Opinion
No. 2015-2785/A
10-26-2022
In the Matter of the Petition of Richard S.H. and ELISABETH J.K., Guardians of the Person and Property of Reed D.K.H., To Terminate the Guardianship Pursuant to SCPA §§ 1755 And 1759.
Littman Krooks LLP Mental Hygiene Legal Service
Littman Krooks LLP
Mental Hygiene Legal Service
HON. BRANDON R. SALL, WESTCHESTER COUNTY SURROGATE
In this guardianship proceeding brought pursuant to §17-A of the SCPA, Richard S. H. ("Richard") and Elisabeth J. K. ("Elisabeth"), as guardians of the person and property of their son, Reed D. K. H. ("Reed"), petition this court for the dissolution of the guardianship of Reed, the revocation of the letters of guardianship decreed to them and the restoration of Reed's full legal capacity. For the reasons set forth below, the relief requested in the petition is granted.
The facts relevant to this petition are as follows:
Background
On October 10, 2015, when Reed was just 18 years of age, Richard and Elisabeth filed a petition seeking a decree awarding them SCPA §17-A guardianship of the person and property of Reed. In support of that application, the court had before it the affidavit of Glenn Kreielsheimer, Psy.D. and the affirmation of Alice Jo Siegel, M.D., both of which basically stated, among other things, that Reed suffered from Asperger's Syndrome and other related issues. They also wrote that the key issues on which Reed required assistance, development and treatment were adaptive, social and emotional behavior, effective learning tools, and creation of more extensive support systems.
The court appointed Mental Hygiene Legal Service ("MHLS") as a guardian ad litem for Reed. The attorney for MHLS performed a thorough investigation and determined that, in his view, the relief requested by Richard and Elisabeth should be granted. The court submitted the application for decision and decree, and on May 3, 2016, the court appointed Richard and Elisabeth the SCPA §17-A guardians of the person and property of Reed.
This Petition
Circumstances have changed. On May 3, 2022, when Reed was about 24½ years old, six years after the decree of guardianship issued, Richard and Elisabeth submitted this petition to vacate the guardianship decree. The record before the court reflects the following:
Reed
On the return date of the petition, Reed explained to the court his journey and why he feels that he is now in a position to exercise agency over his own person and property. He states that, after he graduated from the Chamberlain International School (in Middleborough, MA), a therapeutic boarding school, and Mamaroneck High School, he began to make great progress towards higher and better functioning in school and in the every-day and ordinary behaviors required of adult life.
After high school, Reed attended Landmark College ("Landmark") in Putney, VT. Landmark is an accredited college that offers academic support for special needs students. It was at this time Reed explained that he no longer needed to attend a therapy program but only needed a program directed towards academics. After two years at Landmark, he enrolled in Manhattanville College ("Manhattanville") in Purchase, NY. There, he studied many subject areas concentrating in the social sciences and humanities, and he decided that he wanted to be a social worker to work with children with autism. After three years at Manhattanville, in the Spring of 2021, Reed graduated with a B.A. in World Religions. In the Fall of 2021, Reed matriculated at New York University Silver School of Social Work ("NYU") in the master's program. He continues to use the tutor who assisted him at Manhattanville in his studies at NYU for three hours per week. His transcript for his first semester at NYU reflects two As, one A- and a Pass.
Reed described that, on an average day, he gets up, gets dressed, packs his lunch and goes to school or work. When he gets home, he makes dinner for himself and, on occasion, he makes meals for his family. After dinner, he does schoolwork, exercises, showers and goes to sleep. Reed has a learner's permit, and he has been taking a driving course in order that he can obtain a driver's license.
Further to his ability to independently manage his life, each day, Reed carries a wallet which contains his university identification card, credit cards, insurance card and cash, and he also carries his own set of keys.
As to his medications, Reed noted that he takes five prescription medicines daily without prompting, that he has the drugs filled at CVS in Larchmont, and that his physician has been able to reduce the dosage on one of the medications. He schedules his own medical appointments, including those with his therapist and psychologist.
Reed gave the following example of how he pays attention to his health: realizing that his vision seemed to be impaired, he spoke to Elisabeth and his physicians and then he did his own research on his symptoms, finding a specialist that he ultimately went to with Elisabeth who solved the problem by making an adjustment to his medications.
Additionally, Reed explained that because he is still young and not experienced with complex social interactions, he relies on Elisabeth to assist and guide him. However, it is his goal is to eventually move out of his parents' home. He understands that he will need to pay bills for rent and utilities and other items, and he states that he is developing the skills to manage money by researching deals, comparing prices and checking receipts.
Reed engages in fieldwork for school as an intern tutoring elementary school students, spending time with senior citizens and working with children with special needs. Some of the tasks that Reed performs at his work include obtaining supplies, negotiating pricing for the supplies, acquiring funding for projects and managing budgets.
