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.