Guardianship’s Article 17-A: Marooned in Time and in Need of Reform

Guardianship’s Article 17-A: Marooned in Time and in Need of Reform

12.29.2022

By Sheila Shea

In cases where a person is alleged to be unable to make his or her own decisions, the law has traditionally responded by empowering surrogates, including legal proxies or guardians, to act for or on behalf of the individual. Surrogate decision-making regimes have increasingly been scrutinized and criticized, however, for curtailing the rights of people with disabilities to autonomy and self-determination.[1] In 2006, the United Nations Convention on the Rights of Persons with Disabilities recognized legal capacity as a “human right” that persons with disabilities can enjoy “on an equal basis with others in all aspects of life,”[2] and that persons with disabilities should be provided with “the support they may require in exercising their legal capacity.”[3] Article 12 of the U.N. convention is widely recognized as the cornerstone for supported decision-making and is regarded by some as a mandate to abolish surrogate decision-making regimes.[4]

In 2016, with a grant from the Developmental Disabilities Planning Council, Supported Decision-Making New York[5] was formed as a five-year pilot project to explore the use of supported decision-making in New York. In 2021, a bill to codify supported decision-making and a supported decision-making agreement was first proposed by the Office for People With Developmental Disabilities.[6] On July 26, 2022, Mental Hygiene Law Article 82 was enacted,[7] and New York joined 12 jurisdictions in the United States with Supported Decision-Making regimes.[8] Article 82 will be effective upon promulgation of implementing regulations by the Office for People With Developmental Disabilities and will apply to people with developmental disabilities.[9]

The New York State Bar Association Task Force on Mental Illness and Trauma Informed Representation is studying supported decision-making and several other sections and committees of NYSBA have a keen interest in this decision-making model. This article provides an overview of Article 82 and contrasts it with Article 17-A of the Surrogate’s Court Procedure Act, the discrete guardianship statute for people with developmental disabilities. The article closes with a call to reform 17-A now that supported and surrogate decision regimes for people with developmental disabilities coexist in New York State. Specifically, Article 17-A should be amended to cross-reference supported decision-making as an available resource, making guardianship unnecessary where it can meet the individual’s needs for assistance. Further, because Article 17-A guardianship remains an available remedy in New York, guardians should be informed of supported decision-making principles and the law reformed to ensure that the due process rights of people subject to Article 17-A are protected.

Article 82 of the Mental Hygiene Law

Supported decision-making, as codified in New York, means:

a way by which a decision-maker utilizes support from trusted persons in their life, in order to make their own decisions about their life, including, but not limited to, decisions related to where and with whom the decision-maker wants to live; decisions about finances; the services, supports, and health care the decision-maker wants to receive; and where the decision-maker wants to work.[10]

The decision-maker is defined as an adult (with developmental disabilities) who has executed, or seeks to execute, a supported decision-making agreement.[11] A supporter is an eligible adult who has voluntarily entered into a supported decision-making agreement with a decision-maker, agreeing to assist the decision-maker in making their own decisions as prescribed by the agreement.[12] A supporter shall not be considered a surrogate or substitute decision-maker for the decision-maker and shall not have the authority to sign legal documents on behalf of the decision-maker or bind the decision-maker to a legal agreement.[13]

A “facilitator” means an individual or entity authorized by the Office for People With Developmental Disabilities who works with and educates the decision-maker and his or her supporter or supporters about supported decision-making.[14] A supported decision-making agreement is an agreement a decision-maker enters into with one or more supporters “that describes how the decision-maker uses supported decision-making to make their own decisions.”[15] The agreement can either be an informal arrangement between the decision-maker and his or her supporter or supporters or one that has been reviewed and signed by a facilitator, in accordance with the process that will be prescribed by regulations.[16] Significantly, the supported decision-making agreement is not intended to be “just a piece of paper,” but rather a document that memorializes a flexible process for decision-making that can endure for as long as the decision-maker desires.[17]

Approximately 140 people were enrolled in the supported decision-making pilot, and Supported Decision-Making New York continues to operate under new funding streams engaged after the expiration of the original five-year grant.[18] On Nov. 11, 2022, Supported Decision-Making New York reported on its first post-legislation case, where a 31-year-old man (Ryan) living in Fairport, New York, was successful terminating a 17-A guardianship and having his rights restored by the Monroe County Surrogate’s Court. Ryan was represented in court by Disability Rights New York, the federal protection and advocacy agency in New York State,[19] and a Supported Decision-Making New York partner. Ryan’s legal restoration of rights was preceded in 2021 by the execution of a supported decision-making agreement after a period of facilitation.

