As published in the NYSBA Elder and Special Needs Law Journal | 2022 | Vol. 32 | No. 2
Many parents of children with developmental disabilities[i] or intellectual disabilities[ii] spend years working to ensure that their children receive the best resources and services available to them. Their tireless advocacy likely began in their earliest days as parents, seeking out early intervention services through the Committee on Special Education (CPSE) evaluation process, arguing with school officials regarding increased services their children should receive, fighting and appealing insurance company denials for outside therapies that could benefit their children, and navigating the complex and daunting landscape of applying for and managing services through OPWDD, SSI and Medicaid. By the time their children reach the legal age of adulthood at 18 years old, many parents are understandably battle-weary and emotionally exhausted – and, of course, they understand that their children’s profound needs continue well beyond that point.
A saving grace for parents who often feel they’ve had to fight and struggle for every service, benefit and therapy their child has received is the SCPA Article 17-A guardianship. This Surrogate’s Court guardianship offers a long-awaited respite from the challenges these parents have experienced in addressing their children’s needs and ensuring their well-being. Article 17-A guardianship permits parents of developmentally disabled or intellectually disabled individuals, once they reach the legal age of adulthood, to essentially carry on the very same activities they always have in advocating for and protecting their children, through a comparatively straight-forward and painless process. Moreover, Article 17-A provides these parents with the legal authority to make decisions for their adult children without constant monitoring and intrusion by the court system, thereby minimizing the added stress and complication that other legal mechanisms designed to benefit disabled individuals (such as Article 81 guardianships) often inadvertently have on their family members and caregivers.
Legislative History of SCPA Article 17-A
Until as recently as the 1960’s, it was widely assumed that children with “mental retardation” (as was the term at that time) would continue to be viewed as “children” under the law, even once they otherwise reached adulthood, and that the rights, abilities and powers parents previously had over their children as minors would remain in effect indefinitely.[iii] For myriad reasons, however, this faulty assumption would not provide these parent caregivers with the ability or legal authority to address a number of legal and practical matters that could impact intellectually disabled or developmentally disabled individuals beyond their childhood.
In the 1960’s, advocates, most of whom were parents of developmentally disabled or intellectually disabled children, began pushing for the creation of a mechanism for legal guardianship of children who were “mentally retarded” after they reached the age of legal adulthood. As a legal solution to this issue was clearly needed, SCPA Article 17-A was enacted in 1969 as an inexpensive means for parents of “mentally retarded” children to continue making decisions after their children turned eighteen. [iv] In 1989, the statute was revised to expand the application of Article 17-A guardianship to individuals with developmental disabilities and traumatic brain injuries as well.[v] Since children with developmental disability and intellectual disability are deemed to have lacked capacity from birth, Article 17-A is almost purely diagnosis-driven, based on two doctors certifying the permanence of the individual’s intellectual or developmental disability.
Plenary Powers Granted Under Article 17-A
Designed to serve the intellectually disabled or developmentally disabled individual’s needs throughout the course of their adult lifetime, the Article 17-A statute was premised upon the consensus that “mental retardation”, and, later developmental disability and traumatic brain injury, are permanent conditions, with no actual likelihood of improvement in terms of mental capacity. Moreover, the legislature recognized that parents caring for a developmentally or intellectually disabled adult child would need to continue to exercise the same legal authority they previously held over their child when they were a minor for the rest of his or her life in order to ensure that all of their needs were met. The statute essentially provides continuation of the parent’s legal authority over his or her child, beyond the age of legal adulthood, when such legal authority (or “parental rights”) would ordinarily cease to exist.
