A person's right to determine the course of his or her life is a fundamental value in American law and firmly embodied in New York State jurisprudence.1 Guardianship is the legal means by which a court appoints a third party, most typically an individual, but in other cases a not-for-profit corporation or government official, to make some or all decisions on behalf of a person determined unable to manage his or her own affairs.2 Guardianship can be an important protective device, forestalling personal harm, financial exploitation, and other affronts to the dignity and welfare of people who are alleged to lack decisional capacity.3 The civil liberties of the person subjected to guardianship yield in the process, however, exacting a personal and societal cost that warrants further exploration and consideration.4
This article weaves historical context and modern disability theory together to highlight the principle that less restrictive alternatives must be considered before a guardianship is imposed upon any person. Stakeholders in New York are urging modernization of our guardianship statutes at the same time the American Bar Association has resolved that legislatures and courts recognize supported decision-making as a less restrictive alternative before guardianship is imposed. The article closes with an admonition that guardianships should be considered dynamic, rather than static, in nature. Restoration of rights is required when the person subject to the regimen no longer benefits from its boundaries. Guardianship from a civil rights perspective shatters conventional beliefs about surrogacy and is offered for the benefit of people with disabilities who wish to define their own futures.
Guardianship and American Law
Guardianship has been employed since Ancient Rome to protect people who are unable to manage their personal and financial affairs because of incapacity by removing their right to make decisions and transferring legal power to another person, the guardian.5 Guardianship is a matter of state law. Before a guardian may be appointed, an individual must be determined to be an incapacitated person, defined in various ways, but codified in uniform acts as:
an individual who, for reasons other than being a minor, is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.6
In most states, a single guardianship statute applies to all populations, regardless of the alleged cause of the person's incapacity. New York is one of six states, the others being California, Connecticut, Idaho, Kentucky and Michigan,7 that have a separate statute that may be invoked for people with developmental disabilities. Guardianships may be plenary in nature, divesting all autonomy from the person subject to the regimen, or tailored to the individual needs of the person found to lack capacity.8 Although virtually all state statutes have an explicit preference for limited guardianships, the empirical evidence that is available suggests that most guardians appointed by courts are authorized to exercise total or plenary authority over the affairs of the person determined to be incapacitated.9
A lack of clarity persists concerning the actual number of people who may have guardians appointed for them in the United States. Estimates range from less than 1 million to more than 3 million, but the number will likely increase significantly with the aging of the "baby boomers,10 as well as the prevalence of dementia in the population.11
Guardianship and Civil Rights
Given its ancient origins, guardianship laws predate not only modern civil rights laws, such as the Americans with Disabilities Act,12 but also precede the U.S. Constitution and the Magna Carta.13 Often examined through the lens of benevolence, the appointment of a guardian divests autonomy from another person and has severe civil rights implications. As stated in 1987 by the House of Representatives Special Committee on Aging:
By appointing a guardian, the court entrusts to someone else the power to choose where [he/she] will live, what medical treatment [he/she] will get and, in rare cases, when [he/she] will die. It is in one short sentence, the most punitive civil penalty that can be levied against an American citizen . . .14
The "civil death" characterization of guardianship arises because a person subjected to it loses autonomy over matters related to his or her person and property. Indeed, in many jurisdictions a person with a legal guardian will be deprived of fundamental rights, such as the right to vote, marry and freely associate with others.15
A powerful counter voice to guardianship as civil death is the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol.16 Adopted in 2006, the CRPD is the first international human rights treaty drafted specifically to protect the rights of people with disabilities.17 Legal scholars argue that the CRPD will provide the impetus for reshaping guardianship laws in the United States as "CRPD dictates supported - as opposed to substituted - decision making."18 Whereas guardianships involve a third party making decisions for the individual subject to the regimen, supported decision-making focuses on supporting the individuals' own decisions. As stated by the American Bar Association:
Supported decision-making constitutes an important new resource or tool to promote and ensure the constitutional requirement of the least restrictive alternative. As a practical matter, supported decision-making builds on the understanding that no one, however abled, makes decisions in a vacuum or without the input of other persons whether the issue is what kind of car to buy, which medical treatment to select, or who to marry, a person inevitably consults friends, family, coworkers, experts, or others before making a decision. Supported decision making recognizes that older persons, persons with cognitive limitations and persons with intellectual disability will also make decisions with the assistance of others although the kinds of assistance necessary may vary or be greater than those used by persons without disabilities.19