Drafting the Supported Decision-Making Agreement

Article 82 does not codify a particular form that must be used in order for a supported decision-making agreement to be valid. However, the law does identify the elements that are required for such an agreement to be effective. A supported decision-making agreement must:

• be dated and in writing;
• designate the decision-maker, and at least one supporter;
• list the categories of decisions with which a supporter is authorized to assist the decision-maker;
• list the kinds of support that each supporter may give for each area in which they are designated as a supporter;
• contain an attestation that the supporters agree to honor the right of the decision-maker to make their own decisions in the ways and areas specified in the agreement, respect the decision-makers’ decisions, and, further, that they will not make decisions for the decision-makers;
• state that the decision-makers may change, amend, or revoke the supported decision-making agreement at any time for any reason:
• be signed by all designated supporters; and
• be executed or endorsed by the decision-maker in the presence of at least two adult witnesses who are not also designated as supporters, or with the attestation of a notary public.[20]

There are permissive aspects of drafting a supported decision-making agreement. For example, the agreement may allow the decision-maker to appoint more than one supporter; authorize a supporter to obtain educational, medical and clinical information; authorize a supporter to share information with any other supporter or others named in the agreement; or detail any other limitations on the scope of a supporter’s role that the decision-maker deems important.[21] In order for the supported decision-making agreement to be enforceable and limit liability, it must also be signed by a facilitator or educator, include a statement that the agreement was made in accordance with a recognized facilitation and/or education process and include an attestation by the decision-maker that a particular decision has been made in accordance with the support described in it.[22]

Implementation and Regulations

Within one year of the enactment of the supported decision-making legislation, the Office for People With Developmental Disabilities is required to promulgate the rules and regulations necessary to implement Article 82 for adults who receive, or are eligible to receive, services that the office operates, certifies, funds or approves.[23] The regulations are to define and prescribe a facilitation or education process to precede the execution of a supported decision-making agreement in New York.[24] Limitations of liability only apply where an agreement has been executed following the facilitation process prescribed by the Office for People With Developmental Disabilities.[25] While awaiting regulations, implementation of supported decision-making agreements in other jurisdictions has typically included: (1) identifying the domains of life in which the decision-maker needs and desires help – for example, financial or medical decision-making; (2) identifying the kinds of support that are needed and desired – for example, communication, interpretive, or representational support; and (3) establishing a formal supported decision-making agreement between the decision-maker and supporters where the decision maker retains the right to make decisions and have them recognized by law.[26]

Currently, supported decision-making in New York only applies to people with developmental disabilities. Article 82 contains two provisions signaling the potential for broader application of this decision-making model, however. The intent of the Legislature is to “strongly urge relevant state agencies and civil society to research and develop appropriate and effective means of support for older persons with cognitive decline, persons with traumatic brain injuries, and persons with psychosocial disabilities, so that full legislative recognition can also be accorded to the decisions made with supported decision-making agreements by persons with such conditions, based on a consensus about what kinds of support are most effective and how they can best be delivered.”[27] Further, MHL § 81.15 states that “additional regulations related to this article may be promulgated by state agencies whose service populations may benefit from the implementation of supported decision-making.”[28]

Presumably, NYSBA sections and committees will continue to study how supported and surrogate decision-making models will be reconciled in New York State, particularly in hospitals and other health care settings.[29] The sustainability of supported decision-making facilitation is another issue being closely scrutinized. Toward this end, a majority of people with developmental disabilities who might desire and benefit from these agreements receive Medicaid-funded services, and authorization currently exists allowing people enrolled in the Self-Directed Services program to use funds from their budgets for facilitation.[30] Finally, an evaluation of the Supported Decision-Making New York pilot is expected to be released by the Burton Blatt Institute at Syracuse University.[31] The SDM Process and Participant Outcomes Evaluation is part of the original supported decision-making grant funded by the Developmental Disabilities Planning Council and is designed to study the pilot and education campaign to determine its strengths and assess replicability.[32] As stated by the council, the final evaluation of the pilot is needed to

demonstrate that supported decision-making is a functioning alternative to surrogate decision-making and should be exhausted prior to anyone seeking, or being granted, guardianship over an individual with intellectual and/or developmental disabilities (IDD). The goal will be to expand the models statewide and to serve as a model for other states exploring issues of guardianship.[33]

Reform of Guardianship Statutes in New York Remains Imperative

The legislation does not cross-reference or make corresponding amendments to either of New York’s existing guardianship statutes – Article 81 of the MHL and SCPA Article 17-A. Professor Nina A. Kohn, who has written extensively on this subject, urges that: “Guardianship statutes should be amended to explicitly prohibit the use of guardianship where supported-decision-making could meet the individual’s needs. Doing so would make it clear that the use of support is not an indication of a need for guardianship, but rather that support can obviate the need for guardianship.”[34]

