By Erica Fitzgerald, Esq., Littman Krooks LLP

Article 17-A of the Surrogate’s Court Procedure Act provides a mechanism by which, generally speaking, a parent or interested person over the age of 18 (“Petitioner”) may seek and obtain guardianship over an individual diagnosed with an intellectual or developmental disability (“Ward”).   In order to obtain 17-A guardianship over another individual, a Petitioner must establish that a 17-A guardianship is in the best interest of the Ward.

In making this assessment, a Surrogate’s Court must consider the functional capabilities of the Ward, the least restrictive means available to protect the Ward, and the existence of outside resources available to the Ward.  Guardians appointed under Article 17-A have plenary, or complete, decision-making power over their ward.  This includes, but is not limited to the power to make all decisions regarding medical treatment, living arrangements, travel, employment, and social associations. The appointment of a 17-A guardian results in an immense loss of individual liberty.  Although this total loss of decision-making power not necessary in all 17-A Guardianship situations, Article 17-A, unlike Article 81 Guardianship proceedings, does not provide a mechanism to tailor guardianship powers.  Thus, Surrogates’ Courts have begun to grapple with determining whether substituted versus supported decision-making is appropriate in matters before them.

Serious questions exist regarding the Constitutionality of extent of 17-A Guardianship powers.  Some courts have moved towards denying, and even revoking, 17-A Guardianships in cases where plenary powers over a Ward is deemed to be not in the best interest of the Ward. Litigation has also ensued.In 1999, New York Governor Andrew Cuomo created the “Olmstead Cabinet” which sought to reform Article 17-A and to address concerns regarding how persons with mental disabilities should be treated under the Americans with Disabilities Act (“ADA”).  The report recommended that Article 17-A be revised to mirror Article 81 with response to appointment, hearings, functional capacity, consideration of choice and preference in the decision-making.

Unfortunately, to date, there has been no legislative action taken to modify or revise Article 17-A to permit a court to tailor the powers granted to a Guardian pursuant to Article 17-A.  However, given the growing concern regarding the need to tailor Article 17-A Guardianship powers, legislative action may have to amend Article 17-A to address the tailoring issues and growing concern regarding the substituted decision-making powers of granted pursuant to Article 17-A.  If you are a parent or interested party considering obtaining guardianship over another individual, talk to an attorney who can help you navigate the process.

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