A Diagnosis of “Intellectual or Developmental Disability” Does Not Always Warrant Article 17-A Guardianship

 In Fall 2018, Family Law, Uncategorized

Although the objectives of Article 17-A guardianship are well-intentioned, they are not always ideal in practice. This is especially so when it comes to diagnosed “intellectually and developmentally disabled” individuals who are functional and have the capacities to make significant decisions for themselves, instead of having to rely on a guardian who may refuse to consider their best interests and desires.

An illustrative example is Matter of Michelle M., a 2016 case decided by the Surrogate’s Court of Kings County (2016 NY Slip Op 51114(U), N.Y. Misc. LEXIS 2719).

Michelle was an outgoing and bubbly 34-year-old woman living in Brooklyn with two roommates in a small apartment. She enjoyed grocery shopping and cooking for her roommates. For six years, Michelle worked part time at a cellular phone supply store, working closely with her colleagues and interacting with numerous customers. She banked at her local branch, where she deposited her paychecks and used online banking and the bank’s ATM machine to keep track of her accounts and to withdraw money. Michelle traveled independently using New York City’s public transportation system to go to work, run errands, meet friends and visit her parents in New Jersey. When time allowed, Michelle enjoyed going shopping for clothing and shoes, getting her nails polished, spending time with her boyfriend and having her friends over to her apartment.

Michelle saw her doctors on a regular basis, independently making and keeping her appointments with them and remembering to take her prescribed medications on a daily basis. She also attended vocational and recreational activities at a day habilitation program run by a social services agency that provides programs and services for individuals with intellectual and developmental disabilities. She was able to independently make important decisions concerning her personal safety, interpersonal relationships, employment, finances, and health and living situations without the input of anyone else. She was also an individual living with Down syndrome who had been diagnosed with an intellectual disability.

Although Michelle’s parents acknowledged that she was able to live independently despite her diagnosis, they contended that she was unable to make medical and other important decisions concerning her welfare and applied for guardianship over her pursuant to Article 17-A.

In September 2015, a hearing was held in Surrogate’s Court during which oral testimony was presented by Michelle. Certifications by an M.D. and a Ph.D., a psychological evaluation, and her yearly individualized service plans  from her day habilitation program were provided to the court. The certifications, in conclusory fashion, stated that Michelle “is mentally retarded” and therefore “incapable of managing herself and/or her affairs by reason of mental retardation . . . the respondent is not capable of understanding and appreciating the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and of reaching an informed decision in order to promote her own well-being.” It was noted that Michelle had “scored a full scale IQ of 46 on the Stanford-Binet Intelligence Scales — 5th Edition”, placing her cognitive ability within the moderate intellectual disability range.

An affirmation by Mental Hygiene Legal Services (MHLS), which represented Michelle in this proceeding, was submitted to the court which stated that “Michelle’s parents were involved in her life, that Michelle trusts them and often talks with them in her decision-making process, and that if the court was to determine that she needed an Article 17-A guardian, her parents would be appropriate”. However, the affirmation concluded that “there may be less restrictive means available to protect both Michelle and her family’s interests, while maximizing Michelle’s independence and autonomy”.

In dismissing the parents’ petition for guardianship, the court agreed with MHLS, noting that the basis for appointing an Article 17-A guardian is strictly diagnosis-driven and not based upon the functional capacity of the individual with the intellectual and developmental disability. It is thus “perhaps the most restrictive type of guardianship available under New York law,” since its language does not grant a court the authority or discretion to limit or tailor the scope of guardianship to address the individual’s specific needs and completely removes the individual’s legal right to make decisions over her own affairs, vesting in the guardian “virtually complete power over such individual.”

Under Article 17-A, the appointment of a guardian is based upon proof establishing to the satisfaction of the court that a person has been diagnosed as intellectually or developmentally disabled and that his or her best interests would be promoted by the appointment. An intellectually disabled person is defined by SCPA 1750 as a person who is permanently or indefinitely incapable of managing herself and/or her own affairs because of an intellectual disability. The condition must 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 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.

The court noted that the perfunctory appointment of a guardian based upon medical certifications or diagnostic tests alone, without careful and meaningful inquiry into the individual’s functional capacity, relies upon the incorrect assumption that the mere status of intellectual disability provides sufficient basis to wholly remove an individual’s legal right to make decisions for herself. It found that understanding the functional capacity of an individual with a disability — that is, what an individual can or cannot do in managing her daily affairs — and assessing what is the least restrictive tool available to address that individual’s specific area of need is a necessary inquiry in determining what is in her “best interest.” Thus, it continued, “the appropriate legal standard is not whether the petitioners can make better decisions than Michelle, it is whether or not Michelle has the capacity to make decisions for herself, albeit with supportive services.”

The court noted that the credible evidence clearly demonstrated that Michelle is an adult who, despite cognitive limitations, has the capacity to make decisions affecting the management of her own affairs with the support of her family and supportive services — which is no different than an adult of typical intelligence who consults with trusted friends and family prior to making important decisions. In finding that Article 17-A guardianship was not warranted under the circumstances, the court stated that to allow Michelle to retain the legal right to make personal decisions about her own affairs, while providing her with any necessary assistance to make or communicate those decisions in a supported decision-making framework which she already has in place, is ultimately in her best interest.

Although well-intentioned, an Article 17-A guardianship is not in the best interest of many diagnosed “intellectually disabled” individuals who, like Michelle, possess the functional capability to manage their own affairs, albeit sometimes with the help of family members or friends. Because it is diagnosis-driven, there is often an absence of attention given to an individual’s actual mental and physical capacities and judgments, which should be an important factor in determining if 17-A guardianship is appropriate. Every individual is different, and there should be no standard cookie-cutter determination for all respondents. Tailoring Article 17-A guardianships to reflect the functional physical and mental capacities of the individual should be strongly considered.

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