AUTISM AND GUARDIANSHIP AND ARTICLE 17-A

Matter of Matthew S.F, Date filed: 2021-12-10, Court: Surrogate's Court, Kings, Judge: Surrogate Margarita Lopez Torres (emphasis supplied:

"DECISION AND ORDER 

Before the court is a guardianship proceeding pursuant to Article 17-A of the Surrogate’s Court Procedure Act (Article 17-A), to appoint Ivette F. (the petitioner) as guardian of the person of Matthew S. F. (Matthew), and Luis A. F. and Livia C. F. as standby and alternate standby guardians. A guardian ad litem (GAL) was appointed for Matthew in this proceeding.1 Article 17-A governs guardianship of adults who are diagnosed with an intellectual or developmental disability. SCPA 1750, SCPA 1750-a. The condition must be certified by a licensed physician and 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). Under Article 17-A, the appointment of guardianship is plenary and results in the complete removal of an adult’s legal right to make decisions over her or his own affairs. Matter of Michael J.N., 58 Misc 3d 1204(A) (Sur Ct, Erie County 2017); 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). Consequently, Article 17-A guardianships are 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). Where less restrictive alternatives exist that are sufficient and reliable to meet the needs of the individual, such as an active support network of family and supportive services, guardianship is neither warranted nor in the individual’s best interest. Matter of Capurso, 63 Misc2d 725, 730 (Sur Ct, Westchester County 2019); Matter of Chaim G., 17 Misc 3d 1230 (A) (Sur Court, Kings County 2021).

Documentary evidence submitted include the requisite certifications which contain a diagnosis of autism and mild intellectual disability, Matthew’s 2018 Individualized Education Plan (IEP), and psychological/psychosocial evaluations. His IEP reveals that reading, reading comprehension, and spelling are among Matthew’s academic strengths; he makes real world connections by applying skills learned in the classroom such as following google maps, checking store operation hours, making a purchase and creating shopping lists; he serves as an effective facilitator by having the ability to motivate his peers to finish tasks to completion; he initiates conversations with peers and adults about past and present events; he completes basic math problems by applying the correct rule but struggles with double digit multiplication and division.

The GAL, for her report, interviewed Matthew as well as many individuals with whom he interacts: the petitioner, Ms. F., Matthew’s main classroom teacher, art teacher, primary care physician, guitar instructor, and the occupational therapist in charge of the Star Café, where Matthew participated in an apprenticeship program. The certifying doctors declined to meet with the GAL. Upon conclusion of this thorough process, the GAL submitted a written report (the report), documenting her findings and recommendation. According the report, several of Matthew’s teachers observed that Matthew is a fast learner who has a higher functional capacity than many of his peers. His main teacher expressed that Matthew could master and remember what he learned previously, including replicating mathematical solutions in algebra. The report reveals that Matthew has worked at a Marshall’s department store and CVS pharmacy through the work placement program offered through his school. Matthew’s jobs supervisor expressed that Matthew speaks for himself, gives direction and leads his peers. The report further describes Matthew’s work at the Star Café, where he takes customer orders, manages the case register, and make smoothies for customers. His music teacher describes Matthew as a naturally talented and dedicated student who is able to replicate songs by ear on the piano and guitar, and one who enjoys playing with others during jam nights where students give impromptu performances. Matthew attends school during the day, traveling by school bus. His after-school activities include practicing his guitar, completing homework assignments, playing videogames on his iPad. His home chores include cleaning his dishes after every meal and vacuuming the floor when it is dirty, according to the report. The GAL concluded that Matthew was not a person in need of a guardian and recommended that the petition not be granted.

A hearing has been held during which testimony was given by the parties, during which the Court had an opportunity to observe Matthew and his demeanor. Matthew is a vibrant, attentive, and compassionate young man who was fully engaged and responded appropriately throughout the entire hearing. He testified that he would like to work in a retail store and make money, which he plans to save. Matthew testified that when he worked at CVS, he would walk down the aisles to check where items were located and then directed customers where they could find the medicine they needed. “I didn’t like it when I had to just stand there and just greet customers,” he testified. At the Star Café, Matthew testified “my role was to take orders on the phone and asking the teachers and the parents what they would like to drink. Like iced coffee, iced tea, etc. etc.” When asked why he no longer works at Marshall’s, he explained that a student from the school hit another person “… because he had a little bit of an anger issue.” He beams when he speaks about music. While he prefers rock songs from the 60′s and 70′s from bands like the Beatles, he testified that he also likes to play “Under the Boardwalk” “because my godmother likes the song by the famous Drifters because she heard that song in her school back in the day.” He testified that he performed at his school for Black History Month “…to honor the tribute to the Queen of Soul, Aretha Franklin.” Matthew takes weekly guitar lesson inside busy Atlantic Terminal mall located across the street from Barclay’s Center. He takes great pride in paying the guitar for others. While he travels to the mall with Ms. F. by car, “[s]sometimes there is an event at Barclays Center and she usually drops me by myself.” He is familiar with riding the subway and has picked up which subway line goes to the stop nearest his home. Both the teachers and Ms. F. believe that, with training and practice repetition, Matthew will be capable of travelling independently.

