APPLICATION FOR ARTICLE 17-A GUARDIANSHIP DENIED

Matter of Chaim G., 2021 NY Slip Op 50533(U), Decided on May 14, 2021, Surrogate's Court, Kings County, Lopez Torres, J:

"Before the court is a guardianship proceeding pursuant to Article 17-A of the Surrogate's Court Procedure Act (Article 17-A), to appoint Jennifer G. N. (Jennifer) and Jerome G. (Jerome), Chaim G.'s (Chaim) siblings,[FN1] as his co-guardians. Mental Hygiene Legal Services (MHLS) appeared on behalf of Chaim.

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 either i) by a licensed physician and a licensed psychologist or ii) 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 one who has an impaired ability to understand and appreciate the nature and consequences of decisions, which impairment results in the incapacity to manage oneself and/or one's 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 existence and extent of developmental disability is required to 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 such person's best interests require appointment of a guardian. 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 an adult'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, [*2]Erie County 2017). See also 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). On its face, the plain statutory language of Article 17-A does not grant a court authority or discretion to limit or fashion 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 provide for an individualized 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 Michael J.N., supra; Matter of Sean O., supra. "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). Consequently, 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. See Matter of K.L., NYLJ 1202792444598 (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); Matter of Michelle M, supra.

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., 2020 NY Slip Op 20116 (Sur Ct, Dutchess County); 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. 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, supra at 730; Matter of Chenel D., 2019 NYLJ LEXIS 125 (Sur Ct, Kings County); Matter of Michelle M, supra (". . . [J]ust as we recognize that the law 'and common principles of human decency' generally require that we build a ramp so that an individual with a physical impairment can enter a building without being carried up the steps, we should also recognize a legal obligation to provide decision making support to an individual with limitations in mental capabilities rather than assign a guardian to make decisions for that person," quoting Leslie Salzman, Rethinking Guardianship (Again): Substituted Decision Making As A Violation of the Integration Mandate of Title II of the Americans with Disability Act, 81 Colorado L. Rev. 157 [2010]).

Submitted in support of the petition are certifications from two licensed psychologists and a physician,[FN2] which confirm Chaim's diagnosis of Down Syndrome and mild or mild-[*3]moderate intellectual disability. A psychological evaluation (the evaluation) was also submitted. The evaluation reveals that Chaim's primary areas of cognitive strength are Knowledge, described as "a person's accumulated fund of general information acquired at home, school or work," Fluid Reasoning, described as "the ability to solve problems using inductive or deductive reasoning," and Quantitative Reasoning, described as "an individual's facility with numbers and numerical problem solving." Chaim's IQ scores in these areas on the Stanford-Binet Intelligence Scales: Fifth Edition fall within the range of mild intellectual disability. The evaluation also shows that Chaim's areas of cognitive weakness appear to be in Working Memory, described as "the class of memory processes in which diverse information stored in short-term memory is inspected, sorted, or transformed," and Visual-Spatial Skills, described as "the ability to see patterns, relationships, spatial orientations ". Chaim's scores in these areas fall within the range of moderate intellectual disability.

The evaluation also reveals the results of Chaim's adaptive assessment, emphasizing that "a person's overall level of functioning is determined not by one's IQ score, but rather the results of one's adaptive assessment." Administering the Vineland Adaptive Behavior Scales, Third Edition, the evaluation reveals that Chaim's adaptive behavior score for socialization skills, communication skills, and daily living skills yielded a composite score which placed his ability to socialize, communicate and carry out daily living skills within the range of "mild deficit," and is "a more adequate measure of Chaim's current functioning." The evaluation described Chaim as someone who interacted readily and easily, and who appeared to enjoy the testing session. He attempted all tasks presented to him, "appeared proud when he completed a task successfully, and stated 'I don't know' or 'I can't do this' when a task proved too difficult." In the evaluation, Dr. Glicksman recommended that Chaim continue to receive all current services to address his diagnoses and "promote his inclusion as a full and productive member of the community." In the area of daily living skills, Chaim.eats independently and takes care of his personal hygiene, including dressing and showering independently. He understands the value of money and enjoys making smaller purchases at the store. He walks independently to familiar destinations and requires assistance in navigating to unfamiliar or new locations. Chaim arrived independently by Uber car service, arranged by his residential staff.

A hearing was held during which oral testimony was given by Chaim, the co-petitioners, as well as Zev Schloss (Zev), Chaim's care manager (previously known as a Medicaid Service Coordinator). The court had an opportunity to observe Chaim's demeanor, which the court found to be appropriate, responsive, outspoken, personable, observant, and engaging.

Chaim lives in a two bedroom apartment in Brooklyn as part of a supportive residential program for adults with intellectual disabilities operated by the Women's League Community Residences. Jerome, who lives in New Jersey, testified that Chaim has lived there for the past 15-20 years. Jerome further testified that their parents wanted Chaim to have greater socialization and that Chaim has been "very happy and thriving there." Zev, who testified that he has worked with Chaim since 2007 at the residence, describes Chaim as "very powerful in terms of functioning." Zev further testified that "Chaim is very opinionated and he's not afraid, to his credit, to share his opinions," and "[h]e will tell you based on what he understands and he [*4]believes that he answered your questions." He also testified that Chaim is highly socially adept, although he believes that "it sometimes masks in understanding."

