DISSOLVING AN ARTICLE 17-A GUARDIANSHIP

Matter of M.M., Date filed: 2022-05-23, Court: Surrogate's Court, Richmond, Judge: Surrogate Matthew J. Titone, Case Number: File No. 2010-915/D:

"M.M., through his counsel, Disability Rights New York (“DRNY”) and ARMSTRONG & LAMBERTI, PLLC (“A&L”), petitioned this court on October 13, 2020 to dissolve his guardianship established by an Order of this Court dated February 18, 2011 pursuant to Surrogate’s Court Procedure Act 1759(2), to terminate the Supplemental Needs Trust (“SNT”) held for his benefit, to discharge Donna as guardian of the property and trustee of the SNT, direct Ms. Donna to account for her tenure as guardian and trustee, and to restore petitioner’s full legal capacity. Hattie Ragone, Esq. was thereafter appointed Guardian ad Litem for petitioner under SCPA 1755. This court then issued citation to Ms. Donna, Hattie Ragone, Esq., as GAL and New York City Human Resources Administration. The citation was served; however, Ms. Donna did not appear at the hearing or respond in writing to the citation.1

Pursuant to SCPA 1754 and 1759, an evidentiary hearing was held on July 21, 2021, and testimony was elicited from petitioner’s mentor and friend, Douglas, Hattie Ragone, Esq., the court appointed Guardian Ad Litem, and from the petitioner himself. DRNY moved for a Directed Verdict, and this court reserved decision. Petitioner’s counsel was allotted time to provide a written summation, and thereafter renewed their motion in such summation.

FINDINGS OF FACT

Petitioner was born on July 10, 1995. After the death of M.M.’s mother, on January 20, 2005, Michael Edward, surrendered his rights as father of the petitioner to Geraldine, petitioner’s paternal grandmother. On September 10, 2010, Geraldine petitioned to be appointed Guardian of the Person and Property of the petitioner pursuant to SCPA Article 17-A, listing Donna, M.M.’s paternal aunt as the standby guardian.

The Article 17-A petition was supported by the Affidavits of Petitioner’s physician and psychiatrist, Dr. Adrian Logush, MD, and Dr. Mini Verter, MD, respectively.

Dr. Verter, a licensed psychiatrist, in her affirmation dated July 22, 2010 affirmed that petitioner was diagnosed with Asperger’s Disorder. She further explained that petitioner had trouble with socialization, experienced mood swings and outbursts, exhibited aggressive behavior, and lacked the understanding of grey areas and nuances. Dr. Verter found petitioner had “poor insight to his difficulties.” At the time, petitioner was fourteen (14) years old.

Attached to Dr. Verter’s affidavit was the report of petitioner’s psychiatric interview on June 21, 2010, at the Children’s Community Mental Health Center. Petitioner was seen with his grandmother, with whom he was then residing. During the interview, it was noted that petitioner was not “hyperactive nor impulsive.” Petitioner exhibited no outbursts or tardive dyskinesia. He was not suicidal nor homicidal and was fully oriented. Petitioner was scheduled to move to his aunt’s home in Connecticut the following week and begin high school there.

Dr. Logush, a licensed neurologist, affirmed that petitioner was a 14-year-old young man with a history of “neglect, physical & sexual abuse” by his mother. According to Dr. Logush, M.M. was exposed to illicit drugs in utero and removed from his mother’s care. He found petitioner to be an “oppositional, argumentative, aloof boy with fleeting eye contact and stuttering who was socially immature & unrealistic.”

A hearing was held on the Article 17-A petition, and such petition was granted. On August 18, 2011, a petition to create a supplemental needs trust (“SNT”) was also granted. The initial SNT deposit was $300,000, the proceeds coming from a wrongful death lawsuit from the estate of petitioner’s grandfather.

In August of 2011, Ms. Geraldine petitioned to renounce as Article 17-A guardian. Ms. Donna was then appointed as petitioner’s guardian.

