DECISION and ORDER Before the Court is a petition filed for guardianship of the person of Chaya A. B. (“Chaya”) pursuant to Article 17-A of the Surrogate’s Court Procedure Act (Article 17-A). The petition has been brought by Clinton B., the father of Chaya. A hearing was conducted before the undersigned in the Surrogate’s Court of Kings County on February 6, 2023. Testimony at the hearing was given by Clinton B. in support of the guardianship petition. Chaya also testified. The Court has reviewed the Affirmation of Rarakesh Dua, MD. (“Dr. Dua”), a pediatrician who had examined Chaya on three occasions1 and additional medical evidence offered by Dr. Howard Traub, PhD. (“Dr. Traub”), a licensed psychologist. Dr. Dua and Dr. Traub have both diagnosed Chaya as having intellectual disabilities, developmental disabilities, autism, and Prader Willie Syndrome. Dr. Dua has specified “aggressive behavior” and affirmed that Chaya is “intellectually slow” and “incapable of managing her affairs.” Dr. Traub concluded that Chaya is not capable of understanding and appreciating the nature and consequences of health care decisions due to both intellectual disabilities and developmental disabilities. Article 17-A Hearing: Chaya is currently 20 years old. Chaya had been living with her mother, Theodora G. until her mother died on January 4, 2020. Chaya currently resides with her father, Clinton B., his wife, Aisha B., and his wife’s two children. Chaya has two adult siblings, Terrence G. and Kingsley G., who reside in Connecticut and Brooklyn, respectively. During her testimony, Chaya was able to clearly express herself and responded to questions in an appropriate manner. There were no instances during her testimony that Chaya did not understand the questions asked by the Court. Chaya informed the Court that she attends a special needs program at a New York public school, and that she travels to school on a New York City public bus. (Transcript of Chaya B. 2/6/2023 at p.6, In.19). When asked about travelling to school, Chaya stated that she takes public transportation and answered: “Yes, I like to be independent.” (Id. at p.9, In.5).2 As to her living arrangement, Chaya resides in the basement of the father’s home located in Brooklyn, New York, where she has separate living quarters. Chaya prefers to live separately from Aisha and her children. Chaya reported that there is friction between her and the children in the home and the father’s new family has made her uncomfortable. (Id. at p.17, In.4-18). Notwithstanding the conflict in the home, Chaya stated that she is content with the living arrangement and appears to be self-sufficient in the separate living space. In support of his petition for guardianship, Clinton B. has expressed his opinion that Chaya has trouble making decisions and that he needs “to explain things to her.” (Id. at p.27, In.8). Clinton B. also stated that Chaya becomes frustrated when she is unable to complete forms. (Id. at p.28, In. 10). It is his contention that Chaya needs help in filling out forms and applying for housing and that he is unable to assist her because he does not have legal authority. (Id. at p.27, In.17-22). Chaya does recognize that she needs help with making decisions and she is willing to accept help from her father. (Id. at p.29, In.6-10). Chaya has a good relationship with her father and supports his petition for guardianship so that he may assist her in certain matters such as housing applications.3 However, Chaya repeatedly mentioned her desire for independence and even emphatically expressed her wish that she be able to make decisions for herself regarding marriage. When asked about the decision to marry, Chaya responded: “If I want to marry somebody, I don’t want nobody to stop me…”. (Id. at p.29, In.11-17). Discussion: Article 17-A of the Surrogate’s Court Procedure Act provides for guardianship over persons who are intellectually disabled and developmentally disabled. An Article 17-A guardianship is plenary, resulting in a “total deprivation of the individual’s liberties.” Matter of Guardianship of Michael J.N., 58 Misc.3d 1204(A), 4 (Sur. Ct., Erie Co. 2017). An Article 17-A guardianship being “the most restrictive type of guardianship available under New York law,” can only be granted “in the absence of less restrictive alternatives.” Robert C.B. v. Callahan, 170 N.Y.S.3d 619, 621 (2022) (quoting Matter of Eli T., 89 N.Y.S.3d 844 [Sur. Ct., Kings Co. 2018]). When determining whether an Article 17-A guardianship is in the best interest of an individual with intellectual and developmental disabilities, the court considers the availability of less restrictive alternative resources available to the individual which can also assist the individual’s ability to live safely in the community while maintaining their independence. Chaim G., 146 N.Y.S.3d 767, 2 (Sur. Ct., Kings Co. 2021). A person, who is permanently or indefinitely “incapable of managing oneself and/or one’s own affairs by reason of an intellectual disability has been certified by one licensed physician and one licensed psychologist.” SCPA §1750(1). SCPA §1750-a characterizes a person with developmental disabilities as having an impaired ability to understand and appreciate the nature and consequences of decisions which result in the person being incapable of managing themselves or their affairs by reason of developmental disability. SCPA §1750-a. Dr. Dua and Dr. Traub have both diagnosed Chaya with developmental disabilities and intellectual disabilities. Chaya, as a person with intellectual disabilities and developmental disabilities, has shown that she enjoys a significant level of independence. Chaya takes care of her basic needs such as cooking, cleaning, and living separately in her residence. Chaya travels on public transportation and visits with friends in the community. The petition of her father is focused on a narrow area of decision making which is primarily centered on completing forms and applications. Clinton B. reported that he currently assists Chaya when she needs help with those tasks and Chaya accepts his help. As stated above, an article 17-A guardianship is appropriate when it is the least restrictive alternative. (See Matter of Grace J., 176 N.Y.S.3d 450, 451 [Sur. Ct. Kings Co., 2022]). It is clear to this Court that the Article 17-A guardianship is not the least restrictive alternative as Chaya’s need for assistance is limited to completing forms and applications. It has been shown in the testimony that Chaya has been able to handle those issues with the assistance of her father, Clinton B., and there is no reason to believe that assistance will not continue. The facts which have been presented in this case would favor “supported decision making” which would be less restrictive than an Article 17-A guardianship. The Supported Decision-Making Agreement Act (“SDMAA”) has been enacted in legislation by the New York State Legislature in 2022. The SDMAA recognizes the benefits of utilizing “a trusted supporter” to assist the person with disability and protect such person’s independence. NY MHL §82.01(b). Under the SDMAA, a “decision or request made or communicated by a decision-maker with the assistance of a supporter in accordance with the provisions of a supported decision-making agreement must…be recognized as the decision or request of the decision-maker and may be enforced by the decision-maker in law or equity on the same basis as all others” NY MHL §82.11(b). It is readily apparent to this Court that Chaya is capable of appointing her father (or any trusted member of her family) as her agent, if needed, for assistance with applications, forms, medical procedures, etc. Clinton B. is completely credible in his desire to assist his daughter and he has in fact provided much needed resources and guidance for Chaya, which have been especially important after Chaya’s mother’s death. His motivations are valid to seek guardianship, however, Chaya has the capability of maintaining her independence and firmly stated that she wishes to do so. The parties are advised to pursue supportive decision making as an alternative and, based on the record herein, Clinton B. and Chaya have been engaged in an informal supported decision-making arrangement already. Conclusion: After a careful review of this matter, it is the Court’s conclusion that an Article 17-A guardianship is not the least restrictive means of supporting Chaya. The petition is hereby denied and dismissed. Dated: April 14, 2023
