“If there are less restrictive alternatives that are sufficient and reliable to meet the needs of the person, guardianship is not warranted."
A New York Surrogate’s Court judge has denied a request to appoint a guardian for a 34-year-old woman with Down syndrome, citing potential human rights threats from overly-restrictive court interventions in the lives of people with disabilities.
New York Law Journal reported in “Noting Human Rights Concerns, Judge Denies Guardianship to Parents of Disabled Adult” that the woman, identified as "Michelle M.," proved she could safely and productively live on her own with weekly supervision from a disability services worker and the help of her friends and family.
Brooklyn Surrogate Margarita Lopez Torres denied a petition filed by Michelle's parents, who asked the court to appoint a plenary guardian under Article 17-A of the Surrogate's Court Procedure Act. Doing so would completely remove their daughter’s legal right to make decisions about her own affairs and would give the guardian total control over her as a disabled person.
The judge said courts must exercise the “utmost discretion” when weighing a guardianship petition. Courts should instead look to impose the least-restrictive terms of oversight. Lopez Torres said the presence of a disability such as Down syndrome doesn’t necessarily form a basis for an individual's guardianship appointment under the Act. To the contrary, depriving disabled people of liberties under an unjustified guardianship is against international human rights conventions, the Americans with Disabilities Act, and the U.S. Supreme Court decision in Olmstead v. L.C.
The judge commented that she's hesitant to apply 17-A partially due to the fact that the statute doesn’t allow courts to limit the scope of the authority afforded to guardians—the guardianship can’t be tailored to the affected individuals.
Lopez Torres described Michelle in her opinion as "vibrant and engaging" and someone who has lived independently since 2008 with two roommates in a publicly-supported apartment. She’s able to conduct her day-to-day life well, including banking, shopping and—until her employer recently moved away—keeping a part-time job in a cellphone supply store, the judge said.
It is important to remember that each case is unique when you are considering the possibility of a guardianship or conservatorship. If you would like to discuss this topic with one of the experienced Colorado elder law attorneys at The Hughes Law Firm, call (303) 409-3547 today.
Reference: New York Law Journal (July 27, 2016) “Noting Human Rights Concerns, Judge Denies Guardianship to Parents of Disabled Adult”