For this reason, Article 17-A was intended to serve as a plenary guardianship, serving as a comprehensive legal solution that provides broad powers to parents in order to enable them to address all of their children’s needs on an ongoing basis. However, further legal authority concerning the statute supports the view that the statute does allow for a “tailoring” of the Guardian’s powers, determining that the authority to tailor a guardian’s powers are implicit within the provisions of 1758 of the SCPA in In re Yvette A., 27 Misc. 3d 950 (N.Y. Sur. Ct. N.Y. Cty. 2010) (“the Court shall have and retain general jurisdiction over the mentally retarded…person for whom such guardian shall have been appointed, to take of its own motion or to entertain and adjudicate such steps and proceedings relating to such guardian,…as may be deemed necessary and proper for the welfare of such mentally retarded…person” [citing 1758 of the Surrogates Court Procedure Act]). There, Surrogate Webber derived support for his interpretation of the statute – that the Court does have the authority to tailor the powers of a 17-A guardian – from the legislative history of the repealed 1969 version of the 17-A Statute.[vi] Article 17-A, therefore, does allow the Court to retain jurisdiction, modify the guardianship, tailor powers to the needs of the ward, and even oversee the guardian’s activities, whenever necessary throughout the lifetime of the 17-A guardianship. Further, the 1989 expansion of the statute specifically provides for “modifications” or “tailoring” of the guardianship.[vii]
When to apply this “tailoring” of the guardianship, however, requires a more complex analysis, as the Article 17-A statute calls for tailoring when a person had capacity previously, and currently lacks capacity. However, Article 17-A is most frequently invoked when an individual is deemed to have never had capacity, such as in the case of intellectually disabled and developmentally disabled individuals, the majority of whom are deemed to have lacked capacity from birth. It appears, then, that the circumstances giving rise to the Court’s ability to “tailor” the otherwise plenary guardianship are not always, or even often, present in Article 17-A guardianship cases.
Moreover, many advocates of individuals with intellectual and developmental disabilities argue that the right to dignity and self-determination and access to supported decision-making are stripped away by the plenary nature of Article 17-A. While Article 17-A, in its inception, relied upon the assumption that the ward never had capacity, and will never have capacity,[viii] advocates of self-determination and supported decision-making point to the fact that a much greater understanding of social, emotional and cognitive abilities of people with intellectual disabilities and developmental disabilities have been gained in the last 50 years since the Article 17-A statute was first enacted. These critics of Article 17-A, and some guardians appointed pursuant to the statute, ignore the fact that these individuals are adults, and should be treated as such, affording these individuals the opportunity of self-determination and independence to the greatest extent possible.
Standby Guardians Under SCPA Article 17-A
When 17-A was enacted in 1969, the life expectancy of an intellectually or developmentally disabled person was relatively short (less than age twenty five years), and it was anticipated that parents would outlive their child.[ix] In light of this diminished life expectancy of the ward, while the statute provided for the appointment of a non-parental “standby guardian” who could step into this role in the event of the parental Guardian’s death, this was not seen as a particularly likely scenario. As such, there was little to no thought or analysis given to whether non-parental “Standby Guardians” seeking to be confirmed by the Court as 17-A Guardians, upon the death of the Guardian, required a more rigorous vetting than original (parental) 17-A Guardians, or whether different reporting standards should be imposed on Standby Guardians.
Because overall life expectancy has increased so significantly since the creation of Article 17-A guardianships, it is not uncommon to see petitioners who were Standby Guardians come before the Court to seek confirmation of their appointment as Guardian, upon the death of the parental Guardian, who are siblings, more remote family members or even non-blood related individuals of the ward.[x] This has perhaps altered the way the legislature envisioned the Article 17-A guardianship landscape evolving, but given the legislative intent behind the enactment of Article 17-A to provide a streamlined, inexpensive path to guardianship for individuals with lifelong intellectual and developmental disabilities, the extension of this appointment to more remote family members would seem to further that purpose. A lingering question, however, lies in whether the legislature may have imposed more stringent monitoring of the guardian’s activities, or set forth clearer guidelines for the guardian’s conduct, in a manner more akin to Mental Hygiene Law Article 81.
A Lack of Bureaucratic Oversight and Monitoring in SCPA Article 17-A Guardianships
Perhaps due to the great deference and recognition that SCPA 17-A affords to parent caregivers who may be deemed to have “proven” their devotion to their intellectually disabled or developmentally disabled children by caring for them through their lives and through adulthood, SCPA 17-A does not set forth specific criteria concerning standards of a guardian’s conduct.[xi] Though the statute does provide the Court the ability to “modify” and “tailor” the guardianship as it deems necessary, as set forth above, SCPA Article 17-A requires no continuous oversight of guardians once they have been appointed, unless there is property to be managed by the guardian.[xii] This lack of oversight can be a double-edged sword.
