ARTICLE 17-A GUARDIANSHIP NO LONGER NECESSARY

And note that the same reasoning will also apply when one i seeking an Article 17-A Guardianship as noted in an earlier post:  A Lawyer's Blog - Jon Michael Probstein, Esq.: FOR ADULTS WITH INTELLECTUAL DISABILITIES, A GUARDIAN IS NOT ALWAYS NEEDED (jmpattorney.blogspot.com)

MATTER OF RICHARD SH, 2022 NY Slip Op 22328 - NY: Surrogate's Court, Westchester 2022:

"SCPA article 17-A guardianship is plenary, resulting in a total deprivation of an individual's liberty (see SCPA §§1750, 1750-a, 1750-b; see also Matter of Michael J.N., 58 Misc 3d 1204[A], 2017 NY Slip Op 51925[U] [Sur Ct, Erie County 2017]; Matter of Caitlin, NYLJ, April 29, 2017 at 31 [Sur Ct, Kings County 2017]).^[1]

The standard for whether a decree of guardianship should issue in the first instance for an intellectually and/or a developmentally disabled person is set forth respectively in SCPA §§1750 and 1750-a. In accordance with the statutory provisions, a determination must be made by the court that the individual has an "impaired ability to understand and appreciate the nature and consequences of decisions which result in such person being incapable of managing himself and/or his affairs by reason of intellectual disability [and/or developmental disability] and that such condition is permanent in nature or likely to continue indefinitely."

SCPA §1759 states that a person for whom an article 17-A guardianship has been established may petition the court to have the guardianship dissolved. To have guardianship letters revoked, an article 17-A ward, such as Reed, bears the burden of establishing that the guardianship is not in his best interest, with the determination of what is in his best interest committed to the court's discretion (see SCPA §1751; SCPA §1750-a; see also Matter of Michael J.N., 58 Misc 3d 1204).

In determining whether the termination of a guardianship is in the best interest of the individual, courts have considered whether it is the least restrictive means to preserve and protect the rights of the person (see Matter of Michael J.N., 58 Misc 3d 1204).^[2]

There are only a few reported cases in which a decree of §17-A guardianship has been revoked and an individual restored to his full rights under the law. For example, in Matter of Stephen S.C., 63 Misc 3d 725 [Sur Ct, Westchester County 2019]), this court found that SPCA §17-A guardians were no longer warranted for an intellectually and developmentally disabled man because less restrictive means for support were appropriate and available. The record demonstrated that Stephen had gained greater independence since moving to a group home, demonstrated in the record by his ability to obtain and sustain employment, manage a bank account, maintain a social life, travel independently, take care of his hygiene, and engage with a supported decision-making network.

Even more recently in Matter of Robert C.B. (68 Misc 3d 704 [Sur Ct, Dutchess County 2019], reversed in part, 207 AD2d 464 [2d Dept 2022]), the court terminated the SCPA §17-A of the guardianship over the person of Robert, a 23-year-old man with Asperger's Syndrome, finding that it was in his best interest to restore his right to manage his personal affairs without the oversight or control of a guardian of the person. There, the record reflected, among other things, that: (1) Robert graduated from high school with a Regents diploma; (2) he successfully transitioned to independent living; (3) he held down two jobs where he operated with minimal supervision; (4) he managed his personal schedule without assistance; (5) he did his own shopping and meal preparation; and (6) he managed his medical appointments and medication The court, in its discretion, based on the record before it, denied that part of the petition which requested termination of the property guardianship.

However, the order was appealed, and in Matter of Robert C.B. (207 AD3d 464 [2d Dept 2022]), the Second Department found that the Surrogate's Court erred in not granting that part of the application which requested termination of Robert's property guardianship. In doing so, the court wrote:

The petitioner established that he did not have a disability as defined in SCPA article 17-A, as his evidence showed that his ability to "understand and appreciate the nature and consequences of decisions" was not impaired (citations omitted).

