PETITIONING FOR PROTECTION: WITHOUT REPEAL OR REFORM OF ARTICLE 17A, CAN PRACTITIONERS MAINTAIN ETHICAL GUARDIANSHIP PRACTICES WHILE SIMULTANEOUSLY PROTECTING THE RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES?

Author:Campigotto, Maria
Position::New York Surrogate's Court Procedure Act
 
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ABSTRACT

Despite calls for reform of Article 17A guardianships for more than twenty-five years, the statute remains unchanged and New York routinely subjects adults with intellectual disabilities to open-ended, plenary guardianships with few, if any, procedural protections. As non-profit legal service providers working in a medical-legal partnership, hospitals refer to our organization, LegalHealth, clients who seek Article 17A guardianships over their loved ones. In this Essay, we discuss the many ways in which Article 17A fails to protect the rights of our clients' children, and the ethically compromised position practitioners are often put in while trying to both advocate for our clients (the Petitioners) and protect the ward (the Respondent). New York has another guardianship statute. Article 81, that, while not perfect, does a better job of protecting the rights of people with intellectual disabilities. Contrary to popular belief, Article 81 proceedings are not any more onerous than Article 17A proceedings. We suggest that the legislature either repeal Article 17A, leaving guardianships to proceed under Article 81, or reform Article 17A to align with protections afforded in Article 81. In the meantime, we suggest some solutions and practice guidelines that practitioners should follow in order to prevent undue violations of the civil liberties and due process rights of people with intellectual disabilities.

TABLE OF CONTENTS Introduction 871 I. Background 875 II. Article 17A's Central Flaw Is Its Adoption of a Diagnosis-Driven Approach to People with Intellectual Disabilities, Resulting in the Unconstitutional Denial of Procedural Protections Throughout the Guardianship Process 879 A. Article 17A Fails to Protect People with Intellectual Disabilities by Applying an Unduly Restrictive One-Size Fits All Approach to Guardianship 883 B. Article 17A Violates the Ward's Right to Due Process by Failing to Ensure Her Right to Participate in the Guardianship Proceeding 885 C. Article 17A Endangers Persons with Intellectual Disabilities by Providing No Post-Appointment Protections 890 D. Recent Court Attempts to Salvage Article 17A 892 1. In re Mark C.H. and Annual Reporting Requirements After Appointment of a Guardian 892 2. In re Dameris L. and the Least Restrictive Alternative to Achieve the State's Goal 895 III. Article 17A Does Not Live up to Its Original Purpose of Eliminating the Costs and Complications Involved in Guardianship Proceedings and Is Not, in Practice, Less Onerous Than Article 81 Guardianships 898 IV. Recommendations 901 A. Article 17A Should Be Repealed 901 B. While We Wait for Repeal or Reform: Ethical and Practical Considerations 906 1. Considerations Prior to Representation 906 2. Considerations During and After Representation 908 a. Practitioners May Commit to Only Assisting with Article 81 Guardianships 908 b. Practitioners May Ask the Court to Read Protections Guaranteed under Article 81 Proceedings into Article 17A 909 3. Ethical Considerations 912 Conclusion 913 "I love to discover potential in people who aren't thought to have any." --Oliver Sachs INTRODUCTION

Sarah (1) is a twenty-two-year-old woman with intellectual disabilities, specifically cerebral palsy. She needs to have her wisdom teeth removed. Sarah lacks the capacity to provide the requisite informed consent her doctors require to administer general anesthesia and perform the procedure. Because she has reached the age of majority, her parents no longer have legal authority to consent to the procedure on her behalf.

Charlie is a sixty-year-old man from Belize. He was found confused and disoriented wandering the street. EMTs were called and he was taken to a hospital. He suffers from advanced dementia. He requires help with all of his daily activities and constant supervision. He has no family aside from his sister, a lawful permanent resident and single mother of three, who is unable to care for him at home. Due to his immigration status, he is not eligible for Medicaid or other state health insurance, (2) which would provide either a home health attendant or care in a skilled nursing facility. Therefore, although he has not required acute medical care in more than a year, he remains hospitalized because no safe discharge plan can be implemented.