Petitioner testified at the evidentiary hearing, that Ms. Donna did not approve of his homosexuality. After less than six months as guardian, Ms. Donna enrolled petitioner in the Chamberlain School, a residential school in Massachusetts. Ms. Donna used approximately twothirds of petitioner’s SNT funds to pay for the school tuition. Petitioner resided at the Chamberlain School year-round until he graduated at the age of eighteen. Notably, petitioner and Ms. Donna have not communicated in any fashion since he first moved to the Chamberlain School.

On December 4, 2014, Ms. Donna sent a letter to this Court resigning as guardian. On December 23, 2014, this court permitted the resignation of the guardian of the person only. Ms. Donna remained petitioner’s guardian of the property and trustee of his SNT. She was awarded commissions for the years 2012, 2013, and 2014, yet not for the year 2016, since this court found the commissions were “not justified.”

In 2014, at the age of 19, M.M. left the Chamberlain School. He made friends and became involved in the LGBTQ community. M.M. worked in different restaurants and coffee shops. At one point, M.M. did marry, although his spouse is no longer in his life.2

Petitioner testified that he has continued to live on his own and manage his personal affairs since Ms. Donna was relieved as guardian. He obtained a driver’s license and started his own moving business. He designed business cards to advertise his services and utilized social media platforms and word of mouth to advertise. He leases trucks and hires laborers as needed. He travels independently across state lines for moving jobs, but primarily resides and works in Pennsylvania. Additionally, he manages his independent living such as securing health insurance, paying his cell phone, buying and preparing his own food, clothing, and other essentials. Petitioner also maintains his financial independence without relying on any form of public benefits, supportive assistance, or Medicaid. Petitioner has a network of adults that serve as mentors such as his friend and mentor Douglas, who testified at the July 21, 2021 hearing.

SCPA ARTICLE 17-A AND THE PROGRESSION OF THE DIAGNOSIS OF ASPERGER’S SYNDROME

SCPA Article 17-A was “[o]riginally enacted in 1969 [and] was limited to persons who were mentally retarded, and its implementation coincided with New York State’s policy of deinstitutionalizing thousands of individuals who had spent some or most of their lives in mental institutions. Since many of the newly discharged individuals had functional limitations that impaired their self-management, Article 17-A was an attempt to fill a void and provide a safety net for at least some of these individuals.”3

On January 1, 1990, the statute was repealed and replaced to afford the Surrogate’s Court jurisdiction over developmentally disabled and intellectually disabled adults. The article permitted jurisdiction over such persons provided their disability was certified through the age of 22. The Article 17-A petition could be filed and determined at any age, however.

Article 17-A was intended to streamline a complex guardianship process to allow parents to continue to care for their intellectually or developmentally disabled adults.4

Pursuant to SCPA 1759, the duration of the guardianship continues through the life of such person, “or until terminated by the court.” Once an individual is adjudged to need a guardianship, the court is not required at any point to review that decision. SCPA 1750-b, 1759.

Article 17-A appears to limit the court to a plenary guardianship. However, recent caselaw has interpreted the statute to allow certain tailoring of the relief. Some courts have permitted the guardian to make gifts on behalf of the ward (In re Guardianship of Joyce G.S., 30 Misc. 3d 765, 766 (Sur. 2010)); termination of the guardianship of the person while maintaining the guardianship of the property, (Matter of Robert C.B., 68 Misc. 3d 704 (N.Y. Sur. 2020)), while some have terminated the guardianship entirely (Matter of Dameris L., 38 Misc. 3d 570 (Surr. Ct. New York Co. 2012)); c.f. In re Guardianship of John J.H., 27 Misc. 3d 705, 706 (Sur. 2010).

While some modifications to the implementation of Article 17-A guardianships have occurred both in the legislature and in the Surrogate’s Courts, the diagnoses of the intended individuals have evolved, as have the treatments and therapies. Post-1990 attempts to further enhance and update the statutory scheme have failed, and the statute remains in the status of a society some thirty years old. About the time that M.M. was born.

