In re Grace J.

77 Misc.3d 367

176 N.Y.S.3d 450

MATTER OF Proceeding for the Appointment of a Guardian for GRACE J., Pursuant to SCPA Article 17-A.

File No. 1990-5329/A

Surrogate's Court, New York, Kings County.

Decided on October 14, 2022

Attorney for Respondent Grace J.: Rebecca S. Kittrell, Esq., Mental Hygiene Legal Service

Carol R. Edmead, J.

Before the court is a guardianship proceeding pursuant to Article 17-A of the Surrogate's Court Procedure Act (Article 17-A) to confirm Angela J. (Petitioner) as guardian of the person of Grace J. (Respondent). Petitioner is Respondent's sister, who was appointed standby guardian in a prior guardianship proceeding in 1991 (File No. 1990-5329). This decision follows a hearing held on May 18, 2022. Present at the hearing were Petitioner, Respondent, and Rebecca Kittrell, Esq. (Kittrell), Principal Attorney at the Mental Hygiene Legal Service (MHLS).

Prior to the hearing, Kittrell filed responsive objections to the petition on the ground that an Article 17-A guardianship is not the least restrictive means available to support Respondent with decision making.¹ Kittrell further objects on the ground that Petitioner may be seeking guardianship in order to move Respondent to another group home, closer to Petitioner's home, against Respondent's wishes and best interests.

The Initial Guardianship Proceeding in 1991

Respondent is a 64-year-old resident of a group home for adults with intellectual disabilities in Brooklyn. In the initial guardianship proceeding, Respondent's parents were appointed her guardians and Petitioner her standby guardian, by decision issued without a hearing by this court dated October 29, 1991. Respondent's appearance was waived by the court. The decision referred to "certificates" from a psychologist and a psychiatrist, but no testimony or other evidence. The decision did not specify what the certificates stated and simply concluded "[t]he court is satisfied on the record before it that the subject of this proceeding is a retarded person within the meaning of SCPA 1750."

The certificate from the psychologist is a one-page, pre-printed form with blanks for name, gender, date of birth, dates of testing, and I.Q. score filled in. The certificate's boilerplate language states that Respondent "was seen for the purpose of evaluating her eligibility for guardianship."

The form further states that Respondent was interviewed and tested, and found to have an I.Q. of 31, which was "in the range of severe mental retardation." The form also states that Respondent "is incapable of managing her affairs independently by reason of her mental retardation" and "[f]urthermore, this mentally retarded person is not capable of understanding court proceeding [sic] by reason of the degree of her retardation, and I recommend that her presence be dispensed with by the court." The form is signed and notarized by the psychologist. The psychiatrist's certificate is the same form used by the psychologist, with the only difference being that Respondent's I.Q. is noted to be 27.

A guardian ad litem (GAL) was appointed for Respondent and the GAL submitted a report consisting of five paragraphs. The first three paragraphs discuss procedural matters, such as reviewing the file for conflicts of interests and completion of jurisdiction. The fourth paragraph states that the GAL read the aforementioned forms, and the fifth paragraph states, "I believe, without reservation, that the Petition should be granted in all respects." There is no mention of the GAL having met with Respondent nor having made any independent inquiry other than reading the two forms.

The Instant Guardianship Proceeding

In the instant proceeding, Petitioner seeks letters of guardianship following her appointment as standby guardian, ostensibly due to the deaths of Respondent's guardians/parents in 2002 and 2009. Prior to the hearing in this proceeding, Kittrell filed an affirmation in response to the petition on behalf of Respondent. Kittrell states that she met with Respondent virtually on April 27, 2022 and explained that Petitioner filed a petition for guardianship of Respondent. Kittrell states that Respondent seemed to understand that Petitioner was seeking to make decisions on Respondent's behalf.

Kittrell further states that the group home staff evaluated Respondent and determined that Respondent was capable of choosing where she wished to reside and she "plainly stated" that she wished to stay at her current group home. When Kittrell asked Respondent where she wished to live, Respondent reiterated that she wished to stay at her current home "with her friends." Kittrell states that the care team was concerned that Petitioner was seeking guardianship "in an attempt to move [Respondent] from Brooklyn to Staten Island, not because it is in [Respondent's] best interest, or because it is what [Respondent] wants, but rather because it would be easier" for Petitioner to visit Respondent.