One form of assistance is the "Supported Decision-Making Agreement" by which the person with a disability chooses individuals to support him or her in various areas, such as finances, health care, and employment. In turn, "supporters" agree to assist the person in his or her decisions, rather than substituting their own. Supported decision-making agreements are used in pilot projects around the world and in at least one state, Texas, which enacted its own Supported Decision-Making Agreement Act.20 In New York, it can be expected that recommendations for legislation will emerge as a result of a five-year pilot funded by the Developmental Disabilities Planning Council. The Council has issued a grant to a consortium of faculty members from Hunter College/City University of New York, among others, to study supported decision making as an alternative to guardianship in New York.21
Guardianship in New York
The general adult guardianship statute in New York is codified at Article 81 of the Mental Hygiene Law (MHL). The stated purpose of Article 81 is to:
[S]atisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person's life.22
A discrete statute exists, however, that may be invoked for people alleged to be in need of a guardian by reason of an intellectual or other developmental disability. In contrast, that statute, codified at Article 17-A of the Surrogate's Court Procedure Act (SCPA), is a plenary statute the purpose of which at its inception in 1969 was largely to permit parents to exercise continued control over the affairs of their adult children with disabilities.23 In essence, the statute rested upon a widely embraced assumption that "mentally retarded"24 people were perpetual children.25 Under New York law, a person with developmental disabilities can be subject to either guardianship statute, despite the considerable substantive and procedural variations between Article 81 and Article 17-A.26 A conundrum arises, as a result, because a petitioner for guardianship can choose between two statutes and petitioner's choice will determine the due process protections to be afforded to a respondent with developmental disabilities.
Article 81 of the Mental Hygiene Law
Article 81 of the MHL, proceedings for appointment of a guardian for personal needs or property management, became effective on April 1, 1993.27 Article 81 replaced the former dual structure conservatorship and committee statutes that operated in New York.28 By way of history, the appointment of a committee, pursuant to former Article 78 of the MHL, was the only available legal remedy to address the affairs of a person alleged to be incompetent. However, the committee statute required a plenary adjudication of incompetence.29 Because of the stigma and loss of civil rights accompanying such a finding, the judiciary became reluctant to adjudicate a person in need of a committee.30 In 1972, the conservatorship statute (former Article 77 of the MHL) was enacted into law as a less restrictive alternative to the committee procedure.31 Unlike the committee statute, the appointment of a conservator did not require a finding of incompetence. Rather, the former law authorized the appointment of a conservator of the property for a person who had not been:
[J]udicially declared incompetent and who by reason of advanced age, illness, infirmity, mental weakness, alcohol abuse, addiction to drugs or other cause suffered substantial impairment of his ability to care for his property or has become unable to provide for himself or others dependent upon him for support.32
However, by design, the statute limited the power of the conservator to property and financial matters33 Chapter amendments to the MHL were enacted in 1974 attempting to expand the role of conservators. The first established a statutory preference for the appointment of a conservator.34 A second chapter amendment authorized conservators to assume a limited role over the personal needs of the person who was the subject of the proceeding.35 Cast as reform measures, the amendments actually contributed to the "legal blurring" between Articles 77 and 78.36 In 1991, the Court of Appeals was confronted with a case requiring a construction of the statutory framework to determine the parameters of the authority of a conservator. The question presented to the tribunal was whether a conservator could authorize the placement of his ward in a nursing home. In In re Grinker,37 the Court of Appeals determined that such power could be granted only pursuant to the committee statute. The Grinker decision "settled the debate" surrounding the authority of a conservator to make personal needs decisions.38 However, the Grinker holding also "dramatized the very difficulty the courts were trying to resolve, namely, choosing between a remedy which governs property and finances or a remedy which judges a person completely incompetent."39
To resolve the difficulties inherent in the conservator-committee dichotomy, the New York State Law Revision Commission proposed the enactment of Article 81 as a single remedial statute with a standard for appointment dependent upon necessity and the identification of functional limitations.40 The new statute rejected plenary adjudications of incompetence in favor of a procedure for the appointment of a guardian whose powers are specifically tailored to the needs of the individual. Going forward, the right to counsel would be guaranteed41 and monitoring of guardianships would be required.42 The objective of the proceeding as declared by the legislature was to arrive at the "least restrictive form of intervention" to meet the needs of the person while, at the same time, permitting the person to exercise the independence and self-determination of which he or she is capable.43
Still, Article 8l may be "more progressive on paper than . . . in practice.44 As stated by scholar and former jurist Kristin Booth Glen:
