Скачать или смотреть Choosing the Right Kind of Guardianship for Mentally Ill (Art. 17-A vs. Art. 81) : Matter of Chaim

In this video, we discuss the case of Matter of Chaim, which addresses whether Article 17-A guardianship is appropriate for a mentally ill person. A must watch for all elder law practitioners, estate planners, family of mentally ill persons, family of developmentally disabled persons, and all who enjoy learning about real civil/elder law cases.

Case Name: Matter of Chaim
Citation: 2009 NY Slip Op 29384 [26 Misc 3d 837] (Surrogates Court, NY County, 2009) (https://www.nycourts.gov/Reporter/3ds...)
Publication Date: 09/21/09
Issue: Is an Article 17-A guardianship appropriate for a mentally ill person who is also developmentally disabled?

Key Parts of the Decision:

Overall Issue: "[...] to what extent do the shortcomings of article 17-A of the Surrogate's Court Procedure Act require that it be narrowly construed where mental illness, as well as mental retardation or developmental disability, may be the reason a guardian is required."

Overall Holding: "New York currently provides two distinct statutory schemes under which a personal or property guardian may be appointed for, and exercise power over, a disabled adult: article 17-A of the Surrogate's Court Procedure Act and article 81 of the Mental Hygiene Law. Chaim's parents have chosen to pursue an article 17-A guardianship for several reasons. It is thought to be faster than article 81; petitioners are often pro se, and the combination of simplified forms, service requirements, and assistance by the clerks in Surrogate's Courts mean that a lawyer is not necessary, an important factor for petitioners like those here for whom such an expense is daunting, if not prohibitive."

"As is apparent on the face of the two statutes, article 17-A is almost purely diagnosis driven, while article 81 requires a more refined determination linking functional incapacity, appreciation of danger, and danger itself.[FN13] This is not the only way in which they differ. The distinctions reflect, at least in part, a decades-long increasing sophistication about mental disabilities as well as an expanding constitutional framework through which the rights of mentally ill persons are protected."

"Unlike article 81, article 17-A provides no gradations and no described or circumscribed powers. Given a finding of either mental retardation or developmental disability, inability to care for one's self (making no distinctions between what the subject of the proceeding can and cannot do) and the amorphous "best interests standard," a guardian is appointed with seemingly unlimited power, much like the old conservator and committee. There is no statutory guidance as to the extent of this{**26 Misc 3d at 845} power, and surprisingly little case law explication. Because of the wide [*8]range of functional capacity found among persons with diagnoses of mental retardation and developmental disability, the powers granted to provide protection to an article 17-A ward may also need to vary, at least to meet the constitutionally mandated standard of least restrictive means."

"Without assessing the constitutionality of these procedural differences, it should be noted that article 81 affords the AIP substantially more procedural protection and, as well, affords the court greater opportunity to make a nuanced determination of the proposed ward's functional [*10]capacities and the possible trajectory of her condition. As discussed below, this procedural lacuna is one reason for denying the instant petition."

"This failure of proof prohibits the appointment of an article 17-A guardian. At the same time, it suggests that an article 81 guardian is more appropriate, given the differences in the statutory schemes. As the reports in evidence demonstrate, without underestimating the difficulties, Chaim's condition is susceptible to medication and he has the potential, if so far unrealized, for a relatively productive and independent life. More significantly, this case illustrates the need for caution in article 17-A proceedings, and the constitutional necessity of strictly confining the provisions of that article to those specific disabilities which it encompasses."

"While Chaim may require a guardian, especially, as he himself acknowledges, to make medical decisions, he does not need, nor{**26 Misc 3d at 850} would it be appropriate to appoint a guardian with total, unfettered power over his life, the only choice available under article 17-A. Further, changes in his circumstances, whether as a result of different or improved medications or otherwise, may require altered powers in the guardian or perhaps even, someday, no guardian at all. The periodic reporting provisions and underlying autonomy-enhancing spirit of article 81 keep these possibilities open to the appointing court, while article 17-A, with its assumption of permanence and unchangeability, does not."

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