On weekdays. Chaim works at Otsar Family Services, a nonprofit organization founded by Chaim's parents to give opportunities to individuals with developmental disabilities. Chaim testified that he enjoys helping the children at Otsar, which offers day habilitation and other programs. Chaim also works at his synagogue putting prayer books away and assisting in other jobs. He is interested in volunteering for the Hatzola ambulance service. According to MHLS, Chaim enjoys going to the movies with a friend who lives in his building, "who is somewhat shy" and "Chaim is like a mentor to this individual." He enjoys engaging in recreational activities organized by an agency called Yachad on weekends. Chaim does not cook but can help prepare food and set the table. He visits his father in Queens utilizing access-a-ride and has expressed desire to learn to travel alone.

Chaim appears to be in good health. Jerome testified that while Chaim has had medical issues from time to time, Chaim has no major medical conditions, takes no medication, nor has he ever been hospitalized or required emergency room visits. Social workers at the residence assist Chaim in making appointments for regular medical and dental care, and staff accompany Chaim on said visits.

Zev testified that Chaim seeks assistance when he needs it. Chaim consults with him, his father, his siblings, and staff members at the residence for guidance. Jennifer testified that Chaim calls her for guidance and consults with her when he has problems, even though "[he] doesn't always like the answer." When asked what happens in those situations, Jennifer testified that " we work it out. I speak to people from his — from the home. They call me, also. We work things out. There's always — it's always left off with a good answer. There's always — it's never — he's never dissatisfied. It's always fine, okay. Right, Chaim, when we talk?"

Chaim's finances are already managed by his family. Jerome testified that he and Jennifer are the trustees of a special needs trust for Chaim's benefit, and their father is the representative payee. Chaim does not appear to have other sources of income.

The petitioners contend that they are seeking Article 17-A guardianship to help make Chaim make decisions, to give him a voice, to make healthcare decisions, and "if for whatever reason, we find something objectionable in his home environment we would be able to take the proper steps for him."

There is no doubt that the petitioners are deeply devoted to Chaim and are motivated by their commitment to advancing Chaim's best interests. 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 an Article 17-A guardian, no matter how well-intentioned the guardian. The appropriate legal standard is not whether the petitioners can make better decisions than Chaim; rather, it is whether Chaim has the capacity to make decisions with the support that he has. Aside from an occasion when Chaim accompanied friends to another location without notifying his residence, which resulted in no actual harm, the record is devoid of evidence regarding Chaim's inability to make decisions with the network of support that he has. Indeed, without guardianship, the petitioners testified, "Chaim has been thriving wonderfully well in the environment he's been living in for the last almost twenty years Chaim has thrived and really grown in many ways over the last number of years and we certainly wanted to be able to keep that active social environment that he has. He's well-known [*5]and beloved in his community."

Upon the record presented, the credible evidence demonstrates that, at the time of the hearing, Chaim is a middle-aged 45-year-old adult who, despite his limitations, has been thriving for the past 27 years in a supportive environment without guardianship. It is not disputed that Chaim is an individual living with cognitive and adaptive limitations; however, it is evident that Chaim has, for his entire adult life, been exercising his capacity to make decisions affecting the management of his affairs with the robust and reliable support of his loving siblings and family, devoted care manager, social workers and residence support staff. Where, as here, an individual has strong support from family members and 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, supra at 579. The petitioners testified that they would like to make sure that Chaim has a voice and to assist him in making decisions. Those expressed goals are frustrated with the imposition of an Article 17-A plenary guardianship, which removes, instead of supports and aids, Chaim's ability and legal right to make decisions. To allow Chaim to retain his dignity, interdependence, and legal right to make personal decisions about his own affairs, while continuing to provide 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 Chaim may desire additional support, alternatives to guardianship, such as a modified health care proxy developed by the Office of Persons With Developmental Disabilities wherein Chaim can designate family and individuals whom he trusts to consult with, general health care proxies, a power of attorney, and representative payee arrangements, can provide targeted assistance without wholly supplanting Chaim's right to make decisions in every aspect of his affairs.

Upon the record presented, it has not been demonstrated to the satisfaction of the court that guardianship pursuant to Article 17-A is the least restrictive means to address Chaim's needs where the presence of supported, instead of substituted, decision-making is available for Chaim. It is evident that Chaim seeks advice and direction from his loving family and support professionals before making significant decisions, and nothing in this court's ruling precludes Chaim from continuing to do so, nor does it preclude his family members from continuing to be involved in his medical and financial decisions. As it has not been sufficiently demonstrated that Chaim is a person in need of a guardian pursuant to Article 17-A and that it is in his best interest to have a guardian appointed for him, accordingly, the petition for the appointment of a guardian of the person pursuant to Article 17-A is denied and dismissed."