Richard and Elisabeth
Elisabeth and Richard state that the guardianship should be terminated because it was no longer in Reed's best interest to maintain it, and he has ample support from his family and his community to assist him in decision-making. They state that should the court vacate the guardianship decree; Reed will execute health care proxy and power of attorney agreements.
The Medical Professionals
Dr. Kreielsheimer, one of the doctors who had filed a certification in support of the initial guardianship petition submitted a letter in full support of the termination, explaining that he began working with Reed when he was in the ninth grade, that he has witnessed his progress during this time, that, as a pre-adolescent and young teenager, Reed had significant issues with functioning successfully academically and socially, and that he has developed a significant understanding of himself and the world in which he lives and an ability to manage the demands of his daily life. Dr. Kreielsheimer concludes by stating "his maturation has been nothing short of remarkable".
Amy Silverman, M.D. submitted a letter in support of the application which confirmed that Reed makes and manages his appointments with her and communicates with her without assistance.
MHLS
The court appointed MHLS to represent Reed's interest in this proceeding. The MHLS attorney investigated the circumstances surrounding the application, and she recommends that the relief sought in the petition be granted. In fact, the attorney has stated that
Reed has demonstrated the ability to act independently in managing his personal and financial affairs. Reed is not reliant on his parents, who continue to act as a support, but no longer appear to make decisions on Reed's behalf. The letters of guardianship that are currently in place are no longer in Reed's best interest but in fact hinder any further independence that Reed and [his parents] want him to achieve.
Analysis and Conclusion
SCPA article 17-A guardianship is plenary, resulting in a total deprivation of an individual's liberty (see SCPA §§1750, 1750-a, 1750-b; see also Matter of Michael J.N., 58 Misc.3d 1204 [A], 2017 NY Slip Op 51925[U] [Sur Ct, Erie County 2017]; Matter of Caitlin, NYLJ, April 29, 2017 at 31 [Sur Ct, Kings County 2017]).
Guardianships decreed in accordance with SCPA article 17-A are unlike those granted under Article 81 of the Mental Hygiene Law because the latter can be tailored to suit the individual needs of the person.
The standard for whether a decree of guardianship should issue in the first instance for an intellectually and/or a developmentally disabled person is set forth respectively in SCPA §§1750 and 1750-a. In accordance with the statutory provisions, a determination must be made by the court that the individual has an "impaired ability to understand and appreciate the nature and consequences of decisions which result in such person being incapable of managing himself and/or his affairs by reason of intellectual disability [and/or developmental disability] and that such condition is permanent in nature or likely to continue indefinitely."
SCPA §1759 states that a person for whom an article 17-A guardianship has been established may petition the court to have the guardianship dissolved. To have guardianship letters revoked, an article 17-A ward, such as Reed, bears the burden of establishing that the guardianship is not in his best interest, with the determination of what is in his best interest committed to the court's discretion (see SCPA §1751; SCPA §1750-a; see also Matter of Michael J.N., 58 Misc.3d 1204).
In determining whether the termination of a guardianship is in the best interest of the individual, courts have considered whether it is the least restrictive means to preserve and protect the rights of the person (see Matter of Michael J.N., 58 Misc.3d 1204).
It is the official policy of New York State to promote and to facilitate the "independence, inclusion, individuality and productivity" of persons with intellectual and developmental disabilities (MHL §13.01).
There are only a few reported cases in which a decree of §17-A guardianship has been revoked and an individual restored to his full rights under the law. For example, in Matter of Stephen S.C., 63 Misc.3d 725 [Sur Ct, Westchester County 2019]), this court found that SPCA §17-A guardians were no longer warranted for an intellectually and developmentally disabled man because less restrictive means for support were appropriate and available. The record demonstrated that Stephen had gained greater independence since moving to a group home, demonstrated in the record by his ability to obtain and sustain employment, manage a bank account, maintain a social life, travel independently, take care of his hygiene, and engage with a supported decision-making network.
Even more recently in Matter of Robert C.B. (68 Misc.3d 704 [Sur Ct, Dutchess County 2019], reversed in part, 207 A.D.2d 464 [2d Dept 2022]), the court terminated the SCPA §17-A of the guardianship over the person of Robert, a 23-year-old man with Asperger's Syndrome, finding that it was in his best interest to restore his right to manage his personal affairs without the oversight or control of a guardian of the person. There, the record reflected, among other things, that: (1) Robert graduated from high school with a Regents diploma; (2) he successfully transitioned to independent living; (3) he held down two jobs where he operated with minimal supervision; (4) he managed his personal schedule without assistance; (5) he did his own shopping and meal preparation; and (6) he managed his medical appointments and medication The court, in its discretion, based on the record before it, denied that part of the petition which requested termination of the property guardianship.