Both of these patients were referred to LegalHealth, a medical-legal partnership providing free legal services to low-income patients at over twenty-five hospitals and clinics throughout New York City and Long Island. (3) When LegalHealth's partner organizations recognize that a patient has a legal issue, the medical providers refer their patient to LegalHealth onsite at the hospital or clinic. LegalHealth's mission is to improve the health and quality of life for low-income New Yorkers with serious health conditions by addressing the social determinants that affect health. (4) For example, helping a diabetic man obtain food stamps will increase his ability to comply with his prescribed diet. By assisting the mother of an asthmatic child living in a mold-infested apartment obtain adequate repairs from the landlord, LegalHealth can improve the child's health, decrease her need for inhaled steroids or other medications with potentially harmful side effects, and reduce ER visits, school absences, and instances where our client must call off from work to care for her sick child.

Unsurprisingly, a significant number of referrals to LegalHealth are for family members of mentally "incapacitated" adults like Charlie and Sarah. (5) Although both of these families are seeking adult guardianships, or the ability to make decisions on behalf of their mentally incapacitated loved one, the legal process for each is quite different. As we will discuss, the legal protections and due process rights afforded to these incapacitated adults are significantly different as well.

Article 17A of the Surrogate's Court Procedure Act (Article 17A) and Article 81 of the Mental Hygiene Law (Article 81) govern the appointment of guardians in New York. (6) Article 17A is used to obtain guardianship over a mentally retarded or developmentally disabled person whose mental incapacity occurred before the ward obtained the age of twenty-two-years-old, such as Sarah. (7) Article 81 applies to any other situation. (8) Since Charlie's "incapacity" is not the result of mental retardation or developmental disability and occurred well after his twenty-second birthday, an Article 81 guardianship would be used for Charlie.

Compared to Article 17A, Article 81 provides many more procedural protections designed to prevent abuse and preserve an alleged incapacitated person's autonomy. One of the problems with Article 81, however, is that there are very few, if any, organizations providing free representation to petitioners in Article 81 proceedings. Non-profit legal service organizations do not assist low-income New Yorkers to pursue Article 81 guardianships, at least in part, because these organizations believe that the expense and time requirements are beyond their resources. Article 17A guardianships were designed to be an easy and accelerated process for parents who need to maintain a continuity of authority over the legal and medical needs of their children with mental disabilities. (9) Unfortunately, Article 17A sacrifices procedural protections and respect for autonomy for speed and convenience.

Both Charlie and Sarah's families are seeking similar remedies for similar problems: the legal authority to consent to necessary medical care (in the case of Sarah) or legal representation to pursue immigration remedies that will lead to Medicaid eligibility (in the case of Charlie). Both Charlie and Sarah are facing significant legal consequences, namely the loss of some or all of their autonomy, and what some have described as a "civil death." (10) Why should the protections put in place to protect Charlie's autonomy under Article 81 not also be available to Sarah under Article 17A? Is it not arbitrary to make such determinations based solely upon the underlying cause of their intellectual disability? We believe that it is.

LegalHealth handles many Article 17A guardianship proceedings. (11) In addition, LegalHealth has partnerships with several law firms in New York City that represent LegalHealth clients on a pro bono basis under its guidance and supervision. Our mission is to improve the lives of medically vulnerable low-income New Yorkers by addressing their non-medical needs. (12) For guardianships, our mission is to improve the lives of the patients alleged to be incapacitated. (13) Sarah needs a medical procedure that she cannot get without a guardian. Charlie needs representation to address an immigration matter that might lead to Medicaid eligibility, but cannot understand the possible risks and benefits of various immigration options, nor consent to an attorney-client relationship. Theoretically, both Sarah and Charlie's situation would improve with the appointment of a guardian. However, neither Sarah nor Charlie would be LegalHealth clients during the guardianship process. Instead, their family members would be LegalHealth clients. As attorneys, we are professionally and ethically required to represent the interests of our clients, which may be in direct conflict with the interests of their family member with intellectual disabilities.

As legal practitioners serving low-income clients, we find the current statutory framework extremely problematic. We are troubled by the lack of procedural protections provided by Article 17A and the potential for people with intellectual disabilities to be disenfranchised by a guardianship system that does not recognize their unique abilities and limitations. Under these circumstances, representing the families of individuals with intellectual disabilities in Article f7A guardianship proceeding gives us pause. Because Article 81 guardianship proceedings are available and...

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