Should we be talking? Beginning a dialogue on guardianship for the developmentally disabled in New York.

AuthorBailly, Rose Mary
  1. INTRODUCTION

    New York has two major forms of guardianship for an incapacitated person (1): Article 81 of the Mental Hygiene Law, titled "Proceedings for Appointment of a Guardian for Personal Needs or Property Management" (2) ("MHL 81") and Article 17-A of the Surrogate's Court Procedure Act, titled "Guardians of Mentally Retarded and Developmentally Disabled Persons" (3) CSCPA 17-A"). These two statutes, which had their beginnings in different eras--SCPA 17-A in 1969 (4) and MHL 81 in 1992 (5)--reflect different motivations and purposes in the approach to guardianships.

    The authors acknowledge that the term "intellectual disability" has replaced the term "mental retardation" and its derivatives in the federal government and most states, including New York with its renamed Office of People with Developmental Disabilities (OPWDD). However, SCPA 17-A has not been amended to reflect this change. Because this article relies heavily on the language of the statute and its legislative history, it will use the term "mental retardation." Perhaps changing the terminology of the statute could be the beginning of the consideration of other changes discussed here.

    SCPA 17-A is "'a simple guardianship device, based upon principles of in loco parentis'" (6) by which a court can appoint a guardian for an individual based on a diagnosis of mental retardation, (7) developmental disabilities, (8) or traumatic head injury. (9) In contrast, MHL 81, "the most modern form of guardianship created under New York State law," (10) is a more complex statute. Under MHL 81, the court appoints a guardian with authority tailored to the needs and functional limitations of the incapacitated individual, rather than basing its decision on the individual's particular diagnosis. (11)

    A practitioner considering the appointment of a guardian for an individual with mental retardation or a developmental disability is confronted with a choice between statutes with two distinct views of guardianship. The difficulties in making this choice have become apparent in recent cases comparing the statutes' relative merits. These cases highlight significant differences between the statutes and illustrate the ambiguities about the scope and jurisdiction inherent in co-existing statutes. (12)

    While the response to these differences and ambiguities might be to "modernize" SCPA 17-A or fashion one statute out of the two, at least two barriers currently exist to such solutions. The first one, and perhaps the more difficult to overcome, is that many advocates are opposed to abandoning separate treatment for individuals with mental retardation and developmental disabilities, particularly for those individuals whose disabilities are profound. (13) Their position is bolstered by the legal principle that treating individuals with developmental disabilities differently from others in the community is constitutionally permissible in certain circumstances. (14) The second barrier, which also cannot be discounted, is the relative ease and modest cost of commencing an SCPA 17-A guardianship proceeding. (15) Notwithstanding those barriers, several recent developments suggest the possibility of opening a dialogue about whether changes to SCPA 17-A could benefit individuals with developmental disabilities while preserving much of the statute's original intent.

    The first development is a series of amendments to SCPA 17-A beginning in 2002 that for almost eight years left a wide disparity between SCPA 17-A guardians and MHL 81 guardians regarding end-of-life decision-making. The 2002 SCPA 17-A amendment clarified the authority of a guardian of an individual diagnosed with mental retardation to make health care decisions, including end-of-life decisions, (16) based on the best interest of the individual. (17) While the statute's previous silence on health care decisions (18) may have been consistent with the notion of a guardian acting "in loco parentis," the 2002 amendment recognized that a medical provider needs certainty regarding the authority of either a parental guardian or an unrelated guardian. (19) The amendment also marked a major shift in New York's law regarding end-of-life decisions because it overturned New York's common law rule that a guardian could not make end-of-life decisions for an individual who never had the capacity to express his or her wishes. (20)

    There was a "certain irony" in the 2002 SCPA 17-A amendment as it defined the terms "withhold[ing] or withdraw[ing] life sustaining treatment," with reference to section 81.29(e) of the MHL. (21) At that time, however, MHL 81 "neither prohibit[ed] or authorize[d]" end-of-life decisions based on the best interest of the incapacitated individual. (22) Instead, an MHL 81 guardian was required to satisfy the common law rule in New York applicable to individuals who had capacity at one time, namely, that a surrogate demonstrate clear and convincing evidence of the incapacitated individual's prior competent wishes. (23)