For instance, M.M.’s diagnosis — Asperger’s Syndrome, sometimes referred to as Asperger’s Disorder, was initially defined by Hans Asperger, a Viennese pediatrician in the 1944.5

It was added to the American Psychiatrists Associations Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) in 1994 as a distinct, separate form of autism with language difficulties as the prevalent feature.6

In 2013, the DSM-5 removed the diagnoses of Autistic and Asperger’s Disorder and other pervasive developmental disorders and placed them under the umbrella of Autism Spectrum Disorder (“ASD”).7 This umbrella term recognized that no two diagnoses were identical, the disorder could present with one or many characteristics, and the functional capability of each person varied greatly.8 Nonetheless, the umbrella term was favored since the prevalent characteristic of all the disorders within was “impaired social interaction and communication, and restricted, repetitive behaviors and interests.”9

Field trials showed that the DSM-5 umbrella diagnosis of ASD did eliminate some 75 percent of those previously diagnosed of patients previously diagnosed with Asperger’s Syndrome.10 Thus, it was likely that an individual diagnosed with Asperger’s Syndrome in 1995, may not be diagnosed with ASD in 2014.

Thus, in the eighty years since Asperger’s Syndrome was named, eliminated and some portions placed under ASD, it has morphed into an understanding of a group of characteristics with relevant treatments and therapies to address its characteristics and is not a blanket diagnosis to which there is no recovery.

As such, although the statutorily intended duration of an Article 17-A guardianship is a lifetime, it is entirely possible that termination of such a guardianship could be warranted, based on the person, functional capacity or due to an improvement in their functional capacity.

It is axiomatic then that an Article 17-A guardianship must be dissolved when the “proponent fails to establish that the alleged incapacitated person has an intellectual or developmental disability that renders him uncapable of managing his person and/or property.” 11 There is no statutory framework which guides the dissolution of a guardianship as its intent is not to result in dissolution.

There is some guidance found in SCPA 1755, which permits modification of a guardianship order by employing an “interests of justice” standard. The court retains jurisdiction over the ward under SCPA 1758 to “adjudicate such steps and proceedings […] as may be deemed necessary or proper for the welfare” of the ward. This determination is at a minimum a “best interests” analysis. The term, “however, is an ‘amorphous term’, a determination of which is left to the discretion and judgment of the Surrogate.”12

“It is the official policy of New York State to promote and to facilitate the ‘independence, inclusion, individuality and productivity’ of persons with intellectual and developmental disabilities” pursuant to MHL §13.01.13 However, as noted supra, this policy has not translated into an enhanced version of the Article 17-A framework.

In Matter of Robert C. B., the court, when faced with a petition to terminate a guardianship of a ward diagnosed with Asperger’s Syndrome, explained that Article 17-A guardianship is largely a diagnosis-driven finding and declared that the proper focus “is one’s functional limitations and whether or not an individual will suffer harm as a result of these functional limitations.” 14 Employing such an analysis, the court found that the ward had a developmental disability that impaired his functional capacity to manage his property, yet not his daily personal decisions. Although the ward could understand his finances on a rudimentary level, he lacked the capacity to budget or manage his money. Thus, the guardianship of the property was maintained while the guardianship of the person was terminated.

In order for a guardianship to be dissolved or terminated, the factors which supported the creation of the guardianship should no longer exist. Thus, such analysis of a petition requires an analysis of the best interests of the ward, the least restrictive means to achieve the best interests, and the court’s jurisdiction if those earlier considerations fail.

The best interests analysis as applied in an Article 17-A hearing can support a finding at a given period in time that the ward lacks capacity to manage their personal and property affairs. The difficulty with such an analysis at a single moment in time is the assumption that an individual is unable to manage their diagnosis. Once a 17-A determination is made, typically at or around the age of eighteen, apart from petitions similar to that herein, there is no discernible reason for the Surrogate to re-examine the best interests standard.

The standard does not allow for maturity, supportive-decision making, efficacy of targeted treatments and therapies, among other factors. The standard restricts the individual to that particular age, and it is quite possible that those means are not the least restrictive at a later age. Essentially, what may be good today, may be totally inappropriate tomorrow.

