Article 17-A of the Surrogate's Court Procedure Act allows a judge to appoint a guardian to make all health, personal and financial decisions for a person with intellectual or developmental disabilities and traumatic brain injury. These decisions include where to live, where to work, what medical treatment to have, how to spend money, who or whether to marry and other decisions that most people not under guardianship take for granted. Senate Bill S.4983 would protect the rights of people with developmental disabilities and traumatic brain injury!
Over the past several decades, it has become increasingly clear that people with intellectual disabilities, developmental disabilities and traumatic brain injuries have the ability to learn, grow and lead fulfilling lives based on their own interests and values. This extends even to people with the most significant disabilities who will need ongoing support throughout their lives. However, New York State's guardianship law over people with developmental disabilities and traumatic brain injury does not reflect this, and is still based on the archaic belief that a person cannot both need and receive support and exercise self-determination at the same time.
Under Article 17A, a person with a developmental disability or traumatic brain injury can lose the legal right to make choices about some of the most important aspect of life, including where to live, where to work, whether to get married, how to spend money, and who to spend time with. It provides few due process protections to people with these disabilities, and does not allow for the option of a limited guardianship to address someone's individual support needs. In this way, Article 17A is out of step with not only guardianship statutes around the country, but also New York's own guardianship statute for all other people with disabilities (Article 81), and therefore denies New Yorkers with developmental disabilities and traumatic brain injury the constitutional right to due process and equal protection under the law.
Senate Bill S4983 would address these issues by protecting and promoting the right of people with developmental disabilities and traumatic brain injury, with and without guardians, to make their own decisions with the supports they need. Specifically, the legislation would:
- Ensure that before a guardianship is granted all other lesser restrictive options are explored (such as supporting the person to make their own decisions through a health care proxy or power of attorney);
- Limit guardianship only to individuals who have significant impairments in intellectual and adaptive functioning;
- Recognize that people with disabilities who have challenges in one area of decision-making may still have the ability to make decisions in other areas;
- Ensure that guardianship is only granted over specific areas where a person is unable to make decisions;
- Appoint free legal representation to the individual with disabilities to represent the individual throughout the legal proceeding;
- Make sure that the individual with a disability can participate in the guardianship proceeding even if it requires holding court proceedings outside of a court setting where that person is able to participate; and
- Establish a decision-making standard so guardians know to listen to the expressed wants of the person with a disability, and consult and include the person with a disability in the decision-making process.
What else would the bill do?
Remove obsolete and offensive language;
Require guardians to submit annual reports on the status of the person with a disability;
Recognize that a functional assessment of the person's needs is a more accurate assessment of decision-making ability than a medical opinion on whether a person has a disability.
Remove obsolete and offensive language;Allow for guardians to be appointed for a limited period of time;
What won't the bill do?
The bill will not change any guardianship orders issued before the passage of this bill. However, anyone who would like to petition the court to change or remove a guardianship will be protected by the bill's standards.
Action: Urge Senator Seward (1-518-455-3131) to support the rights of people with developmental disabilities and traumatic brain injuries by co-sponsoring S4983.