    Subsequent amendments to SCPA 17-A in 2003, 2005, and 2007 provided an even more expansive view of end-of-life decision-making under the statute. (24) It was not until 2010, as part of the enactment of New York's Family Health Care Decisions Act, (25) that MHL 81 was amended to authorize the guardian to make end-of-life decisions based on the best interests of the incapacitated individual. (26) While the breadth of the changes to SCPA 17-A regarding end-of-life decision-making based on an individual's best interest is laudatory, the eight year lag between legislation authorizing an SCPA 17-A guardian to make such decisions and legislation authorizing an MHL 81 guardian to do so highlights the pitfalls of a two statute regime and the challenges for practitioners in choosing a guardianship proceeding for the developmentally disabled individual.

    The second development is the questions raised by some recent decisions highlighting the differences between the two guardianship statutes and some resulting ambiguities about the scope and jurisdiction of SCPA 17-A.

    The third development is a report of the diversity of practices and customs in the application of SCPA 17-A from county to county and even within individual counties. (27)

    This article is offered as framework for beginning a dialogue among practitioners and academics about this two statute regime by highlighting the underlying goals of national guardianship reform efforts, the history of SCPA 17-A, and some emerging issues posed by recent interpretations of SCPA 17-A.

  2. TRENDS IN GUARDIANSHIP

    For a long time, the law viewed an individual's "incompetence in simple black and white terms." (28) Individuals with developmental disabilities were subjected to plenary guardianships (29) along with a concomitant "deprivation of rights." (30) By the 1960s, this presumption was being tested at the national level. (31) In 1962, the President's Commission on Mental Retardation urged that solutions to legal problems faced by individuals with mental retardation address, among other things, the appropriateness of tailored guardianships given continuously changing social conditions. (32) In 1969, the International League of Societies for the Mentally Handicapped likewise urged tailored guardianships for individuals with partial impairments. (33) By 1976, appreciation was growing for careful and constructive law reform in a broad spectrum of areas including personal and civil rights of individuals with mental retardation and developmental disabilities. (34) The 1976 Report of the President's Committee on Mental Retardation, stated that:

    Statutes and court procedures bearing on competency should be clarified and revised (a) to recognize gradations of competence, (b) to recognize that areas of competency may be quite varied and therefore should be separable in law, (c) to assure full and explicit due process safeguards on any and all areas of competency, and that the scope of any judgment of incompetence is made fully explicit, and (d) to ensure that restrictions of competency be limited to a specific period of time or subject to periodic review. (35) Following the 1975 passage of the Developmentally Disabled Assistance and Bill of Rights Act, (36) the American Bar Association ("ABA") undertook a broad study of major areas of law affecting developmentally disabled children and adults. This study, known as the Developmental Disabilities State Legislative Project, included guardianships. (37) The goal was to encourage "well conceived" legislation that drew on "the best thinking, most advanced concepts, and outstanding work products from other states." (38) After a review of state guardianship statutes, the Project concluded that the standards for appointing guardians for individuals with disabilities were frequently "broad and vague" (39) and, most importantly, "failed to recognize that individuals with disabilities are often capable of doing many things for themselves." (40) The Project proposed a Model Guardianship and Conservatorship Act, (41) the purpose of which was to establish:

    a system which permits partially disabled and disabled persons and minors to participate as fully as possible in all decisions which affect them, which assists such persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources, and developing or regaining their abilities to the maximum extent possible, and which accomplishes these objectives through the use of the least restrictive alternatives. (42) To that end, the model statute provides a detailed list of provisions to cover all aspects of guardianship from procedure to substantive effect to accountability. The statute's highlights include the following: (1) providing a list of disposition alternatives ranging from least to most restrictive, including court ordered assistance without the appointment of a guardian, a limited personal...

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