship proceeding pursuant to Article 17-A of the Surrogate's Court Procedure Act (Article 17-A) to appoint Sarah T. and Solomon T. (together, the petitioners) as guardians of the person of Eli T. (the respondent or Eli), and for the appointment of Chaim T. as stand-by guardian.

Article 17-A governs guardianship of persons who are diagnosed with an intellectual or developmental disability. SCPA 1750, SCPA 1750-a. An intellectually disabled person is defined by SCPA 1750 as one who is permanently or indefinitely incapable of managing oneself and/or one's own affairs because of an intellectual disability. The condition must be certified by a licensed physician and a licensed psychologist or by two licensed physicians, one of whom has familiarity with or knowledge of the care and treatment of persons with intellectual disabilities. It must appear to the satisfaction of the court that the best interests of such person will be promoted by the appointment of a guardian. SCPA 1754 (5). A developmentally disabled person is defined by SCPA 1750-a as one who has an impaired ability to understand and appreciate the nature and consequences of decisions which result in one's incapacity to manage oneself and/or one's own affairs. The developmental disability must be permanent or indefinite and attributable to cerebral palsy, epilepsy, neurological impairment, autism, traumatic brain injury, or any condition found to be closely related to intellectual disability. The condition must have originated before the age of 22, except for traumatic brain injury which has no age limit. As with SCPA 1750, the condition must be certified by a licensed physician and a licensed psychologist or by two licensed physicians, one of whom has familiarity with or knowledge of the care and treatment of persons with developmental disabilities, and the court must determine that it is in such person's best interest that a guardian is appointed. SCPA 1754 (5). The legal analysis in determining the need for guardianship is functionally the same whether an individual's disability is categorized under section 1750 or 1750-a of SCPA and relies upon the same body of law.

Under Article 17-A, the appointment of guardianship results in the complete removal of the individual's legal right to make decisions over her or his own affairs. "The imposition of an Article 17-A guardianship is plenary, and, under the provisions of the statute, results in the total deprivation of the individual's liberties," Matter of Michael J.N., 58 Misc 3d 1204 (A) (Sur Ct, Erie County 2017). On its face, the plain statutory language of Article 17-A does not grant a court authority or discretion to limit or tailor the scope of guardianship to meet the individual's specific areas of need, unlike guardianships available under Article 81 of the Mental Hygiene Law (Article 81) which expressly provides a tailored approach to meeting the needs of an alleged incapacitated person. Matter of Chaim A.K., 26 Misc 3d 837 (Sur Ct, New York County 2009); Matter of D.D., 50 Misc 3d 666 (Sur Ct, Kings County 2015); Matter of Michael J.N., supra; Matter of Sean O., NYLJ, Oct. 7, 2016, at 26, col 6 (Sur Ct, Suffolk County). For this reason, an Article 17-A guardianship is the most restrictive type of guardianship available under New York law and should only be granted in the absence of less restrictive alternatives. See Matter of K.L., NYLJ 1202792444598 (Sur Ct, Richmond County 2017); Matter of Michelle M., 52 Misc 3d 1211(A) (Sur Ct Kings County 2016).

Submitted in support of the petition are two requisite certifications, from Moshe Lazar, M.D., and Alan Blau, Ph.D.[FN1] Dr. Blau, who supervised the administration of the Stanford Binet Intelligence Scales-Fifth Edition and Vineland Adaptive Behavior Scales, confirms the diagnosis of Downs Syndrome and adds, in his certification, that the respondent "functions within the mild range of intellectual disability" with a full scale IQ score of 64 and adaptive behavior composite score of 77. Dr. Lazar's certification, in describing the mental and physical condition of the respondent, simply states, "physical condition normal. Mental retardation. Down's syndrome."