Guardianship in New York

The general adult guardianship statute in New York is codified at Article 81 of the Mental Hygiene Law. The purpose of Article 81 is to satisfy 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.[35] 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.[36] That statute, codified at Article 17-A of the Surrogate’s Court Procedure Act, 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. In essence, the statute rested upon a widely embraced assumption that “mentally retarded” people were perpetual children.[37] 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. An injustice 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.[38]

Article 17-A is marooned in time and a counterweight to progressive principles that typically emerge in New York State and which are reflected in the newly enacted Mental Hygiene Law Article 82. Last year, the NYSBA Disability Rights Committee issued a report arguing that there is an urgent need to reform Article 17-A.[39] The committee maintained that there are 14 general principles that a guardianship statute for adults with intellectual and developmental disabilities should recognize[40]:         

1. Neither the alleged developmental disability nor the age of the individual alleged to have a developmental disability should be the sole basis for the appointment of a guardian. Rather, the individual’s ability to function in society with available supports should be the focus of the court’s inquiry into the need for a guardian.

 

2. The appointment of a guardian must be designed to encourage the development of maximum self-reliance and independence in the individual. The standard for appointment should be that the person is unable to provide for personal needs and/or property management with available supports, and the person cannot adequately understand and appreciate the nature and consequences of such inability.

 

3. The appointment of a guardian must be necessary and the least restrictive form of intervention available to meet the personal and/or property needs of the individual as determined by a court.

 

4. A guardianship petition must allege the other available resources for decision-making, if any, that have been considered by the petitioner and the petitioner’s opinion as to their sufficiency and appropriateness, or lack thereof. Other resources include, but are not limited to, powers of attorney, health care proxies, trusts, representative and protective payees and supported decision-making.

 

5. All persons alleged to be in need of the appointment of a guardian are entitled to due process protections including, but not limited to, notice of the proceeding in plain language and right to counsel of their own choosing or the appointment of counsel guaranteed at public expense.

 

6. A guardian should not be appointed absent a hearing where the person alleged to be in need of a guardian is present. The person’s appearance at the hearing may be dispensed with in exceptional circumstances at the court’s discretion and in accordance with statutory standards. The person has the right to a jury trial.

 

7. The need for the guardianship must be established by clear and convincing evidence of the person’s functional limitations that impair the person’s ability to provide for personal needs; the person’s lack of understanding and appreciation of the nature and consequences of his or her functional limitations; the likelihood that the person will suffer harm because of the person’s functional limitations and inability to adequately understand and appreciate the nature and consequences of such functional limitations; and necessity of the appointment of a guardian to prevent such harm.

 

8. The powers of the guardian should be identified in the order/decree issued by the court and tailored to meet the needs of the individual in the least restrictive manner possible. The person subject to guardianship retains any powers not expressly conveyed to the guardian.

 

9. The individual must be included in all decisions to the maximum extent possible and practicable, in order to encourage autonomy. The guardian should be encouraging the development of maximum self-reliance and independence in the individual.

 

10. The duties of the guardian should be specified in the order or decree. Among other things, the guardian’s duty is to make decisions that give maximum consideration to the individual’s preferences, wishes, desires, and functioning level. A guardian should protect the individual from unreasonable risks of harm, while supporting and encouraging the individual to achieve maximum autonomy.

 

11. The duration of a guardianship should be determined by the court and conform to the proof adduced at the hearing. For instance, time limited guardianships may be appropriate including where a guardianship is sought for a young adult between the ages of 18 and 25. Where a guardianship of limited duration has been ordered by the court, any application to extend the guardianship should require proof by clear and convincing evidence by the petitioner that it is necessary to continue the guardianship.

 

12. A person under guardianship has a right to seek review of the guardianship and restoration of rights. There must be a clear process to initiate restoration that permits the person under guardianship to initiate and obtain access to counsel at public expense.

 

13. The court should retain jurisdiction over the guardianship and entertain modification and termination proceedings where the burden of proof shall be on the person objecting to discharge or seeking increased powers for the guardian rather than on the respondent.

 

14. The person or entity appointed guardian must be subject to monitoring and oversight by the court. For instance, guardians should periodically file reports as to their activities.

