THE MYTH OF LIBERTY AND JUSTICE FOR ALL: GUARDIANSHIP IN NEW YORK STATE.

• Author: Monthie, Jennifer J.

1. INTRODUCTION

   On September 21, 2016, Disability Rights New York ("DRNY'), (1) filed suit in the U.S. District Court for the Southern District of New York, seeking to enjoin the State of New York (2) from appointing guardianships (3) pursuant to Article 17-A of the Surrogate's Court Procedure Act, claiming that the statute violated the Fifth and Fourteenth Amendments of the U.S. Constitution, the Americans with Disabilities Act ("ADA"), and [section] 504 of the Rehabilitation Act of 1973. (4) The lawsuit asserts that Article 17-A discriminates against individuals with intellectual and developmental disabilities because it "permit[s] the termination of all decision-making rights[,] including... where to live, whom to associate with, what medical treatment to seek and receive, whether to marry and have children, whether to vote, and where to work." (5)

   "In New York State, guardianship of individuals with intellectual disabilities and developmental disabilities may be sought pursuant to Article [17-A] or Mental Hygiene Law Article 81." (6) DRNY's lawsuit challenges the discriminatory differences in the substantive standards governing Article 17-A and Article 81. "[U]nder Article [17-A], the basis for appointing a guardian is diagnosis driven, that is, whether a person has an intellectual or developmental disability." (7) 'Article [17-A] provides... for the appointment of a plenary guardianship of the person, property or person and property[, which] is not individually tailored...." (8) By contrast, Article 81 applies to all persons with functional limitations that allegedly impair their capacity to make decisions. (9) Article 81 does not distinguish between individuals with mental illness, intellectual disabilities, developmental disabilities, or any other disability. Instead, Article 81 requires a court to assess the individual's '"functional limitations which impair the person's ability to provide for personal needs or property management' regardless of the origin of the functional limitation." (10) Under Article 81, any deprivation of rights must be tailored to the functional limitations of the person rather than based on an individual's diagnosed disability. (11) "Article 81 explicitly requires the court to impose the least restrictive form of intervention, [when] taking into account the community supports, resources and existing advance directives that render a guardianship unnecessary." (12)

   DRNY's lawsuit challenges the lack of due process in Article 17-A, namely, that it allows reliance upon uncontested medical certifications for the imposition of a guardianship without ever having the person present at a hearing and does not provide the individual with a right to be represented by counsel. (13) By contrast, the allegedly incapacitated person in an Article 81 proceeding is entitled to a hearing and representation by an attorney throughout the entire proceeding, as well as a myriad of procedural protections otherwise absent in Article 17-A. (14)

   Guardianship is a state's termination of an individual's legal status or personhood under the law. Despite the state's best intentions, and as demonstrated below, the appointment of another as decision-maker ("guardian") is a fundamental infringement on an individual's personal liberty and property rights. As our understanding and acceptance of the rights of people with disabilities continues to evolve under the law, guardianship laws have faced greater scrutiny and at minimum must withstand constitutional prescriptions of due process and equal protection.

   On August 16, 2017, the Southern District of New York granted defendants' motion for judgment on the pleadings in Disability Rights New York v. New York, on the sole ground that abstention is warranted pursuant to Younger v. Harris. (15) The court found: "The New York State courts are an adequate venue for plaintiff to ventilate its constitutional concerns, and plaintiff's challenge will receive the full benefit of appellate review, and if needed, review in the Supreme Court of the United States.... Accordingly, plaintiff's challenge is not prejudiced by my decision today." (16) On September 11, 2016, plaintiff DRNY appealed and the matter is currently pending before the U.S. Court of Appeals for the Second Circuit.

   This article examines the claims asserted in Disability Rights New York v. New York, comparing the substantive and procedural aspects of New York's systems for appointing guardianships pursuant to Article 17-A and Article 81. This comparison will focus on the constitutional deficiencies of Article 17-A from both the due process and equal protection perspectives, and examine the discriminatory impact of the appointment of a guardianship through the lens of the ADA and [section] 504.