For parents who have spent many years interfacing with governmental agencies concerning their child’s needs, it is a great relief, once appointed as a 17-A guardian, that they will not be required to comply with extensive monitoring and accounting requirements regarding their activities, nor will they need a bureaucratic entity to criticize or analyze their decisions and the extent of their child’s needs. This lack of oversight and monitoring allows parent caregivers who are Article 17-A guardians to feel a sense of freedom in their decision-making and respect for their knowledge of their child’s (and ward’s) needs, developed over their many years of caring and advocating for their child. Many parental supporters of the 17-A guardianship statute, in its present form, argue that an increase in monitoring or oversight would result in the court system’s scrutiny of something that parents believe judges and court-appointees likely have very little understanding of, and would be viewed as an intrusive and pointless endeavor. Many parents who have devoted their financial resources to addressing their intellectually disabled or developmentally disabled child’s needs over the years appreciate the more affordable process of the Article 17-A guardianship, and could not otherwise afford to pursue a guardianship under Article 81 of the Mental Hygiene Law, or to comply with its stringent personal and financial accounting and reporting requirements every year in perpetuity.
Others, however, criticize the “unchecked” power of Article 17-A guardians that occurs as a result of the lack of regular monitoring and oversight of the conduct of guardians. The absence of oversight of Article 17-A guardians creates an opportunity for guardians to abuse their authority, and it can be difficult for others concerned with the welfare of the individual (such as a divorced parent or another close family member who is not the guardian) to intervene and address their concerns with the court if they suspect such abuse.
Article 81 of the Mental Hygiene Law as an Alternative to SCPA 17-A Guardianship
Despite the fact that the ability to “tailor” the guardianship exists in some form, under SCPA Article 17-A, due to the plenary nature of the guardianship overall, when seeking the appointment of a guardian with powers more limited and narrowly tailored to the needs of the individual in need of a guardian, a guardianship under Article 81 of the Mental Hygiene Law (“MHL”) may be preferred in these instances. This is because MHL Article 81 is designed to constitute the “least restrictive means of intervention” for an incapacitated individual, and the powers granted to the guardian are limited to only those powers “necessary to provide for personal needs and/or property management of the incapacitated person”[xiii].
The additional oversight and monitoring of an Article 81 Guardian[xiv] would also ensure that the guardian is only exercising the specific authority granted to them by the Court. Though inconvenient for parental Article 17-A guardians to have to wade into a bureaucratic process designed to second-guess the actions of a guardian – something many parents of intellectually disabled or developmentally disabled individuals might resent – the annual accounting and monitoring process in the MHL Article 81 context serves to protect the individual from abuse, overreach or other harmful conduct by the guardian, and seeks to protect the interests of the individual above all other considerations. There are clear advantages to such an approach.
Moreover, “[o]ne of the many criticisms of article 17-A is its inability to distinguish functional capacity along the continuum of ability that characterizes persons with mental retardation and developmental disabilities.”[xv] Guardianship under MHL Article 81 will almost always recognize, and prioritize, the individual abilities, self-determination, and independence of a ward to a greater extent than a guardianship governed by SCPA Article 17-A would. Accordingly, if an individual with intellectual disability or developmental disability is “higher functioning,” such that the individual has demonstrated the capacity to make some health care and financial decisions independently, an Article 81 proceeding under the Mental Hygiene Law may be the more practical guardianship.
If it is clear that an individual can provide informed consent, or has the ability to understand, or at one time had the ability to understand, and can express his or her wishes, then Mental Hygiene Law Article 81 may be the more appropriate avenue for guardianship. This is because, in MHL Article 81 guardianships, “substituted judgment” of the Guardian for the ward is permitted, allowing the Guardian to make decisions based upon what the Guardian believes the ward would have made, if the ward had the capacity to do so. By contrast, in Article 17-A guardianships, whether the court will allow the guardian to substitute his or her own judgment in place of the ward is a matter left to the interpretation of the Surrogate, as courts have been split on whether “substituted judgment” is available under Article 17-A.[xvi] In In Re John J.H., 27 Misc.3d 705, 896 N.Y.S.2d 662 (N.Y. Sur. Ct. N.Y. Cty. 2010), for example, the court held that substituted judgment is not available under Article 17-A, in that it is a statute based upon the presumption that the ward never had the capacity to make decisions for herself, and would therefore lack the requisite “judgment” (in the past) to allow the Guardian to substitute his or her own judgment as to what the individual “would have done” if they had the capacity to do so. Therefore, under this interpretation, the Article 17-A guardian is limited to making decisions that the guardian deems are in the best interests of the ward.[xvii] By contrast, in In re Joyce G.S., 30 Misc.3d 765, 766, 913 N.Y.S.2d 910, 911 (N.Y. Sur. Ct. Bronx Cty. 2010), the Surrogate declined to follow this line of reasoning, finding instead that “the equitable common law doctrine of substituted judgment” can be applied in Article 17-A guardianships, pointing to the In re John J.H. decision as an outlier, which is unsupported by law.[xviii] As such, the answer to how courts will interpret the Article 17-A statute as it relates to substituted judgment remains unclear.
