ARTICLE 17-A GUARDIANSHIP NOT ALWAYS NECESSARY OR REQUIRED

MATTER OF SIMONE A., 2020 NY Slip Op 51207 - NY: Supreme Court October 15, 2020:

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Article 17-A governs guardianship of adults who are diagnosed with an intellectual or developmental disability. SCPA 1750, SCPA 1750-a. An intellectually disabled adult 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 adult is defined by SCPA 1750-a as an adult who has an impaired ability to understand and appreciate the nature and consequences of decisions which result in her incapacity to manage herself and/or her own affairs. The developmental disability must be permanent or indefinite, and must be 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. In summary, the petitioner must demonstrate, to the satisfaction of the court, that wholly removing Simone's legal right to make decisions about her affairs is necessary because she is incapable of managing herself and her affairs by reason of her disability. The petitioner must further demonstrate that the appointment of a guardian, who will substitute her decision making for Simone in every aspect of her affairs, is in Simone's best interests.

The appointment of a plenary guardian under Article 17-A results in the complete removal of an adult's legal right to make decisions over her or his own affairs. "Many decisions that define the essence of an individual, such as where and with whom she lives, whether she can travel, work, marry, engage in certain social activities, whether and how she manages her income and resources, and what medical treatment she undergoes or refuses, are removed from that individual, who will have lost the legal right and ability to govern her own affairs and participate in society without the approval of another," Matter of Michelle M., 52 Misc 3d 1211(A) (Sur Ct Kings County 2016). "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). See Matter of Capurso, 63 Misc 3d 725 (Sur Ct, Westchester County 2019); Matter of Zachary W., NYLJ, April 7, 2017 at 45, col 5 (Sur Ct, Suffolk County); Matter of Sean O., NYLJ, Oct. 7, 2016, at 26, col 6 (Sur Ct, Suffolk County); Matter of Chaim A.K., 26 Misc 3d 837 (Sur Ct, New York County 2009).

But see Matter of Robert C.B., 2020 NY Slip Op 20116 (Sur Ct, Dutchess County) (petition to terminate or modify existing guardianship pursuant to SCPA 1755 and 1759 was granted to the extent of terminating the guardianship of the person with developmental disabilities but denied as to guardianship of his property, with leave to renew upon a showing that the individual has "a network of family friends and/or community sources who are actively engaged and provide him with supported decision making"). For this reason, a plenary 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 available to meet the needs of the respondent. Matter of K.L., NYLJ XXXXXXXXXXXXX (Sur Ct, Richmond County 2017); Matter of Eli T., 62 Misc 3d 638 (Sur Ct, Kings County 2018); Matter of D.D., 50 Misc 3d 666 (Sur Ct, Kings County 2015).

Less restrictive alternatives to guardianship that meet the state's legitimate goal of protecting a person with developmental disabilities from harm connected to those disabilities include the availability of resources to assist the individual through an active support network of family and supportive services. See Matter of Robert C.B., at 732; Matter of Dameris, 38 Misc 3d 570, 579 (Sur Ct, New York County 2012). Indeed, "proof that a person with an intellectual disability needs a guardian must exclude the possibility of that person's ability to live safely in the community supported by family, friends and mental health professionals." Id. at 578. "SCPA 17-A must be read to require that supported decision making must be explored and exhausted before guardianship can be imposed or, to put it another way, where a person with an intellectual disability has the `other resource' of decision making support, that resource/network constitutes the least restrictive alternative, precluding the imposition of a legal guardian." Id. at 577.

Where there are less restrictive alternatives that are sufficient and reliable to meet the needs of the individual, guardianship is neither warranted nor in the individual's best interest. Matter of Capurso, 63 Misc 2d 725, 730 (Sur Ct, Westchester County, 2019); Matter of Chenel D., 2019 NYLJ LEXIS 125 (Sur Ct, Kings County).

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Upon the record presented, the credible evidence demonstrates that Simone is an adult living with autism, who, despite cognitive and adaptive limitations, has the capacity to make decisions about herself and affecting the management of her own affairs with the robust support of the petitioner, her stepfather, her grandmother, her school's supportive services, and the professionals who actively provide Simone with support. To allow Simone to retain her intrinsic right to make personal decisions about her own affairs, while providing her with any necessary assistance to make or communicate those decisions in the supported, instead of substituted, decision making framework which she already has in place, is the less restrictive alternative to guardianship and ultimately in her best interest. To the extent that Simone may desire additional support, alternatives to guardianship, such as a durable power of attorney, advance directives, health care proxies, and direct bank deposit systems, can provide targeted assistance without wholly supplanting Simone's fundamental right to make decisions that affect her affairs."