Matthew is independent with most activities of daily living. He vacuums and mops the floor, washes the dishes and heats prepared food. He uses the clock to keep track of time, uses a cell phone to text with his friends, keeps his pocket money secure, recognizes currency, and makes purchases with assistance. He enjoys playing chess and reading comic books.

Aside from concern about his weight, Matthew is generally healthy and sees his doctor for regular checkups with Ms. F.’s accompaniment. Matthew testified that he takes allergy medicine independently.

Matthew receives SSI benefits for which Ms. F. is his representative payee. He carries a monthly allowance of cash and makes purchases. He also is able to use a debit/ATM card under Ms. F.’s supervision. He enjoys shopping at stores such as Best Buy, Modell’s, and Stop & Shop.

Ms. F., who is Matthew’s godmother, testified that she is seeking guardianship “to make sure he’s going to be okay because I can see what the future is going to hold for him and I want some decisions regarding him for the future because I’m not going to be around forever.” Regarding the appointment of her brother as standby guardian, she further testified “I want him to be in a settled place where I can make sure that he’s going to be well taken care of.” Ms. F. further testified she wants Matthew to make his own decisions, but she wants him to make the right decisions. She further testified “I try not to influence him, I try to have him make decisions for himself. We talk everything out, you know. And it’s up to him to decide what he wants to do,” adding “Matthew is very opinionated. Matthew is a person with his own mind. You know? And I have to listen to that.” There is no doubt that Ms. F., who has known and helped raise Matthew since birth, is deeply devoted to Matthew and wholly motivated by her concern for Matthew’s well-being. The mutual affection, love, and respect between Ms. F., whom Matthew calls Betsy, and Matthew filled the room. If guardianship was warranted, Ms. F. would unquestionably be most qualified.

However, while one’s natural instinct to protect one’s loved one may be assuaged by the appointment of a guardian, it is not in the best interest of a person with a disability 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 those seeking guardianship. The appropriate legal standard is not whether the petitioner can make better decisions than Matthew; rather, it is whether Matthew has the capacity to make decisions with the support that he has. Matter of Michelle M., 52 Misc 3d 1211 (Sur Court, Kings County 2016). The record contains no evidence regarding Matthew’s present inability to make decisions with the support he receives. When asked what he thought about guardianship, Matthew stridently said, ” No. I have to make my own decisions…I want to make my own decisions. I want to make my own rights.” He further testified that Ms. F. will help him make decisions, testifying “ [w]ell, I would have to make my own decisions, but sometimes with some help.”

It is not disputed that Matthew is an individual living with cognitive and adaptive limitations. However, upon the record presented, it has not been demonstrated to the satisfaction of the court that a plenary guardianship pursuant to Article 17-A is the least restrictive means to address Matthew’s needs where the presence of supported, instead of substituted, decision-making is available for Matthew. It is evident that Matthew already seeks advice and direction from those whom he trusts before making significant decisions, and nothing in this court’s ruling precludes Matthew from continuing to do so. To allow Matthew to retain his interdependence and legal rights to make personal decisions about his own affairs, while continuing to provide him with any necessary assistance to make or communicate those decisions through his network of support, is ultimately in his best interest To the extent that Matthew may desire additional support, alternatives to guardianship such as a power of attorney, health care proxy, and/or consent to release HIPPA information, can provide targeted assistance without wholly supplanting Matthew’s right to make decisions involving his affairs.

Upon the record presented, as it has not been sufficiently demonstrated that Matthew 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.

This constitutes the Decision and Order of this Court.

Dated: December 10, 2021

Footnotes

1. The Court expresses its appreciation to Natalie Chin, Esq., and the Brooklyn Law School Disability and Civil Rights Clinic, for serving as GAL."