While Surrogate’s Court Procedure Act’s Article 17-A cries out for reform, it remains a surrogate decision-making remedy in New York State. As stated in the Practice Commentaries to the article, the statute is revered by parents who often commence guardianship applications without the assistance of counsel and at less expense than a typical Article 81 proceeding.[41] Also, many 17-A proceedings are not challenged, causing some to argue that the relative ease in proceeding be retained. Nonetheless, even where a guardianship proceeding is not contested, the relief granted by the court should be informed by the functional abilities of the respondent and constitute the least restrictive form of intervention.[42] Recently reported cases where SCPA Article 17-A guardianships were terminated reveal that the plenary nature of the 17-A adjudication is often not consistent with the lived experience of people with developmental disabilities.[43]

With the enactment of Mental Hygiene Law Article 82, New York now has both supported and surrogate decision-making models for a discrete population: people with developmental disabilities. Surrogate’s Court Procedure Act Article 17-A and Mental Hygiene Law Article 82 stand in stark contrast to one another. Article 17-A results in a plenary adjudication of the need for a guardian with a complete loss of civil rights. Article 82, by comparison, recognizes that “a person’s right to make their own decisions is critical to their autonomy and self-determination” and that people with developmental disabilities “are often denied that right because of stigma and outdated beliefs about their capability.”[44] Given the passage of Mental Hygiene Law Article 82, it is time to amend and modernize Surrogate’s Court Procedure Act Article 17-A. The guardianship statute should provide that, where supported decision-making can meet the individual’s needs, guardianship is to be avoided as unnecessary. Further, because Article 17-A guardianship remains an available remedy in New York, guardians should be informed of supported decision-making and be guided by its principles. Finally, Article 17-A must be reformed to ensure that the constitutional rights of people subject to the statute are protected.

Sheila E. Shea is the director of the Mental Hygiene Legal Service for the Third Judicial Department, and is the co-chair of the New York State Task Force on Mental Illness and Trauma Informed Representation.

[1] Emily Largent, Andrew Peterson, Supported Decision-Making in the United States and Abroad, 23 J. Health Care L. & Policy 271 (2021).

[2] Available at https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html.

[3] Id. Supports will be unique to each individual and may involve “gathering relevant information, explaining that information in simplified language, weighing the pros and cons of a decision, considering the consequences of making – or not making – a particular decision, communicating the decision to third parties, and assisting the person with a disability to implement the decision.” Kristin Booth Glen, What Judges Need To Know About Supported Decision-Making, And Why, 58 No. 1 Judges’ J. 26, 27 (2019).

[4] Largent and Peterson, Supported Decision-Making in the United States and Abroad, supra note 1 at 283–84.

[5] SDMNY was originally composed as a “consortium of Hunter College/CUNY; the New York Alliance for Inclusion and Innovation (formerly NYSACRA), a statewide association of provider agencies; and Arc Westchester, a large provider organization.” https://sdmny.org/the-sdmny-project/history-and-goals/.

[6] See A. 8586; S.7107 (2021).

[7] 2022 N.Y Laws ch. 41.

[8] See U.S. Supported Decision-Making Laws, Supported Decision-Making, https://supporteddecisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions.

[9] Regarding the effective date of MHL Article 82, the chapter amendment provides:

This act shall take effect ninety days from the date that the regulations issued in accordance with section one of this act appear in the New York State Register, or the date such regulations are adopted, whichever is later; and provided that the commissioner of mental hygiene shall notify the legislative bill drafting commission upon the occurrence of the appearance of the regulations in the New York State Register or the date such regulations are adopted, whichever is later, in order that the commission may maintain an accurate and timely effective data base of the official text of laws of the state of New York in furtherance of effectuating the provisions of section 44 of the legislative law and section 70–b of the public officers law.

[10] MHL § 82.02(i).

[11] MHL § 82.02(d).

[12] MHL § 82.02(k).

[13] MHL § 82.05(d). However, a supporter may, if such authority is expressly granted in the SDMA, provide a co-signature together with the decision-maker acknowledging the receipt of statements of rights and responsibilities in order to permit the decision-maker to participate in programs and services that the decision-maker chooses. Id.

[14] MHL § 82.02(m). Facilitators are trained to help decision-makers “map” decisions they are already making, from simple to more complicated or impactful, with the basic structure/process of making any decision essentially the same: gathering information; understanding that information; exploring possible alternatives; considering the consequences of making a particular decision – or not making it; weighing alternatives; communicating the decision to third parties; and implementing the decision. See Cathy Castanzo, Kristin Booth Glen, Anna Krieger, Supported Decision-Making: Lessons Learned from Pilot Projects, 72 Syracuse L. Rev. 99, 147 (2022).

[15] MHL § 82.02(j).

[16] MHL §§ 82.02, 82.09, 82.11, 82.15.