Kittrell further asserts that "[b]ased on what was shared with me by [Respondent's] residential team about her abilities, as well as the rights conveyed by the Family Health Care Decisions Act, which did not exist at the time the original petition was filed, I do not believe [an Article 17-A] guardianship is the least restrictive available means to support [Respondent] with decision making."

Petitioner submits an Affirmation of Examining Physician from Barrington Burt-Miller, D.O. dated July 20, 2021. Dr. Burt-Miller opines that based upon his evaluations, Respondent has "moderate intellectual disabilities" and that she is incapable of understanding the nature and consequences of health care decisions. Also submitted is an Affidavit of Examining Physician from Richard Cohen, Ph.D., a licensed psychologist, dated July 20, 2021. Dr. Cohen states that he reviewed the results of evaluations conducted by Atara Siegel, M.A. and opines that Respondent is within the moderate range of intellectual disability and incapable of managing her affairs by reason of her intellectual disability.

The report of the psychological evaluation conducted by Siegel under the supervision of Marina Ross, Psy.D., details, inter alia, the results of various testing performed during the evaluation, as well as Respondent's developmental and education history. The summary of the evaluation states that Respondent's overall intellectual functioning was in the "extremely low range" as measured by the Wechsler Adult Intelligence Scales. The summary further states that Respondent demonstrates functioning within the "low range" in the areas of communication, daily living skills, and socialization. Taken together, Respondent's cognitive and adaptive functioning scores meet the criteria for a "moderate intellectual disability."

Article 17-A Guardianship Hearing

At the hearing, Respondent appeared perfectly groomed, in good physical health, and looking much more youthful than her age. Respondent was able to raise her right hand and affirm that her testimony would be the truth. Respondent was very soft-spoken, but seemed to understand all of the questions and answered them, repeating herself when asked. Respondent was able to express herself, albeit in short sentences only, smiled on occasion, exchanged pleasantries, and generally exhibited a very amiable and calm disposition.

When asked where she lived, Respondent stated the street address of the group home where she resides. When asked her age, Respondent stated, "19." When asked if she knew why she was at the hearing, Respondent stated, "I thought for an interview." When asked if she understood what it meant to have a guardian appointed, Respondent stated, "They help. The guardian looks after you."

Respondent testified that at the group home, she helps clean up and wash the dishes. She is able to independently perform hygiene such as brushing her teeth, combing her hair, and getting dressed. Respondent named a few friends with whom she resides at the group home. Respondent described socializing with her friends at the home and "laughing before dinner" together, as well as going outside together for lunch.

Respondent further testified that she sees doctors at the group home. When asked whether she had ever been asked to make a medical decision and whether she was able to make the decision, Respondent replied, "yes." Respondent testified that she takes medications with the assistance of staff at the group home. Respondent also testified that she is treated well at the home and that "they like me." Respondent named all of her siblings and testified that she visits her family at Petitioner's home for the holidays.

Petitioner testified that she is seeking letters of guardianship so long after her parents’ deaths because Respondent obtained new health insurance coverage. Petitioner explained that when she met with the insurance agents, they discussed the possibility of moving Respondent to a new group home. Petitioner also described an incident in 2019, when Respondent was at Petitioner's home and had to be taken to the emergency room. When they arrived, the hospital staff questioned whether Petitioner was Respondent's guardian. The answer being "no," Petitioner had to "beg" the staff to provide care, which they did because it was an emergency. When asked how Petitioner has managed since 2009 without letters of guardianship, Petitioner responded, "I was her advocate, so I was signing everything. Everything that needed to be signed, I signed. But, of course, it's not until I was at the ... emergency room I realized that that's not good enough."

Discussion

Article 17-A of the Surrogate's Court Procedure Act provides for guardianship over a person who is permanently or indefinitely "incapable of managing oneself and/or one's own affairs by reason of an intellectual disability." SCPA 1750(1). Here, this court already ruled that Respondent is a person in need of a guardianship. However, the caselaw and approach to Article 17-A guardianships have vastly evolved since...