2. ORIGINS OF GUARDIANSHIP

   Guardianship stems from the power of the state to act to protect the well-being of its citizens when they cannot care for themselves, also known as the "parens patriae" power. The parens patriae power derives from English law at the time of the settling of the American colonies, when the King had the authority to act as "the general guardian" (17) for all "persons who had lost their intellects and became... incompetent to take care of themselves." (18) After the American Revolution, parens patriae was held to be "inherent in the supreme power of every state [,]... and often necessary to be exercised in the interests of humanity." (19) The premise for guardianship is that members of a society grant power to the state for the protection of their eventual future well-being. (20)

   Despite these benevolent intentions--often directed at individuals with disabilities--parens patriae power does not shield the state from the constitutional requirements of due process and equal protection under the law. (21) In fact, the U.S. Supreme Court has long recognized that "unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure." (22) Whenever "the state... act[s] in parens patriae, it has the inescapable duty to vouchsafe due process." (23) As one New York State Surrogate's Court judge wrote while examining an Article 17-A guardianship petition: "[J]udicial scrutiny of the exercise of the parens patriae power has been imprecise and in guardianship and conservatorship proceedings, it has historically been exercised with little or no concern for due process protection[;] ... [therefore] a more restrictive due process environment is justified in the exercise of the parens patriae power." (24)

3. GUARDIANSHIP REFORM

   In February 1977, President Carter established the Commission on Mental Health to review the mental health needs of the nation. (25) The Commission, recognizing the unchecked parens patriae power of states, reported that improving the guardianship system was a high priority. "Because guardianship can lead to a deprivation of legal rights, it is a highly restrictive method of providing supervision and assistance[;]... [i]t is therefore essential that guardianship laws be carefully tailored to avoid any unnecessary restrictions on the rights of individuals." (26) The Commission specifically recommended: increased procedural protections such as written and oral notice; the right to be present at the proceeding; the right to legal representation; and a clear and convincing evidence standard of proof. (27) The Commission also called for "a comprehensive evaluation of functional abilities conducted by trained personnel;" the exercise of the guardian's powers only in the least restrictive manner; and "a system of limited guardianship [where a person's] rights are removed... for only those activities in which [the] person" is unable to act competently. (28)

   In 1978, building upon the Commission's recommendations, the American Bar Association's ("ABA") Commission on the Mentally Disabled proposed the ABA Model Guardianship Statute, which highlighted limited guardianship and other alternative pathways to addressing the needs of individuals with disabilities without resorting to guardianship. (29) The Model Guardianship Statute proposed laws to enhance the autonomy and retain the decisionmaking rights of individuals with disabilities. (30) The Model Guardianship Statute provided procedural due process protections that were either nonexistent or vaguely worded in most guardianship laws. (31) The Model Guardianship Statute also replaced the process of relying on conclusory medical opinions about the person's incapacity with functionally based criteria for assessing the person's need for substitute decision-making. (32) These recommendations, however, did not result in substantial guardianship reform across the United States. Instead, it took another decade, abuse of an aging population, and an Associated Press expose to prompt states to reform guardianship laws.

   In September 1987, the Associated Press published an expose of a year-long study into the state of guardianship in the United States, with a headline announcing: "Declared 'Legally Dead' by a Troubled System." (33) The Associated Press examined 2,200 probate, guardianship, and conservatorship estate files, (34) and found that forty-eight percent were missing annual financial accountings, and thirteen percent lacked any entries after the appointment of the guardianship. (35) One of the most shocking findings of the report was that forty-nine percent of the people under guardianship were not present at the hearings when the guardianship was appointed, and twenty-five percent of their records failed to indicate whether hearings had even been held. (36) This expose revealed that "[i]n thousands of courts around the nation every week, a few minutes of routine and the stroke of a judge's pen are all that it takes to strip [a person] of basic rights." (37) A legal tool meant to protect people and their property was shown to result in financial or physical mistreatment. One source that was quoted...