[17] See Kristin Booth Glen, Supported-Decision-Making From Theory to Practice: Further Reflections on an Intentional Pilot Project, 13 Alb. Gov’t L. Rev. 94 (2019–2020).

[18] Cathy Castanzo, Kristin Booth Glen, Anna Krieger, Supported Decision-Making: Lessons Learned from Pilot Projects, 72 Syracuse L. Rev. 99 (2022).

[19] See 42 U.S.C. § 15043.

[20] MHL § 82.10(b).

[21] MHL § 82.10(c).

[22] MHL § 82.12.

[23] MHL § 82.15(a).

[24] MHL § 82.09.

[25] A person shall not be subject to criminal or civil liability and shall not be determined to have engaged in professional misconduct for an act or omission if the act or omission is done in good faith and in reliance on a decision made by a decision-maker pursuant to a duly executed SDMA. Further, any health care provider that provides health care based on the consent of a decision-maker, given with support or assistance provided through a duly executed SDMA, shall be immune from any action alleging that the decision-maker lacked capacity to provide informed consent. Finally, any public or private entity, custodian, or organization that discloses personal information about a decision-maker in reliance on the terms of a duly executed SDMA to a supporter authorized by the terms of the SDMA to assist the decision-maker in accessing, collecting, or obtaining that information, shall be immune from any action alleging that it improperly or unlawfully disclosed such information to the supporter unless the entity, custodian, or organization had actual knowledge that the decision-maker had revoked such authorization (see MHL § 81.12(a)–(d)).

[26] Largent and Peterson, Supported Decision-Making in the United States and Abroad, supra note 1 at 276.

[27] MHL § 82.01(d).

[28] MHL § 81.15; see Morgan K. Whitlatch and Rebekah Diller, Supported Decision-Making: Potential and Challenges for Older Persons, 72 Syracuse L. Rev. 165 (2022).

[29] See e.g., Articles 29-C and 29-CC of the Public Health Law and SCPA 1750-b. Health care agents and other legally authorized surrogates are empowered to act when the principal is deemed to lack capacity upon the examination of a physician or other health care practitioner.

[30]  Castanzo, Glen, Krieger, Supported Decision-Making: Lessons Learned from Pilot Projects, supra note 14 at 157.

[31] See Supported Decision-Making Process and Participant Outcomes Evaluation, Developmental Disabilities Planning Council, https://ddpc.ny.gov/supported-decision-making-process-and-participant-outcomes-evaluation-0.

[32] Id.

[33] Id.

[34] See Nina Kohn, Legislating Supported Decision-Making, 58 Harv. J. Legis. 313 (2021).

[35] MHL § 81.01.

[36] SCPA 1750, 1750-a. An Article 17-A proceeding may also be commenced for a person alleged to have a traumatic brain injury (see SCPA 1750-a(l)).

[37] To elaborate, there is an undue emphasis under Article 17-A that people with developmental disabilities are children forever. For example, Article 17-A also incorporates Article 17 (guardians for minors) by reference (see SCPA 1761: “To the extent that the context thereof shall admit, the provisions of article seventeen of this act shall apply to all proceedings under this article with the same force and effect”). Further, Article 17-A provides that the standard for appointment of a guardian is “best interests,” the same standard applicable to minors in Article 17 (see SCPA 1701: “the court may appoint a permanent guardian of a child if the court finds that such appointment is in the best interests of the child.” (emphasis added)). Finally, there is no required hearing under Article 17 or 17-A of the SCPA (see SCPA 1706, 1754).

[38] Sheila Shea and Carol Pressman, Guardianship: A Civil Rights Perspective, 90 N. Y. St. B. J. 19 (2018).

[39] See November 2021 Report of the Disability Rights Committee (DRC), Guardianship for People with Developmental Disabilities: Examination and Reform of Surrogate’s Court Procedure Act Article 17-A is a Constitutional Imperative. The DRC report has not been reviewed or approved by the NYSBA House of Delegates, but remains a position paper of the Committee.

[40] Id.

[41] See Margaret Valentine Turano, Practice Commentaries, McKinney’s Cons. Laws of N.Y. SCPA 1750: “Admittedly, the Article 17-A guardianship is not for every disabled person . . . On the other hand, the Article 17-A guardianship gives modest families access to affordable judicial process.”

[42] See In re Robert C.B. v. Callahan, 207 A.D.3d 464 (2d Dep’t 2022).

[43] See In re Richard S.H., 2022 N.Y. Slip. Op. 22328 (Surr. Ct., Westchester Co. Oct. 26, 2022). The respondent in this case attended college and graduate school and aspired to a career as a social worker to assist children with autism.

[44] See MHL § 82.01.