The judge’s decision reflects the woman’s ability to live on her own with some help and the nature of guardianship as a total removal of individual legal rights.
Citing concerns about the potential for human rights threats from court restrictions in the lives of disabled people, a New York Surrogates Court judge denied the parents’ request to appoint a guardian for a middle aged woman with Down syndrome. Just having Down syndrome is not enough of a basis to deprive an individual of his or her right to make self-directed decisions.
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.
Surrogate’s Court judges and advocates for people with disabilities have argued for a state law that would provide more nuanced and individualized protections to people with disabilities. When 17-A was originally created, it was to give parents of Down syndrome children assurance that their children would be looked after when the parents passed away. Lopez Torres is among surrogates who have been trying to get changes in the statute so that people who are competent do not have their legal rights completely taken away from them.
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