Matter of Antonio C.
Annotate this CaseDecided on July 22, 2016
Surrogate's Court, Kings County
In the Matter of the Proceeding for the Appointment of a Guardian for Antonio C., Pursuant to SCPA Article 17-A.
2015-4490
No counsel, petition submitted pro se.
Margarita L³pez Torres, J.
This is a proceeding pursuant to Article 17-A of the Surrogate's Court Procedure Act (SCPA) for the appointment of Dennis G. (petitioner) as the guardian of the person of Antonio C. (respondent). The respondent is currently sixty-six years old. His parents are deceased and his only relatives are his sister and brother. The petitioner is not a relative of the respondent, instead, he is the former boyfriend of the respondent's sister, Gloria C.
In New York, there are two statutory mechanisms for the appointment of guardians of intellectually disabled individuals " SCPA Article 17-A (Article 17-A) and Mental Hygiene Law Article 81 (Article 81). Article 17-A applies to persons who are intellectually disabled. An intellectually disabled person [FN1] is defined as a person who has been certified as having an inability to understand and appreciate the nature and consequences of decisions and incapable of managing herself and her affairs by reason of such disability. SCPA 1750-a (1). Historically, Article 17-A was originally enacted "primarily to provide a means for parents of [intellectually disabled] children to continue decision making power after those children reached age twenty one." Matter of Chaim A.K., N.Y.L.J., September 21, 2009, at 27 (col. 1) (Sur. Ct. NY County 2009).
Essentially, in an Article 17-A proceeding, the petitioner bears the burden of demonstrating that the respondent is an intellectually disabled individual, which condition originated before he attained the age of twenty-two, who is incapable of managing himself and/or his affairs by reason of such disability, and that such condition is permanent in nature or likely to continue indefinitely. SCPA 1750-a.
A hearing was held in which the petitioner, respondent, and respondent's sister testified. The petitioner has been acquainted with the respondent since approximately 1993, or since the respondent was forty-three years old. There is no evidence in the record or adduced at the hearing that would indicate that the respondent's alleged disabilities occurred before the age of twenty-two years as required by statute. Additionally, the medical records submitted fail to show that the respondent's alleged disabilities were present before the age of twenty-two years. The certification [FN2] of the examining physician, after a "mini mental exam," in a conclusory manner determined that he has "cognitive dysfunction" and that he requires "supervision." The physician also notes that the respondent has "short term memory loss." The certification of the examining psychologist indicates that the respondent suffers from "moderate mental retardation." While the certification also notes that this condition was diagnosed when the respondent was five years old, the report fails to state a basis for this conclusion. No medical or school records were provided respecting the respondent's condition prior to the age of twenty-two years. As such, the conclusory finding in the psychologist's report may not be given weight. While most
Article 17-A petitions are accompanied by individual education assessments or individual service plans, which detail a history of a respondent's condition, no such documents were produced. The petitioner has failed to meet the requirement of Article 17-A, that the respondent is a person who, by virtue of an intellectual disability commencing before the age of twenty-two, is not capable of managing himself.
Moreover, the evidence adduced at the hearing demonstrates that the respondent possesses essential living skills. He washes his own clothes, does his own cooking, and goes food shopping independently. He takes no medication with which he requires assistance. Notably, the petitioner has only resided with the respondent for approximately nine months. Prior to that, the respondent lived on his own for an unknown period of time. He previously lived with his brother subsequent to his mother's death. It appears that for most of his life he resided with his mother. The respondent's sister, and not the petitioner, is the payee for respondent's Supplemental Security Income. While the petitioner stated that he and the respondent's sister assist the respondent with activities such as taking him to the doctor, the petitioner affirmed that he and the respondent's sister would assist with those activities whether or not the petitioner was appointed guardian. There was no testimony that respondent is unable to see doctors without assistance. Additionally, the testimony from the petitioner and [*2]respondent's sister indicates that this sixty-six year old respondent is capable of managing many of his affairs, albeit with some assistance from relatives.
When asked why the petitioner is seeking to become the respondent's guardian at such a late stage in the respondent's life, the petitioner stated that it is to secure housing for himself. He has resided with the respondent for approximately nine months in a New York City Housing Authority (NYCHA) apartment which contains more than one bedroom. The petitioner testified that he was informed by NYCHA that, as a non-family member, he would have to become the respondent's legal guardian to be added to the lease for the apartment. It would appear that the impetus for filing this petition is for the purposes of securing housing for the petitioner.
To the extent that respondent is unable to manage some of his affairs, recourse may be had pursuant to an Article 81 proceeding, which does not require that a respondent's disabilities be present before the age of twenty-two. Additionally, respondent will be afforded more safeguards in that proceeding, such as the appointment of an attorney to represent him and a court evaluator to investigate more fully which of his affairs he is unable to manage and to what degree a guardian should be empowered to assist him. A tailored guardianship may be fashioned for him rather than the global guardianship provided by Article 17-A.
As determined by this Court in Matter of Luis,
Article 81 guardianships are granted over adults whose functional incapacities make the person unable to manage her person or property and, upon proof of specific incapacity, a guardian may be appointed to remedy the particular incapacity. While Article 17-A guardianships remove decision making power from the respondent and "divests [that individual] of any control over that property..." (Matter of Mark C.H., 28 Misc 3d 765 [Sur. Ct. NY County 2010]), Article 81 guardianships "are closely tailored to grant the guardian no more power than is absolutely necessary under the circumstances of the case" and "aims to preserve the person's autonomy to the greatest degree possible." Matter of Chaim A.K., N.Y.L.J., September 21, 2009, at 27 (col. 1) (Sur. Ct. NY County 2009).Matter of Luis, N.Y.L.J., April 4, 2014, at 35 (col. 2) (Sur. Ct. Kings County 2014). The tailored approach of an Article 81 proceeding may be the more suitable avenue for the respondent.
For the foregoing reasons, the petitioner has failed to demonstrate that the respondent is a person in need of a guardian pursuant to Article 17-A. As such, the petition is dismissed.
Dated: July 22, 2016
Brooklyn, New York
HON. Margarita L³pez Torres
S u r r o g a t e Footnotes
Footnote 1:This Court uses the term "intellectual disability" in lieu of "mental retardation" even though the SCPA utilizes the latter to describe the same condition. This change in terminology has been approved and used in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the standard texts used by psychiatrists and mental health professionals in classifying mental disorders. See Hall v. Florida, 134 S. Ct. 1986 (2014), citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013). The shift away from usage of "mental retardation" is reflected in federal statutes (see Rosa's Law, Pub. L. 111-256, 124 Stat. 2643) (all references in federal law to "mentally retarded individual" are changed to "individual with an intellectual disability"). New York has renamed its "Office of Mental Retardation and Developmental Disabilities" to "Office for Persons with Developmental Disabilities." Accordingly, the term "mental retardation" in the SCPA is antiquated and offensive and will not be used by this Court to describe individuals with disabilities.
Footnote 2:These certifications are often boilerplate forms that include sections where the affiant physician or psychologist checks off pre-printed conclusions relating to the decision-making capabilities of an intellectually or developmentally disabled individual. The Court has found these certifications wanting in useful information and requires, at a minimum, psychological and psychosocial evaluations of the respondent, as well as the respondent's Individual Education Plan or Individual Service Plan. The petition and supporting documents in this proceeding are unquestionably lacking in this regard.
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