Ultimately, the determination of whether a guardianship pursuant to SCPA Article 17-A or MHL Article 81 is the appropriate choice is based on a number of factors, all of which must be analyzed on a case-by-case basis. Among the considerations are the wishes of the proposed Guardian concerning the reporting and monitoring requirements of an Article 81 guardianship, family dynamics (such as divorce or discord between the individual’s parents or other family members) which may make the SCPA Article 17-A guardianship less feasible, whether the intellectually disabled or developmentally disabled individual is “higher functioning” or “lower functioning” with respect to his or her abilities, and, most importantly, whether the needs of the individual, and his or her ability to exercise independence and self-determination, can be better served by the plenary nature of an Article 17-A guardianship or by the more narrowly tailored approach of the MHL Article 81 guardianship.
[i] A “developmental disability” is defined as “a condition that results from an impairment in physical, learning, language, or behavior beginning during the developmental period, before age 22, and typically lasts throughout a person’s lifetime”. Karen Andreasian, et al., Revisiting S.C.P.A. 17-A: Guardianship for People with Intellectual and Developmental Disabilities: A Report of the Mental Health Law Committee and the Disability Law Committee of the New York City Bar Association, 18 Cuny L. Rev. 287, 291 (2015) (citing facts about developmental disabilities); see also, Facts About Developmental Disabilities, Ctrs. For Disease Control & Prevention, http://www.cdc.gov/ncbddd/developmentaldisabilities/facts.html, archived at https://perma.cc/R537-2XA3.
[ii] “Intellectual disability” describes the cognitive aspect of a developmental disability, generally affecting thought processes,” the elements of which include “(1) significant impairments in intellectual functioning, as measured by IQ testing; (2) deficits in real-world skills and abilities resulting from the disability (adaptive behavior deficits); and, in the case of developmental disability (3) onset of the disability before the individual became an adult”. Some individuals who have intellectual disability (i.e. persons with psychosocial disability/mental illness and progressive cognitive decline, such as Alzheimer’s disease/dementia) are not covered by Art. 17-A. Andreasian et al., supra note 1,at 291 (citing facts about intellectual disability). See also, Intellectual Developmental Disorder (Intellectual Disability), American Psychiatric Ass’n, https://www.psychiatry.org/File%20Library/Psychiatrists/Practice/DSM/APA_DSM-5-Intellectual-Disability.pdf
[iii] Andreasian et al., supra note 1, at 288.
[iv] See Rose Mary Bailly & Charis B. Nick-Torok, Should We Be Talking? Beginning a Dialogue on Guardianship for the Developmentally Disabled in New York, 75 ALB . L. REV . 807, 817-19 (2012).
[v] 1989 N.Y. Sess. Laws 675 § 2 (McKinney).
[vi] Governor’s Approval Mem, 1969 NY Legis Ann, at 586.
[vii] In re Yvette A., 27 Misc. 3d 950, 951 (N.Y. Sur. Ct. NY Cty. 2010) (at Fn.23).
[viii] In re Chaim A.K., 26 Misc.3d 837, 885 N.Y.S.2d 582, (N.Y. Sur. Ct. N.Y. Cty. 2009).
[ix] Andreasian et al., supra note 1, at 293.
[x] In re Chaim A.K., supra note 8 at Fn. 33.
[xi] See generally SCPA Art. 17-A.
[xii] See In re Stevens, 17 Misc.3d 1121(A), 851 N.Y.S.2d 66 (Table) (N.Y. Sur. Ct. N.Y. Cty. 2007).
[xiii] Mental Hyg. § 81.02(a)(2).
[xiv] See Mental Hyg. § 81.32.
[xv] In re John J.H, 27 Misc.3d 705, 896 N.Y.S.2d 662 (N.Y. Sur. Ct. N.Y. Cty. 2010) at Fn. 11.
[xvi] In re Joyce G.S., 30 Misc.3d 765, 766, 913 N.Y.S.2d 910, 911 (N.Y. Sur. Ct. Bronx Cty. 2010).
[xvii] See Id., see also, In re John J.H., supra note 15, at 709, Fn. 9 and 10.
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