A psychological evaluation from the New York State Hamaspik Association (the evaluation) and a psycho-social summary completed by Neil Weinstein, LMSW, were also submitted. The evaluation reveals that Eli's area of cognitive strength is fluid reasoning, described as "ability to solve verbal and nonverbal problems using inductive or deductive reasoning." His score of 79 in this area is classified as "borderline deficient." The evaluation also shows that Eli's area of relative cognitive weakness is knowledge, described as "acquired accumulated fund of general information acquired at home, school or work." His score of 60 in this area is classified as "mildly deficient." The evaluation describes Eli as a young man who possesses communication, daily living, and socialization skills ranging from "adequate" in certain areas of adaptive behavior, to "moderately low" in others. In the area of communication, the psychologist found that Eli is capable of describing short and long term goals, giving directions to and receiving directions from others, and "using irregular plurals correctly." The psychologist further found that "Eli understands sayings that are not meant to be taken word for word. He follows three part instructions. Eli follows instructions in if-then form and follows instructions heard five minutes before." With respect to reading and writing skills, Eli reads on at least a fourth, sometimes a sixth grade level, and he writes reports, papers or essays that are [*2]one or more pages long, completes mailing and return addresses on letters and packages, and composes business letters and correspondence at least ten sentences long. The psychologist observed that Eli sometimes self-edits or corrects before submitting his written work. In the area of daily living skills, the evaluation shows that Eli is independent in all aspects of his personal hygiene. He also takes his medicine as directed, cares for minor cuts, and seeks medical help in an emergency. He is able to use the stove, oven and the microwave for heating, baking, or cooking meals. He prepares food using a sharp knife and uses ingredients that require measuring mixing and cooking. Mr. Weinstein described Eli as "a very sweet, good natured 22 year old young man with the diagnosis of Down Syndrome and mild intellectual disability." According his summary, Eli received center-based education services, including speech therapy, occupational therapy, and physical therapy during his per-school years, and then was placed in a MIS-4 special education program through the Board of Education. After he graduated, he attended the Jewish Center for Special Education, a high school program for boys with Downs Syndrome, and attended their vocational training program. Having graduated, Eli volunteers at the Boro Park Rehabilitation Center (the Center).

A hearing was held during which oral testimony was given by Eli and the petitioners, who are Eli's parents, and who were represented by counsel. The Court had an opportunity to observe Eli's demeanor, which the Court found to be engaging, inquisitive, observant, informed, and highly conversant.

Eli testified that he volunteers five days a week at the Center, which he explained was a rehabilitation and healthcare center. His responsibility as a patient transporter is to bring patients from their rooms to the rehabilitation rooms, and then transport the patients back to their rooms in their wheelchairs. He testified he liked his job and when asked why, he responded, "Well, it keep me healthier. It keeps me on my feet." He testified that he tries to get to work at 9 o'clock but "it depends how long prayer takes." His shift ends at 2:30 p.m. Eli uses public transportation independently. Although he has not yet been travel trained to use the subway, Eli uses buses to travel. In his commute to the Center, Eli rides the public bus for 45 minutes to an hour each way. Three times a week, he works out at a gym after work, traveling independently from the Center to the gym. "I take the B11 from the Center, and then from the gym I take the B68," Eli testified. At the gym, Eli works out on the treadmill, lifts weights, uses the bike, and engages in other aerobic activities. He testified that working out makes him feel better and helps him lose weight so he can avoid diabetes. The petitioners testified that Eli's doctor had informed them that he was a pre-diabetic candidate. Eli stated, "I've decided to get out of the zone before I get onto it," explaining his plan to start eating healthier and get more exercise.

Currently, Eli receives Supplemental Security Income (SSI) and his parents assist him in managing his money. Eli testified that most of his money is deposited at Signature Bank but he carries pocket money, given to him by his dad from his own account, from which he makes purchases on his own. Eli testified that he does not get paid for the work he does at the Center, but he would one day like to have a job that pays.

Eli expressed that he would like to get married at some point, and "the money in the bank will buy, I'd pay for the apartment and the mortgage." He does not currently have a girlfriend nor is he dating, which he described as "when you actually meet a girl and you take her out." At one point when the Court asked, "do you see girls in the synagogue?" Eli corrected, "I see ladies."

Eli testified that he enjoys listening to music, reading the Bible, dancing, watching the news as well as shows on YouTube such as "The Three Stooges," " The Dick Van Dyke Show," "I Love Lucy," and "the Honeymooners." When asked why he likes to watch these old shows, Eli explained that he learns lessons from them. From "The Honeymooners," Eli explained that he learned, "don't be a big shot," while from "I Love Lucy," he learned "don't get into so much trouble," elaborating that "Lucy is like, she's a simple lady who gets into a lot of trouble with her husband." He also opined that he would not like to have a marriage exactly like Lucy's; rather he would like his marriage to be "hopefully calm." When asked if he found the show to be calm, he responded, "No, no. Plenty of yelling , shouting, hitting . . . [t]hat's when you begin to fall apart . . . [t]hat's when you ruin a marriage." Eli also follows the news, noting that there are "interesting politics" with respect to the (then) upcoming presidential election. Eli testified he is registered to vote and planned to vote in the November presidential election. When asked who was running, he said "Hillary Clinton and some crazy guy that's Trump." He also observed "Well, it looks like Hillary is going to win the White House. That's what the polls are saying."

