In March 2016, one of the co-authors of this column co-wrote an article for this publication titled “Article 17-A Guardianship Statute: Still Alive and Well.”1 It contained an examination of whether Surrogate’s Court Procedure Act Article 17-A, originally enacted in 1969, is still an appropriate statutory scheme given: (1) the modern understanding of the greatly varied capabilities of persons diagnosed with intellectual and developmental disabilities and (2) that there is a greater appreciation today for the need to protect the rights of those subject to an Article 17-A proceeding. Since that article was written, there have been additional significant court decisions issued concerning Article 17-A and a federal lawsuit was filed challenging the statute on constitutional grounds. As such, the topic is worth revisiting.
As explored in the prior article, the central controversy surrounding Article 17-A deals with the very nature of the statute. First, because the statute is diagnosis driven, it is widely criticized as making blanket assumptions concerning the need for guardianship based on a diagnosis rather than the specific functional capabilities and limitations of the person that is the subject of the proceeding. Second, once a court determines that it is in the “best interest” (a term that has been criticized as too amorphous) of the person diagnosed as intellectually or developmentally disabled, the court may appoint a guardian with plenary powers, without tailoring to the ward’s specific need. Indeed, some courts view the statute as requiring nothing less than plenary guardianship. As one court put it, Article 17-A is “a blunt instrument which allows for none of the ‘tailoring’ that characterizes our adult guardianship statute (Mental Hygiene Law art 81; see Matter of Chaim A.K., 26 Misc 3d 837 [Sur Ct, NY County 2009]).” Matter of J.H., 27 Misc.3d 705, 706 (Sur. Ct., New York Co. 2010).
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