Moreover, substantive due process is a right guaranteed under the 14th amendment of the United States Constitution requiring that the State shall not “deprive any person of life, liberty, or property, without due process of law.”15 Substantive due process is “understood to include a requirement that when the state interferes with an individual’s liberty on the basis of its police power, it must employ the least restrictive means available to achieve its objective of protecting the individual and the community.”16

Applying the least restrictive means is recognized by New York Courts as a constitutional imperative17 and as codified in N.Y. Mental Hygiene §81.01, the legal remedy of guardianship should be the last resort as it deprives the person of power and control over their life in violation of due process.18

The specific absence of the least restrictive language in the statute does not eliminate its constitutional imperative. Liberty is a fundamental right which this court can not infringe upon lightly.

In Matter of Robert C.B., it was noted that functional capacity was a necessary factor in determining the least restrictive means.19 Functional capacity of the individual taken into consideration with the individual’s available resources including their community, health care, power of attorney, advance directives, and the like, can assist in the least restrictive means determination.

Once functional capacity has been found in an individual, this court no longer has subject matter jurisdiction over the guardianship under SCPA §1758.20

CONCLUSION

Upon review of the papers submitted in support of this petition and the hearing testimony, the guardianship of the person and property must be dissolved, and the Supplemental Needs Trust terminated. Article 17-A Guardianship was awarded to M.M.’s grandmother when M.M. was 15 years old. He was a high school age student with a diagnosis of Asperger’s Syndrome, and the characteristics of a child whose parents failed to nurture him. He was noted to have mood swings, low frustration tolerance and outbursts.

M.M. was born during the advent of the DSM-IV identification of Asperger’s Syndrome. At that moment in time, it was the opinion of the Surrogate pursuant to the supporting medical documentation that it was in M.M’s best interests to have a guardian. He was a 15-year-old young man, who needed assistance navigating his teenage years, his identity, his diagnosis, and his ever-changing family environment. At that time and for a period thereafter, the guardianship may well have been the least restrictive means available to this court to assist M.M. Throughout M.M.’s life and even at present, the diagnosis has changed, as has the understanding of the interventions which would enable M.M. to manage his affairs.

For instance, in the Millennium Cohort Study (MCS), 19,517 adolescents born between 2000 and 2002 with and without autism, were assessed at ages 11 and 14 to examine their decision-making skills and the association with their psychological well-being.21 The study found “comparable quality of decision-making to that of their peers at both ages.”22 They found that effective therapies which consider this characteristic allowed the adolescent to transition into adulthood and promoted their mental health.23

Similarly in a small pilot study of college students with ASD, the researchers sought to examine how “traditional decision-making tools and tasks can be used to uncover strengths and weaknesses within a growing population of young adults with autism.”24 Of particular note, the researchers found that in the ASD cohort, complementing the strengths of ASD adults with the relevant tools to overcome their weaknesses allowed the adults on the spectrum to improve their decision-making and the relative outcome of their decisions.25 The researchers further identified that there was a “dearth” of decision-making research and its relation to an ASD adult’s employment or success.26 Essentially then, further research and the implementation of tailored intervention and therapeutic approaches to this diverse group of adults could lead to favorable outcomes in their decision-making capability.27

Although M.M. did not have the benefit of these specific therapies, he crafted them on his own. According to the testimony elicited at the hearing, he had the benefit of a supportive community to assist his decision-making. After his departure from the Chamberlain School, M.M. moved on into life on his own. He had no contact with his appointed guardian, whom the Surrogate had previously decreed he required, and had no choice but to find his way through life alone. M.M. may have made some mistakes, but still he managed (“his life exceptionally” judges’ comments).

The evidence further showed he made new friends, established a life in Pennsylvania and started his own business. He found support in people like Douglas, a mentor who supports him both personally and professionally. He decided he needed to work, first at small businesses, then at his own business, designing his own business cards, leasing trucks, and hiring laborers, and travels across state lines for moving jobs. He purchased health insurance, paid his own bills, and provides for his own essentials.

Basically, M.M. found and made his own way.

At this moment in time, unlike 2011, a guardianship is not in M.M.’s best interest and not the least restrictive means. Eleven years ago, M.M. was diagnosed with a syndrome, which, pursuant to the DSM, no longer exists today. Asperger’s Syndrome as a diagnosis in and of itself, is not conclusive evidence to support an Article 17-A guardianship. A statement proven by M.M.’s growth.