However, the order was appealed, and in Matter of Robert C.B. (207 A.D.3d 464 [2d Dept 2022]), the Second Department found that the Surrogate's Court erred in not granting that part of the application which requested termination of Robert's property guardianship. In doing so, the court wrote:
The petitioner established that he did not have a disability as defined in SCPA article 17-A, as his evidence showed that his ability to "understand and appreciate the nature and consequences of decisions" was not impaired (citations omitted).
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As to managing his finances, at the time of his testimony, his bills were all up to date.... [He] demonstrated that he understood and was able to manage his own finances despite having made a poor decision in purchasing a car with an inflated purchase price and exorbitantly high interest rate.
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Rather than showing that the petitioner lacked an understanding of consequences, this evidence showed that he evaluated his circumstances, researched the options available to him under those circumstances, learned through experience that he had made a poor financial decision, and took steps to minimize the negative consequences arising from that decision.(Matter of Robert C.B., 207 A.D.3d at 466-67).
In Matter of Dameris L. (38 Misc.3d 570 [Sur Ct, NY County 2012]), the husband/co-guardian of a §17-A ward petitioned the court to revoke the guardianship letters issued to him and to the ward's mother. Because the record before it reflected that Dameris L. was able to make her own decisions (albeit sometimes with the assistance of family and community support), the court terminated the guardianship and restored her legal rights.
In doing so, Surrogate Glen wrote that "New York courts have embraced the principle of least restrictive alternatives" and that the
legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same, time permits them to exercise the independence and self-determination of which they are capable.(Matter of Dameris L., 38 Misc.3d at 577 [citations omitted]). The court also noted that the "legal remedy of guardianship should be the last resort for addressing an individual's needs because it deprives the person of so much power and control over his or her life" (id., [citations omitted]).
In Matter of Michael J.N. (58 Misc.3d 1204, 2017 NY Slip Op 51925[U]), the Surrogate's Court found that vacatur of the decree of guardianship and revocation of the letters issued to Michael's parents were in Michael's best interest. In vacating the decree, the court relied on the record before it, which demonstrated that Michael's adaptive skills, as supported by his placement in a group home, enabled him to make health care decisions and to perform his daily living tasks without a guardian. The court noted that an individual's best interest must include an assessment of his functional capacity and what he can or cannot do in managing daily affairs (see also Matter of Gulielmo (NYLJ, Nov. 13, 2006 at 23, col.1 [Sur Ct, Suffolk County] [article 17-A guardianship dissolved where the record demonstrated that the individual currently was capable of conducting all activities of daily living]).
Cases where courts have refused to appoint an article 17-A guardian in the first instance also are instructive on this issue. In Matter of Caitlin (NYLJ, April 13, 2017 at 31), the court, in denying the petition for SCPA 17-A guardianship, stated that, where less restrictive alternatives were available, such as a durable power of attorney, a health care proxy, and community support services, it was not in Caitlin's best interest to have a guardian appointed for her and to have her "decision-making authority supplanted, regardless of good intentions and a desire by [her] family to protect [her]." In Matter of Hytham (52 Misc.3d 1211 [A], 2016 NY Slip Op 5113[U] [Sur Ct, Kings County]), a petition for guardianship was dismissed where the individual, although intellectually in the borderline delayed range, was able to independently handle, among other things, money, purchases, grooming and cooking.
The record before this court demonstrates that Reed has made extraordinary progress since 2015. He has not only graduated from an accredited college but he is obtaining a master's degree from a renowned university, and he is excelling there. Reed has been able to obtain and sustain employment, manage his daily affairs, and engage with a supported decision-making network. Since Reed has made these remarkable strides and because he has a system of supported decision making in place (and knows when he should rely upon it), lesser restrictive alternatives are available to plenary guardianship.
Based on the substantial record before this court which demonstrates that Reed has successfully met his burden that the guardianship is no longer in his best interests, the petition is granted, and the decree dated May 3, 2016, is vacated; the SCPA § 17-A guardianship of Reed is terminated; the letters of guardianship issued to Richard and Elisabeth are revoked; and Reed's full legal capacity is restored.
Richard, Elisabeth and Reed now should proceed to put the health care proxy and the power of attorney in place, and Richard and Elisabeth are directed to account for their proceedings as guardian of Reed's property in an expeditious manner.
THIS IS THE DECISION AND ORDER OF THE COURT
The papers relied on are as follows:
1. Citation returnable on August 3, 2022; 2. Petition filed on May 3, 2022; 3. Affidavits of service filed on July 5, 2022 and July 8, 2022; 4. Waivers and consents filed on May 3, 2022; 5. Affidavit of Reed H. with exhibits annexed filed on May 3, 2022; 6. Affirmation of Amy C. O'Hara, Esq. filed on May 3, 2022, with exhibits annexed; and 7. Affirmation of Katherine B. Davies, Esq. filed on August 1, 2022.