Guardianship

Issue:           

In New York State, when a person becomes 18 years old they are assumed to be legally competent to make decision for themselves. However, some individuals with intellectual or developmental disabilities may have difficulty doing so independently. Article 17-A of the Surrogate’s Court Procedure Act was enacted in 1969 to allow parents and family members to continue to have legal responsibility for loved ones with intellectual and developmental disabilities after the age of majority. An Article 17-A Guardianship is very broad and covers most decisions that are usually made by a parent for a child such as financial and healthcare decisions. This continued legal authority recognizes the lifelong nature of intellectual and developmental disabilities, and is essential for families to help their loved ones make critical decisions into adulthood, including decisions on life-sustaining treatment.

The Arc New York recently supported legislation to reform Article 17-A in response to Constitutional concerns raised by surrogate courts that guardianships do not sufficiently recognize the due process rights of people with disabilities. Also based on this concern, Disability Rights New York (DRNY) initiated a lawsuit in federal court to repeal Article 17-A. The Arc New York hoped that its bill would strike a balance between respecting the rights of the individual and giving parents and family members the legal authority to care for their loved one in a manner appropriate to the unique needs of the individual.

Family members rely on Article 17-A to provide the reassurance that sound decisions will be made on behalf of their love one. If Article 17-A were to be repealed, it would imperil critical programming decisions, financial decisions, and health care decision for tens of thousands of people with intellectual and developmental disabilities and their families throughout New York state. Crucial decisions would be made, not by a person’s loved ones, but by strangers serving on the Justice Center’s Surrogate Decision-Making Committee.

If the Health Care Decisions Act, which is embedded in Article 17-A, were repealed as well, it could force families to revisit a period in which people with intellectual and developmental disabilities could not make end-of-life decisions for themselves, potentially subjecting them to needlessly painful, extreme, and futile life-sustaining treatments.

Position:     

We support revising Article 17-A to remedy constitutional concerns. We oppose any legislation that would create an onerous process and burden families with additional legal proceedings and expenses. The ultimate proposal we would support must strike a balance between respecting the rights of the individual and giving parents and family members the legal authority to care and advocate for their loved one in a manner appropriate to the unique needs of the individual. 17-A of the Surrogate’s Court Procedure Act was enacted in 1969 to allow parents and family members to continue to have legal responsibility for their loved ones with intellectual and developmental disabilities after the age of majority. This continued legal authority recognizes the lifelong nature of intellectual and developmental disabilities, and is essential for families to help their loved ones make critical decisions into adulthood, including decisions on life-sustaining treatment.