* * *

As to managing his finances, at the time of his testimony, his bills were all up to date. . . . [He] demonstrated that he understood and was able to manage his own finances despite having made a poor decision in purchasing a car with an inflated purchase price and exorbitantly high interest rate.

* * *

Rather than showing that the petitioner lacked an understanding of consequences, this evidence showed that he evaluated his circumstances, researched the options available to him under those circumstances, learned through experience that he had made a poor financial decision, and took steps to minimize the negative consequences arising from that decision.

(Matter of Robert C.B., 207 AD3d at 466-67).

In Matter of Dameris L. (38 Misc 3d 570 [Sur Ct, NY County 2012]), the husband/co-guardian of a §17-A ward petitioned the court to revoke the guardianship letters issued to him and to the ward's mother. Because the record before it reflected that Dameris L. was able to make her own decisions (albeit sometimes with the assistance of family and community support), the court terminated the guardianship and restored her legal rights.

In doing so, Surrogate Glen wrote that "New York courts have embraced the principle of least restrictive alternatives" and that the

legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same, time permits them to exercise the independence and self-determination of which they are capable.

(Matter of Dameris L., 38 Misc 3d at 577 [citations omitted]). The court also noted that the "legal remedy of guardianship should be the last resort for addressing an individual's needs because it deprives the person of so much power and control over his or her life" (id., [citations omitted]).

In Matter of Michael J.N. (58 Misc 3d 1204, 2017 NY Slip Op 51925[U]), the Surrogate's Court found that vacatur of the decree of guardianship and revocation of the letters issued to Michael's parents were in Michael's best interest. In vacating the decree, the court relied on the record before it, which demonstrated that Michael's adaptive skills, as supported by his placement in a group home, enabled him to make health care decisions and to perform his daily living tasks without a guardian. The court noted that an individual's best interest must include an assessment of his functional capacity and what he can or cannot do in managing daily affairs (see also Matter of Gulielmo (NYLJ, Nov. 13, 2006 at 23, col.1 [Sur Ct, Suffolk County] [article 17-A guardianship dissolved where the record demonstrated that the individual currently was capable of conducting all activities of daily living]).

Cases where courts have refused to appoint an article 17-A guardian in the first instance also are instructive on this issue. In Matter of Caitlin (NYLJ, April 13, 2017 at 31), the court, in denying the petition for SCPA 17-A guardianship, stated that, where less restrictive alternatives were available, such as a durable power of attorney, a health care proxy, and community support services, it was not in Caitlin's best interest to have a guardian appointed for her and to have her "decision-making authority supplanted, regardless of good intentions and a desire by [her] family to protect [her]." In Matter of Hytham (52 Misc 3d 1211[A], 2016 NY Slip Op 5113[U] [Sur Ct, Kings County]), a petition for guardianship was dismissed where the individual, although intellectually in the borderline delayed range, was able to independently handle, among other things, money, purchases, grooming and cooking.

The record before this court demonstrates that Reed has made extraordinary progress since 2015. He has not only graduated from an accredited college but he is obtaining a master's degree from a renowned university, and he is excelling there. Reed has been able to obtain and sustain employment, manage his daily affairs, and engage with a supported decision-making network. Since Reed has made these remarkable strides and because he has a system of supported decision making in place (and knows when he should rely upon it), lesser restrictive alternatives are available to plenary guardianship.

Based on the substantial record before this court which demonstrates that Reed has successfully met his burden that the guardianship is no longer in his best interests, the petition is granted, and the decree dated May 3, 2016, is vacated; the SCPA § 17-A guardianship of Reed is terminated; the letters of guardianship issued to Richard and Elisabeth are revoked; and Reed's full legal capacity is restored.

Richard, Elisabeth and Reed now should proceed to put the health care proxy and the power of attorney in place, and Richard and Elisabeth are directed to account for their proceedings as guardian of Reed's property in an expeditious manner."