Alternative Guardianships Protect the Rights of Vulnerable Clients

By Rebecca Melnitsky

February 26, 2024

Alternative Guardianships Protect the Rights of Vulnerable Clients


By Rebecca Melnitsky

Vulnerable clients need not submit to traditional, restrictive guardianships. When individuals are unable to make their own decisions, a proxy or a guardian can make decisions on their behalf. At a program presented by the New York State Bar Association, experts detailed three alternatives to traditional Article 17-A guardianships.

The panelists were:

  • Kristin Booth Glen, former judge at New York County Surrogate’s Court and dean emerita at CUNY School of Law.
  • David H. Guy, judge at Broome County Surrogate’s Court.
  • Yi Wang Stewart, estate litigation associate at Farrell Fritz.
  • Tara Anne Pleat, founding partner at Wilcenski & Pleat and past chair of the Elder Law and Special Needs Section.
  • Sheila E. Shea, director of the Mental Hygiene Legal Service.

New York Mental Hygiene Law Article 81 has a standard for the “least restrictive form of intervention” – meaning that when guardianship is necessary, the goal is to preserve an individual’s independence and self-determination as much as possible.

One-Shot Guardianships

One-shot guardianships can be used in cases where a quick, temporary solution is needed for a specific issue. The provision is found in section 81.16(b) of New York Mental Hygiene Law.

Shea provided one such example from her practice, in which an autistic 18-year-old was going through treatment for leukemia at a hospital in Boston. The hospital would not let the young man consent to a bone marrow transplant.

“And the reason the hospital offered for this refusal was because this young man has autism,” said Shea. “The hospital instructed the mother that if she wanted her son to receive this treatment from this particular hospital, she would need to secure guardianship. She didn’t feel her son needed a guardian, and she was reticent to do this, but she also had a son in desperate need of care.”

Shea’s office managed to get the hospital to accept a limited, special guardianship. “The examples that we’re providing to you are not hypothetical or theoretical, they are quite real,” she said. “The ability to commence this case, I feel, saved this young man’s life – in the sense that a vehicle was created for his mother to exercise his authority with a minimal intrusion on his liberty [and] rights.”

Guardianship on Consent

Guardianships on Consent are meant to help individuals with certain issues or compensate for a lack of resources. In these cases, an individual agrees to the appointment of a guardian to help manage their affairs and can have a role in picking the individual who serves as their guardian.

Guy oversaw the case of a woman who was in the hospital for 90 days and was nearing release. “She was a lot better than she was when she came into the hospital,” he said. “The last time the hospital had assessed her for ability to consent to treatment was in October, so she had come a long way under the hospital’s care, as people do.”

The woman was part of a religious organization, and her friends within the organization had helped her throughout the years. She wanted those friends to continue helping her. “Well I knew, because I’d had an attorney conference, that the friends were tired,” said Guy. “They didn’t feel like they were in a position to continue to do this for this lady.”

Guy communicated this to the woman, explaining that her friends wanted to just be her friends and not be responsible for taking care of her direct needs, like paying bills. He suggested the local Department of Social Services as an alternative, and she consented to the agreement.

Supported Decision-Making

“[Supported Decision-Making] mostly comes from our common experience of how we make decisions,” said Booth Glen. “We don’t make decisions – especially big decisions – without consulting other people and getting support. Whether it’s talking to family members, using Google to do research, or consulting experts… So, we all do it. It’s just the people with [intellectual and developmental disabilities] may need more or more intense support, but it’s a practice that we all engage in.”

With supported decision making, individuals with a disability can make their own decisions with the assistance and guidance of trusted supporters. Agreements can be formal or informal, with the option of a written agreement detailing the parameters.

Booth Glen also noted that Supported Decision-Making respects the human right of every person to make their own choices – regardless of disability – derived from the UN Convention of the Rights of Persons with Disabilities. (The United States has signed but not ratified the treaty, which is modeled on the Americans with Disabilities Act.)

Supported Decision-Making has been codified in Article 82 of the New York Mental Hygiene Law.

A Family Helped Through Supported Decision-Making

Stewart explained how she had helped one family with the process. In this case, the parents of an autistic child in New York City were going to go for full guardianship once the child turned 18. During a home visit, Stewart was impressed by the child’s ability to manage food allergies and navigate public transportation and suggested that the family go for a Supported Decision-Making arrangement instead.

It took nearly two years to finalize a Supported Decision-Making agreement, but in the end the individual felt empowered to make own decisions and was excited for the future, while the parents were glad that there was a community of people to support their child.

“In addition to understanding the needs and limitations of our wards, we are also obligated to assess whether guardianship constitutes the least restricted form of intervention,” said Stewart. “And in determining whether guardianship is necessary, and is in our ward’s best interest, we must understand what they can and cannot do. So when applicable, we need to inform the petitioners of alternatives to guardianship.”

The event was sponsored by the Committee on Disability Rights, Elder Law and Special Needs Section and Trusts and Estates Law Section. Watch the full program here.

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