Should We Be Talking? - Beginning a Dialogue on Guardianship for the Developmentally Disabled in New York

Article excerpt

I. INTRODUCTION

New York has two major forms of guardianship for an incapacitated person (1): Article 81 of the Mental Hygiene Law, titled "Proceedings for Appointment of a Guardian for Personal Needs or Property Management" (2) ("MHL 81") and Article 17-A of the Surrogate's Court Procedure Act, titled "Guardians of Mentally Retarded and Developmentally Disabled Persons" (3) CSCPA 17-A"). These two statutes, which had their beginnings in different eras--SCPA 17-A in 1969 (4) and MHL 81 in 1992 (5)--reflect different motivations and purposes in the approach to guardianships.

The authors acknowledge that the term "intellectual disability" has replaced the term "mental retardation" and its derivatives in the federal government and most states, including New York with its renamed Office of People with Developmental Disabilities (OPWDD). However, SCPA 17-A has not been amended to reflect this change. Because this article relies heavily on the language of the statute and its legislative history, it will use the term "mental retardation." Perhaps changing the terminology of the statute could be the beginning of the consideration of other changes discussed here.

SCPA 17-A is "'a simple guardianship device, based upon principles of in loco parentis'" (6) by which a court can appoint a guardian for an individual based on a diagnosis of mental retardation, (7) developmental disabilities, (8) or traumatic head injury. (9) In contrast, MHL 81, "the most modern form of guardianship created under New York State law," (10) is a more complex statute. Under MHL 81, the court appoints a guardian with authority tailored to the needs and functional limitations of the incapacitated individual, rather than basing its decision on the individual's particular diagnosis. (11)

A practitioner considering the appointment of a guardian for an individual with mental retardation or a developmental disability is confronted with a choice between statutes with two distinct views of guardianship. The difficulties in making this choice have become apparent in recent cases comparing the statutes' relative merits. These cases highlight significant differences between the statutes and illustrate the ambiguities about the scope and jurisdiction inherent in co-existing statutes. (12)

While the response to these differences and ambiguities might be to "modernize" SCPA 17-A or fashion one statute out of the two, at least two barriers currently exist to such solutions. The first one, and perhaps the more difficult to overcome, is that many advocates are opposed to abandoning separate treatment for individuals with mental retardation and developmental disabilities, particularly for those individuals whose disabilities are profound. (13) Their position is bolstered by the legal principle that treating individuals with developmental disabilities differently from others in the community is constitutionally permissible in certain circumstances. (14) The second barrier, which also cannot be discounted, is the relative ease and modest cost of commencing an SCPA 17-A guardianship proceeding. (15) Notwithstanding those barriers, several recent developments suggest the possibility of opening a dialogue about whether changes to SCPA 17-A could benefit individuals with developmental disabilities while preserving much of the statute's original intent.

The first development is a series of amendments to SCPA 17-A beginning in 2002 that for almost eight years left a wide disparity between SCPA 17-A guardians and MHL 81 guardians regarding end-of-life decision-making. The 2002 SCPA 17-A amendment clarified the authority of a guardian of an individual diagnosed with mental retardation to make health care decisions, including end-of-life decisions, (16) based on the best interest of the individual. (17) While the statute's previous silence on health care decisions (18) may have been consistent with the notion of a guardian acting "in loco parentis," the 2002 amendment recognized that a medical provider needs certainty regarding the authority of either a parental guardian or an unrelated guardian. …