Eli resides with his parents, the petitioners, and is the youngest of 11 adult children. Eli testified that his responsibilities at home include taking out the garbage and helping clean the house. He does not usually assist his mother, who does most of the cooking, in the kitchen but he testified he can cook light things like eggs and a sandwich, and in the past he has helped bake.

Eli testified that he believes he needs help with issues like medical choices. Aside from expressing concern over how knowing much medicine to take, Eli articulated no other type of medical situations for which he needed a guardian. He testified that he does not regularly take medicine, but during the previous summer he recalled having to take a "Z pack" for his sore throat. He appears to be generally healthy.

Eli's mother testified that they would like to help Eli make wise decisions including medical and financial decisions. She testified that Eli can't do math problems, but she thinks he could learn how to manage a checking account. Eli's father testified that Eli's SSI checks are directly deposited into a joint checking account held in Eli's and his father's names. Eli's father further testified that he then writes out a check from that joint account to himself, deposits it into his personal account, and then he uses the funds for Eli's benefit. Often Eli's expenses exceed what he receives in SSI, and his parents make up the difference. Eli's father testified that there hasn't been anything that Eli has wanted that they did not provide for, which Eli confirmed. Eli's father expressed that they want to be included in Eli's medical care and to be able to discuss medical issues with Eli's doctors, although both parents testified that Eli has never objected to their presence and participation during his doctor's visits. Eli's father also testified that it would be must easier to talk with the SSI program. When asked to articulate any other reasons the petitioners seek guardianship, Eli's mother testified "I don't see the down side to it." The petitioners affirmed that they never looked into obtaining a healthcare proxy or becoming a payee for Eli's SSI funds. The sole area of contention between the petitioners and Eli, as presented, was with respect to the petitioners' concern about Eli's weight. Eli's mother testified that they have to monitor what Eli eats, and that she prepares Eli's breakfast and dinner in order to manage his food intake. "If we did not watch the pantry and minimize the amount of nosh in the house, things would get out of control," Eli's mother testified.

Aside from a disagreement between Eli and the petitioners over whether Eli administered [*3]medication independently or was assisted by Eli's mother, and an erroneous recollection of the duration of the "Z pack" medicine, there were no specific examples proffered of how Eli has made any medical decisions that have adversely affected his well-being. The petitioners, who make medical appointments for Eli, are always present and authorized by Eli to speak with his physicians. With his consent, Eli's finances are already managed by the petitioners in a joint bank account, and to the extent that Eli desires that his parents communicate more directly with the Social Security Administration regarding his SSI, he may choose to designate the petitioners as his payee, a far less restrictive alternative to guardianship. With respect to Eli's weight, it has not been shown how the petitioner's desire to help Eli maintain a healthy weight, a goal which Eli evidently shares, will be aided by the imposition of an Article 17-A guardianship.

There is no doubt that the petitioners are deeply devoted to Eli and are motivated by what they believe is in his best interest. While one's natural instinct to protect one's loved one may be assuaged by the appointment of a guardian, it is not, however, in the best interest of a person who can make decisions aided by the support of those he trusts, to have his ability to make decisions wholly removed by appointing a Article 17-A guardian, no matter how well-intentioned the guardians. The appropriate legal standard is not whether the petitioners can make better decisions than Eli; rather, it is whether or not Eli has the capacity to make decisions. The record presented is devoid of evidence regarding Eli's inability to make decisions with the support he currently has; indeed, no actual harm resulting from Eli's decision-making, preventable by the appointment of guardianship, has been demonstrated or even alleged.

Upon the record presented, the credible evidence demonstrates that Eli is an adult who has cognitive limitations but also has capacity to make decisions affecting the management of his affairs with the sufficient and reliable support of his loving family. Where, as here, the individual has strong support from family members and/or supportive services with whom he already consults in managing his affairs and making decisions, imposing a plenary guardianship is not in the individual's "best interest." Matter of Dameris L., 38 Misc 3d 570, 579. To allow Eli to retain the legal right to make personal decisions about his own affairs, while providing him with any necessary assistance to make or communicate those decisions in a supported decision-making framework, is ultimately in his best interest.

To the extent that Eli may desire additional support, evidence of which has not been presented, alternatives to guardianship, such as a durable power of attorney, advance directives, health care proxies, and representative payee arrangements, can provide targeted assistance without wholly supplanting Eli's right to make decisions in every aspect of his affairs.

Footnote 1:These certifications are generally boilerplate forms where the affirmant physician or psychologist checks off pre-printed conclusions relating to the decision-making capabilities of an intellectually or developmentally disabled individual. These forms are dismally wanting in details and useful information regarding the functional capacity of the respondent."