A recent decision from New York County in which Surrogate Glen denied an Article 17-A guardianship petition, Matter of Chaim, A.K., 8/26/2009 NYLJ 41 (col 1) (Sur Ct, New York County), has clarified the proper use of the proceeding.
The Court began its analysis by distinguishing the characteristics of guardianship proceedings brought pursuant to Article 17-A of the Surrogate’s Court Procedure Act, and those brought under Article 81 of the Mental Hygiene Law. Specifically, the Court held that the Article 17-A proceeding is not necessarily appropriate in all circumstances where an individual has been diagnosed as developmentally disabled or mentally retarded.
Chaim presented facts typical of Article 17-A cases. Parents were petitioning for guardianship of their son who had reached majority and had been diagnosed by two physicians as developmentally disabled. He was unable to make medical decisions for himself. Indeed, both diagnosing physicians submitted affidavits supporting his parents’ application. However, the additional information before the Court, including psychiatric reports demonstrating psychological and emotional problems, led the Surrogate to question whether an Article 17-A guardianship was appropriate.
In her decision, Surrogate Glen explained the many factors that distinguish Article 17-A proceedings from those commenced under Article 81. She noted the following:
Article 17-A was originally intended as a vehicle for parents of mentally retarded children to continue to exercise control after the child reached an age of majority, while Article 81 is directed at adults who have lost or diminished capacity;
Article 81 grants no more power to the guardian than is necessary, while Article 17-A does not allow for the court to grant the guardian a particular degree of control over the ward;
No hearing is required under Article 17-A, while a hearing is necessary under Article 81, providing the opportunity for cross-examination and independent counsel for the AIP;
Article 17-A allows for the discretionary appointment of a guardian ad litem, while Article 81 mandates the appointment of an independent court evaluator;
Article 17-A is silent as to burden of proof, whereas Article 81 requires clear and convincing evidence;
Article 17-A is largely driven by forms, often providing the court with conclusory statements about the ward’s condition but resulting in ease for applicants who frequently petition pro se, while Article 81 is more complex and thus more likely to require the services of an attorney; and
Article 17-A guardians are not required to report to the court with any updates after the appointment, whereas Article 81 guardians must file detailed reports ninety days later and subsequently on an annual basis (id.).
Considering Chaim’s particular situation in light of the “all or nothing” nature of an Article 17-A guardianship, Surrogate Glen denied the Petition and suggested that Article 81 may be more appropriate. Her rationale was that the evidence demonstrated that Chaim’s difficulties were attributable more to mental illness than mental retardation, and thus were likely treatable. As a result, the Court opined that it would be unnecessary and inappropriate to give a guardian complete power over Chaim’s affairs pursuant to Article 17-A. Instead, the Court held that “changes in his circumstances . . . may require altered powers in the guardian or perhaps even, someday, no guardian at all” (id.).
This decision has the potential to significantly change the landscape of guardianship proceedings in Surrogate’s Courts. It is presently unknown whether Chaim will be the subject of an appeal, but we will keep you informed of any developments.