Surrogate López TorresIN THE MATTER OF A PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN FOR CHENEL D. PURSUANT TO SCPA ARTICLE 17-A (2017; 2017) — Before the court is a petition by Wallace S (Mr. S, petitioner, and a cross-petition by Bernadette W (Ms. W), cross-petitioner, both seeking to be appointed as guardian of the person of Chenel D (respondent or Chenel) pursuant to Article 17-A of the Surrogate’s Court Procedure Act (“SCPA”). A guardian ad litem (GAL), was appointed for Chenel, who issued a report of her recommendations and findings.Chenel was born in Trinidad and raised in the United States. Chenel’s grandmother, Ms. W, brought her to the United States at the age of six months after her mother and father abandoned her. Ms. W asserts that she was unable to commit to caring for Chenel because of a full-time job, and asked Mr. S. a cousin, and his wife, Thyra S to care for Chenel. Mr. S has been Chenel’s primary caregiver since infancy along with his now deceased wife. Ms. W currently resides in Philadelphia, Pennsylvania and she asserts that she has attempted to remain a presence in Chenel’s life throughout the years.
Statutory Framework of Article 17-AGuardianship appointments are governed by Article 17-A of the Surrogate’s Court Procedure Act (“SCPA”) for individuals who are intellectually or developmentally disabled. Under SCPA 1750, an intellectually disabled person is defined as a person who is permanently or indefinitely incapable of managing 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. A developmentally disabled person is defined in SCPA 1750 as one who has an impaired ability to understand and appreciate the nature and consequences of decisions which results in her or his incapacity to manage oneself or one’s own affairs. The developmental disability must be permanent or likely to continue indefinitely and attributable to cerebral palsy, epilepsy, neurological impairment, autism, traumatic brain injury, or any condition found to be closely related to an intellectual disability. The condition must have originated before the age of 22. Similar to SCPA 1750, the developmental disability must be properly certified by the appropriate healthcare professionals. Regardless of whether an individual’s condition is categorized under SCPA 1750 or SCPA 1750-a, the legal determination of the need for guardianship is functionally the same, and both rely on the same body of law. Additionally, it must appear to the satisfaction of the Court that the best interests of such a person will be promoted by the appointment of a guardian. SCPA 1754(5).Article 17-A, as a plenary guardianship, removes the individual’s legal right to make decisions regarding her or his own affairs and vests the guardian with “seemingly unlimited power.” Matter of Chaim A.K. 26 Misc 3d 837 (Sur Ct, New York County 2009); In re D.D., 50 Misc. 3d 666,668 (Sur Ct, Kings County 2015); Matter of Michael J.N., 58 Misc. 3d 1204(A) (Sur Ct, Erie County 2017). Many decisions that help define an individual’s essence are fundamentally removed, whom a person can marry, whether a person can travel, where a person can work, the inanner in which a person can manage their finances, where a person can live, what medical treatment a person can receive, and so forth. Matter of Zhuo, 53 Misc 3d 1121,1127 (Sur Ct, Kings County 2016). Individuals subject to Article 17-a guardianship lose the legal right to govern their own lives and to participate in society without the approval of another. Matter of Michelle M., 52 Misc 3d 1211(A) (Sur Ct, Kings County 2016). Whenever a person’s medical and individual rights are at stake, they are constitutionally entitled to the appointment of counsel. Matter of L.S., 2016-178, NYLJ 1202763438217, at 1 (Sur Ct, Chautauqua County 2016). Due to the plenary nature of Article 17-A guardianship, it should be used as a last resort when attempting to address a disabled individual’s needs, as “it deprives the individual of so much power and control over his or her life.” Matter of Dameris, 38 Misc 3d 570, 578 (Sur Ct, New York County 2012). If less restrictive measures are available that are sufficient and reliable to meet the needs of the individual, then guardianship is not warranted.In order to support such profound loss of individual liberty, a petitioner bears the burden of proving that appointment of a guardian is both necessary and in the best interest of the person with an intellectual or developmental disability. SCPA 1750-a, Matter of K.L., NYLJ 1202792444598 (Sur Ct, Richmond County 2017); In re D.D., supra. The term “best interest” has been described as “amorphous” (see Matter of Chaim, A.K., supra at 844), and the criteria necessary to support a finding that appointment of a guardian is appropriate in a particular case are rarely articulated but often assumed. Matter of Udwin, NYLJ, June 11, 2013 at 31 (Sur Ct, Kings County). When making this consideration, understanding the functional capacity of an individual with a disability, what an individual can or cannot do, is a necessary inquiry in determining best interest and the necessity of guardianship. Id. This is especially true in light of the emerging awareness of the wide range of functional capacities found among people with diagnoses of intellectual or developmental disability. Matter of Chiam A.K., supra at 845. Along with circumstances surrounding the person’s functional capacity, the Court must also consider an inquiry into the availability of resources to assist the individual, including the availability of a support network of friends, family, and supportive services. Matter of Dameris, supra at 579. Article 17-A must be read to require that supported decision-making must be explored and exhausted before plenary guardianship is imposed, meaning that if an individual has decision-making support available through various networks, this would constitute the least restrictive alternative, precluding the imposition of a legal guardianship. Id. at 577; In re D.D., supra at 670; Guardianship of Sean O, NYLJ Oct. 7, 2016, col.6 (Sur Ct, Suffolk County).