[G]uardianship cases are generally only a small portion of the mix of cases carried by individual Supreme Court Justices but if done right can be extremely time consuming. The combination of an over-burdened judicial system, petitioners who routinely request plenary authority, inadequate resources for independent evaluation, and the likelihood that the [alleged incapacitated person] AIP will be unrepresented, result in far too little of the "tailoring" to specifically proven functional incapacities that is the heart of the statute.45
In addition, as noted by Glen, where the person alleged to be incapacitated suffers, or appears to suffer, from a progressive dementia, "petitioners will request - and courts often grant - full plenary powers to avoid the necessity of repeated future hearings as the individual's capacity (inevitably) deteriorates."46 Protection of individual liberty, however, should not yield to arguments regarding expense of the proceeding or the convenience of parties other than the person alleged to be incapacitated.47 While Article 81 is deemed a model statute in many respects, the statute in application is not without critics. From a civil rights perspective, potential areas ripe for reform abound and include improvement of guardian monitoring in New York, promoting alternatives to guardianship and establishing diversion programs.48
Article 17-A of the Surrogate's Court Procedure Act
Under Article 17-A, the basis for appointing a guardian is whether the person has a qualifying diagnosis of an intellectual or other developmental disability.49 Current law permits the appointment of a guardian upon proof establishing to the "satisfaction of the court" that a person is intellectually or developmentally disabled and that his or her best interests would be promoted by the appointment.50 As a jurisdictional prerequisite, a 17-A petition must be accompanied by certifications of two physicians or a physician or a psychologist that the respondent meets the diagnostic criteria of an intellectual or other developmental disability.51 On its face, Article 17-A provides only for the appointment of a plenary guardian and does not expressly authorize or require the surrogate to dispose of the proceeding in a manner that is least restrictive of the individual's rights. Indeed, Article 17-A does not even require the court to find that the appointment of a guardian is necessary, does not guarantee the right to counsel and permits the proceeding to be disposed without a hearing at the discretion of the court.52 That said, Article 17-A has been revered by families because of its relative ease in commencing the proceeding, often without the assistance of counsel.53 In contrast, Article 81 proceedings can be very complex and expensive to prosecute.54 The convenience of Article 17-A proceedings as compared to Article 81 proceedings causes tension in New York. As aptly stated by Patricia Wright:
If guardianship is made too expensive, incapacitated people who need the protection and assistance of a guardianship may not have those needs met. However, if guardianship fails to protect the rights of respondents, then respondents can be unjustly deprived of their right to autonomy.55
Given the many substantive and procedural variations between Article 17-A and Article 81, the Governor's Olmstead Cabinet56 and commentators have called for reform or "modernization" of Article 17-A.57 Surrogate's Courts are bringing enhanced scrutiny to Article 17-A adjudications and dismissing petitions where guardianship is not the least restrictive form of intervention.58 Further, a lawsuit was commenced on September 26, 2016 in the U.S. District Court for the Southern District of New York by Disability Rights New York59 seeking to enjoin the appointment of guardians pursuant to Article 17-A.60 While the lawsuit was subsequently dismissed on Younger abstention grounds, the complaint alleged that Article 17-A violates the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution, the ADA and § 504 of the Rehabilitation Act.61 The federal court's decision to abstain does not prejudice the right of the plaintiffs to challenge the statute in state court.
Not enough study has been undertaken regarding the restoration of rights of people subject to guardianship.62 Nonetheless, a goal of an effective guardianship regime should be to restore the rights of individuals who are capable of making their own decisions individually or with the assistance of others. Article 81 expressly authorizes modification or termination of the guardianship when, among other things, the incapacitated person has become able to exercise some or all of the powers which the guardian is authorized to exercise.63 Parallel remedies are available to Article 17-A respondents, as Surrogate's Court retains jurisdiction over the proceeding and may consider applications to modify or terminate a guardianship.64 For example, in In re Guglielmo,65 Surrogate's Court previously appointed a 17-A guardian for a respondent who suffered a traumatic brain injury and was in a coma or semi-comatose state for approximately nine months. At the time the 17-A proceeding was commenced, the respondent was dependent upon others for assistance in many activities of daily living. Fifteen years later, he sought to restore his civil rights. The respondent's condition had substantially improved from the time of the accident resulting in his brain injury and three years, in fact, had elapsed since he had been in contact with his guardian. Termination of the guardianship was also supported by the certifications of both a neuropsychologist and a neurologist who opined that the injuries suffered by the respondent did not currently render him incapable of handling his own medical or financial affairs. After hearing from the respondent, who testified at a hearing regarding his abilities and persuasive evidence of capacity, the court determined that the guardianship should be terminated.
