Article 17-A of the Surrogate’s Court Procedure Act was enacted in 1969-a time when  individuals with intellectual and developmental disabilities over the age of 18 were viewed and treated as children with limited ability and potential. We now know how wrong and shortsighted that view is. During the past 55 years we have developed a better understanding of the needs of individuals with intellectual and developmental disabilities and the supports and services they require.  As a result of early intervention and diagnosis, improvements in the special education system combined with effective behavioral, social and vocational supports, individuals with disabilities have the opportunity to learn and acquire the skills they will need to live productive and fulfilling lives in the community. Simply because an individual has a disability does not mean that he or she is not capable of expressing preferences and making decisions on how they want to live their life. In fact the trend  now is to recognize those preferences and incorporate them into a person centered “life plan” which set forth a person’s goals and  the supports and services needed to attain them. As a result of the evolving views and legal treatment of individuals with disabilities during the past 55 years the almost total power granted to the 17-A guardian is viewed quite differently today. The current form of Article 17-A guardianship, however, takes away all of the individual’s rights based upon a bare bones factual analysis of their actual abilities, and it does so with precious little due process afforded to them. It is not surprising, then, that stakeholders in the disability community have re-examined 17-A guardianship. In recent years, the Surrogate’s Courts have required more evidence such as the submission of recent psychological evaluations, IEP’s and ISP’s for the individuals who are under consideration. Legislative proposals have also been developed to amend the Section 17-A statute and to fully consider all aspects off the disabled individual’s functioning during the guardianship process. These proposals would enhance due process and participation for individuals and would require that more evidence be taken. A clearer and more stringent standard for the Surrogates to apply would also be put in place. The Surrogates would also be granted the power to tailor the 17-A guardianship to the actual needs of the individual so it would be a less restrictive form of intervention.

Article 17-A of the Surrogate’s Court Procedure Act (“Article 17-A”) was enacted in 1969 in response to advocacy from parents seeking to protect their children with intellectual or developmental disabilities as they reached adulthood and throughout their lives. In addition, there was a movement in New York at that time to deinstitutionalize individuals with disabilities so that they could live their lives in the community and no longer be confined to an in patient facility. Article 17-A gave the New York Surrogates the power to appoint a guardian for the “person” and/or the “property” of a disabled person over the age of 18. Guardianship of the person means that the guardian controls all personal decisions such as health care, place of living, education, adult programming and the like. Guardianship of the property gives the guardian complete control of the person’s assets and the ability to make all financial decisions on their behalf. A 17-A guardianship is referred to by the term “plenary”, which is a fancy legal way of saying that 17-A guardianship is all encompassing or absolute. Under the current statute, a 17-A guardianship cannot be limited or tailored to be less restrictive to meet the needs of the person with a disability. In fact, the guardianship process under Section 17-A is purely diagnosis driven and does not ask for much information regarding an individual’s adaptive living skills and daily level of functioning. Nor does the guardianship process meaningfully examine the person’s understanding and management of his or her finances. A petition for the appointment of a guardian of the person and property of an individual who is intellectually or developmentally disabled is typically filed by a parent or any interested person over the age of 18, including an authorized corporation, in a New York State Surrogate’s Court in the county where the person with a disability resides. The petition consists of a standard form that asks for very basic personal information. The petitioners must also submit 2 certificates from either 2 physicians or a physician and a licensed psychologist. On the forms the doctors must describe the disability of the person and state (a) whether the person under an intellectual or developmental disability is capable of managing his or her personal and financial affairs; and (b) whether the person’s condition is permanent or likely to continue indefinitely. Many doctors resent having to complete the forms and they often provide the bare minimum of the information called for, giving the Surrogate’s Court a very limited picture of an individual’s abilities and level of functioning. Because of this many Surrogates ask for an IEP or a psychological evaluation in order to get a better idea of an individual’s cognitive ability and adaptive living skills. Based on the above information and using a standard of the “best interests” of the individual, the Surrogate decides whether appointment of a guardian is appropriate. Testimony is rarely ever taken in Court. In some jurisdictions no appearance by the individual being considered for guardianship is even required, though that is changing in many counties. For many years it was very unusual for a guardianship to be terminated by the Surrogate’s Court once it was granted. Recently, however more judges have been willing to terminate a 17-A guardianship if it can be demonstrated that the individual has made significant progress in managing his or her affairs and has an adequate support system in place to assist them with making significant medical, financial and personal decisions. That process, however, requires a new petition to be filed in Surrogate’s Court and involves evidence and testimony being presented, all at more expense to families. Next Post:  The pros and cons of Section 17-A and the future legislative outlook