Eleven years ago, M.M. was dealing with changes in his support structure which could have caused the underlying symptoms he was experiencing, which M.M. has shown to manage today. Eleven years ago, M.M. was a teenager who needed a permanent guardian to help him, while now he makes his own personal and property decisions.

M.M. will make good and possibly not as good decisions throughout his life like every other adult. Those are his decisions to make, and he has demonstrated the capability to make them.

It is therefore, decreed, ordered, and adjudged that the guardianship of the person and property is dissolved, and the Supplemental Needs Trust terminated.

This decision shall constitute the Order of the Court.

Dated: May 23, 2022

Footnotes

1. Further, in response to the Court's request for an updated accounting, Donna submitted a handwritten note dated April 25, 2022, with her SNT accounting for 2021 requesting to be relieved as property guardian for petitioner.

2. The marriage occurred while M.M. was under a guardianship pursuant to SCPA Article 17-A, and as such, such transaction is voidable by M.M.. M.M. has not re-affirmed such marriage.

3. It was not until 2016, that the title of the article removed "Mentally Retarded" and replaced it with "Intellectually Disabled." Vincent J. Russo, Marvin Rachlin, N.Y. Elder Law Practice §9:1 [2021 ed.]

4. Margaret Valentine Turano, 2011 Practice Commentaries, McKinney's Cons Laws of NY, SCPA 1750. The article provided a cost-effective means for guardianship of this population that did not require the extended process under MHL Article 81.

5. Coincidentally, another Viennese physician, Kanner, also described the condition in 1943, however, Asperger was credited with the diagnosis. Barahona-Correa, JB, Filipe CN A Concise History of Asperger Syndrome: The Short Reign of a Troublesome Diagnosis. Front Psychol. 2016;6:2024. Published 2016 Jan 25 doi:10.3339/fpysg.2015.02024

6. Id.

7. Id.

8. Id.

9 Id.

10. Frazier T.W., Youngstrom E. A. Speer L. Embacher R., Law P., Constantino J. et. Al. (2012) Validation of Proposed DSM-5 Criteria for autism spectrum disorder. J. AM. Acad. Child Adolesc. Psychiatry 51 28-40.

11. In the Matter of the Guardianship of Dameris L., Pursuant to SCPA Article 17-A, 956 N.Y.S.2d 848 (Sur. 2012).

12. Matter of Joshua J.K., 71 Misc.3d 843, 846 (Surr. Ct Westchester Co. 2021); see also Matter of Robert C.B. at 716, 125 N.Y.S.3d 253 [citing Matter of Chaim A.K., 26 Misc. 3d 837, 845 [Sur. Ct., N.Y. County, 2009].

13. Matter of Robert C.B. at 709.

14. Id. At 258, 273.

15. U.S. Const. amend. XIV

16. In re Dameris L., 956 N.Y.S.2d 848 [Sur. NY 2012]; see also O'Connor v. Donaldson 422 U.S. 563 (1975).

17. Kesselbrenner v. Anonymous 33 N.Y.2d 161, 164 (1973)

18. Id. At 164.

19. See also Matter of Michelle M., supra.

20. In re Dameris L. at 854. The Dameris Court further held even if the Court had jurisdiction, the appointment of guardianship was no longer warranted, and the guardianship appointment was not the least restrictive alternative.

21. Hosozawa M, Mandy W, Cable N, Flouri E. The Role of Decision-Making in Psychological Wellbeing and Risky Behaviours in Autistic Adolescents Without ADHD: Longitudinal Evidence from the UK Millennium Cohort Study. J Autism Dev Disord. 2021 Sep;51(9):3212-3223. doi: 10.1007/s10803-020-04783-y. Epub 2020 Nov 16. PMID: 33196916; PMCID: PMC8349343.

22. Id.

23. Id.

24. Levin Irwin P., Gaeth Gary J., Foley-Nicpon Megan, Yegorova Vitaliya, Cederberg Charles, Yan Haoyang, Extending decision making competence to special populations: a pilot study of persons on the autism spectrum, Frontiers in Psychology Vol. 6, 2015, https://www.frontiersin.org/article/ 10.3389/fpsyg.2015.00539, doi 10.3389/fpsyg.2015.00539.

25. Id.

26. Id.

27. Id."