In an unreported case, the MHLS assisted an Article 17-A respondent in modifying and then terminating a guardianship that had been purportedly imposed upon the respondent's consent when the guardian (a family friend) would not support the respondent's desire to marry after the respondent became pregnant. The respondent had a mild intellectual disability and had been deemed capable of making an array of decisions concerning her treatment and desire to engage in an intimate relationship. Despite the respondent's capabilities, her Article 17-A guardian would not advocate for the respondent's preferences and desires and instead substituted her own judgment for that of respondent. The guardian went so far as to declare her intention to have the respondent's child removed from the respondent's custody upon birth so that the guardian could establish custody and raise the child. Further, because the respondent was subject to a guardianship, her obstetrician would not accept the respondent's own consent for prenatal care and was prepared to accept the guardian's direction that the respondent receive an intrauterine device (IUD) following delivery of her child. The respondent was willing to accept a different form of birth control, but was opposed to an IUD.
The MHLS identified an OPWDD-certified program where the respondent could reside with her child and her child's father, who also had an intellectual disability, but the guardian would not consent or agree to the placement. When multiple attempts to resolve the respondent's differences with her guardian failed, the MHLS assisted the respondent in filing a petition in Surrogate's Court under the authority of SCPA 1755 and 1759 to terminate the guardianship. Relief was granted in stages with the respondent's mother being appointed as temporary guardian up and until the birth of the child and then the guardianship was thereafter terminated.
In another unreported case, the MHLS assisted a then 67-year-old woman with mild intellectual disability in removing her 17-A guardian, preventing the appointment of a successor guardian - the guardian's daughter - and dissolving the guardianship. The woman's guardian of 30 years, a distant cousin, had never visited her, had called once in those 30 years and only spoke to care providers when inquiries were made because the guardian failed to return documents presented for her signature. The proposed successor guardian had never met the person subject to guardianship. The woman was, in fact, very capable of making her own decisions. She read books, provided her own consent for medication treatment, and exercised her right to vote. As a resident of a state-licensed family care home, the woman consistently maintained that she did not want a guardian and did not know the proposed successor guardian. As counsel, the MHLS argued against the guardianship based on the woman's capacity and because both the guardian and the proposed successor guardian displayed a complete lack of involvement or interest in the woman's life. After multiple reports to the court, which included two medical opinions stating that the woman did not require a guardian, several objections to withdrawing the petition by petitioner's counsel, and repeated adjournments, petitioner's counsel finally consented to a conference, the withdrawal of his application for the appointment of the successor guardian and the termination of the guardianship.66
Restoration efforts in New York may experience a revival as a result of the Supported Decision-Making pilot program funded by the Developmental Disabilities Planning Council. A component of the pilot is to refer people to Disability Rights New York for restoration of rights. As illustrated by the case examples above, the MHLS will also assist individuals subject to both Article 81 and Article 17-A guardianships to petition for modification or termination of guardianship in appropriate cases consistent with the MHLS's enabling regulations.67
Proposals for Legislative Reform
During the 2017 legislative session, several bills were introduced to reform Article 17-A, but none of them passed.68 There are differences among the various proposals. However, in all of the reform measures advanced, Article 17-A would survive as a discrete statute designed for people with developmental disabilities. Common to the various bills are provisions guaranteeing that a guardian will only be appointed where the respondent exhibits significant impairments in specific enumerated domains of intellectual functioning and/or adaptive behavior. Thus, the proposed chapter amendments promote and require an inquiry by the court into the person's actual abilities before a guardian is appointed.
Additionally, as conceived, the reform measures require that petitioners affirmatively plead that alternatives to guardianship were considered, and identify them. Alternatives may include advance directives, service coordination and other shared or supported decision-making models. The reasons for the declination of alternatives to guardianship must also be pleaded. New formulations of Article 17-A would also include the right of all respondents to a hearing and representation by counsel of the respondent's own choosing, the Mental Hygiene Legal Service, or other court-appointed counsel. Ultimately, the vision behind statutory reform is a reduction in guardianship filings and promotion of alternatives to guardianship.
Guardianship law is evolving internationally, nationally and in New York State. For judges and the practicing bar, the time has come to reexamine and apply the fundamental principle that guardianship should be considered only after lesser restrictive alternatives, such as supported decision-making, have proven ineffective or are unavailable. Further, if guardianship is found to be necessary and is imposed upon any person, an essential goal of that guardianship should be retention and eventual restoration of individual rights if at all possible. The time has come for the plenary guardianship of unlimited duration to be relegated to history in recognition of the right of people with disabilities to participate in society on an equal basis with all others.