Guardianship Not Warranted Where Less Restrictive Alternatives Available To Address Needs Of Alleged Incapacitated Person

A New York surrogate turned down a guardianship petition filed by the parents of a 34-year-old woman with Down syndrome, holding that courts should always seek to impose the least-restrictive terms of oversight that meet the needs of the person alleged to be incapacitated. Matter of Michelle M., 2016 NY Slip Op 51114(U) (Surrogate’s Court, Kings County, July 22, 2016)

Michelle M. suffers from Down’s Syndrome and was diagnosed with an intellectual disability. Michelle’s parents brought a guardianship petition, alleging that Michelle is unable to make medical and other decisions relating to her welfare. It was undisputed that Michelle’s parents are actively involved in Michelle’s life, Michelle trusts her parents and often consults with them in her decision-making process, and, if the court were to determine that Michelle was in need of a guardian, the parents would be appropriate.

Michelle’s parents acknowledged that Michelle was independent in her activities of daily living. At the guardianship hearing, the evidence showed that Michelle lived in Brooklyn with two roommates in a supported apartment since 2008. Michelle enjoys grocery shopping and cooking for herself and her roommates. For the past six years, Michelle worked part-time at a cellular phone supply store. She travels independently, using public transportation to go to work, run errands, and meet friends. Michelle engages in vocational and recreational activities at a day habilitation program. Michelle sees her doctors on a regular basis, making and keeping her appointments with her physicians.

After the hearing, the New York Surrogate ruled that a guardianship was unnecessary, and dismissed the parents’ complaint. The court reasoned that imposing a guardianship “completely removes the individual’s legal right to make decisions about her own affairs and gives the guardian virtually complete power over the disabled person.” As a result, a court judgment imposing a guardianship is an “extreme remedy” that “should be the last resort for addressing an individual’s needs because it deprives the individual of so much power and control over his or her life.” According to the court, “if there are less restrictive alternatives that are sufficient and reliable to meet the needs of the person, guardianship is not warranted.”

In order to identify less restrictive alternatives to guardianship that meet the legitimate goal of protecting a person with intellectual or developmental disabilities from harm connected to those disabilities, the Surrogate held that “an inquiry into the availability of resources to assist the individual, including a support network of family and supportive services, is required.” The court held that:

[I]t is not … in the best interest of a person with the capacity to make independent decisions to have her decision making wholly removed through [a] guardianship, no matter how well-intentioned the guardian. The appropriate legal standard is not whether the [plaintiffs] can make better decisions than Michelle, it is whether or not Michelle has the capacity to make decisions for herself, albeit with supportive services.

As a result, the Surrogate ruled that, with appropriate supportive services, Michelle had capacity to make decisions affecting the management of her own affairs and, in fact, already made decisions and managed herself and her affairs without a guardian. As a result, the guardianship application was dismissed.

The decision in this case was the latest in a series of recent New York rulings declining to appoint guardians. In Matter of D.D., 2014-2185, the court held that family members’ objections to the plans of a 29-year-old man with Down syndrome to get married did not justify appointing a guardian (NYLJ, Nov. 3, 2015). In Matter of Raymond J.R. and Proceeding for Hytham M.G., the court held that guardianship was not warranted for individuals with disabilities who had viable, less-restrictive supervision available to them.

The case is annexed here – Matter of Michelle M., 2016 NY Slip Op 51114(U) (Surrogate’s Court, Kings County, July 22, 2016)

For additional information concerning guardianships and fiduciary services, visit: http://vanarellilaw.com/guardianship-fiduciary-services/

The post Guardianship Not Warranted Where Less Restrictive Alternatives Available To Address Needs Of Alleged Incapacitated Person appeared first on Elder Law Attorney NJ | The Law Office of Donald D. Vanarelli.

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