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April 25, 2023

Recap of Fourth Forum in Albany Law School's 2023 Disability Law Series: Civil Rights and Individuals With Developmental Disabilities

The fourth forum in the 2023 Disability Law Series: Civil Rights and Individuals With Developmental Disabilities, sponsored and developed by Albany Law School’s Government Law Center and Institute for Aging and Disability Law, took place on March 30. The forum, “Civil Rights Challenges in Guardianship and Strategies to Address Them,” was a panel comprised of Rose Mary Bailly, adjunct professor of law at Albany Law School and overseer of the Institute for Aging and Disability Law at the Government Law Center; Julie Friedman, principal attorney at the Third Judicial Department’s Mental Hygiene Legal Service (MHLS); Lisa K. Friedman, attorney at the Law Office of Lisa K. Friedman; Hon. David Guy, Broome County Surrogate’s Court judge; Kathryn E. Jerian ’07, chief operating officer and general counsel at the Arc of New York; and Christopher Lyons, chief executive officer at AIM Services, Inc. Introducing the forum was Hon. Leslie Stein, retired Court of Appeals judge and current director of the Government Law Center. Moderating and introducing the panel was Lawrence R. Faulkner, retired general counsel at the Arc Westchester and former chair of the New York State Bar Association Health Law Section. 

Faulkner’s introductory remarks noted that New York has two guardianship statutes, one of which is Article 17-A of the Surrogate’s Court Procedure Act (SCPA), which was enacted in 1969 and remains largely untouched, except for the removal of the term “retarded” in recent years. Prior to the act’s passage, parents of minors with intellectual and developmental disabilities (I/DDs) had an extremely difficult time finding educational services for their children, leading to the formation of the New York State Association for the Help of Retarded Children, Inc. (NYSARC, Inc.), which rebranded to the Arc New York in 2017. Many children with I/DDs simply stayed at home or were sent to “state schools” (developmental centers, which were overcrowded and understaffed institutional settings). Article 17-A became a point of leverage for parents to seek and find services for their children upon reaching the age of majority. Measurably, clinical concepts of community integration along with the language employed, have evolved and improved over the last 50-plus years. Faulkner posed an initial question to the panelists: Is SCPA Article 17-A still appropriate for people with I/DDs?

Bailly noted that the civil rights most impinged upon by the statutes are those empowering people to function independently and make their own day-to-day decisions. Both guardianship statutes (Mental Hygiene Law Article 81 and SCPA Article 17-A) are restrictive, and both can be and sometimes are applied to people with I/DDs.

Julie Friedman framed her perspective as that of a guardian ad litem (in Article 17-A guardianship cases, the MHLS is routinely appointed by the surrogate to investigate and report to the court on the contents of the petition). She stated that Article 17-A is “diagnosis-driven” as opposed to being driven by an assessment of function; that it was likely intended for young adults with severe or profound functional and intellectual impairments; and that, in failing to require a court hearing in parent-initiated proceedings, the proposed ward is likely unaware of the results. Friedman characterized Article 17-A as a “blunt instrument.” 

Lisa Friedman identified another set of problems with Article 17-A guardianship. In widespread cases, many local school districts and the state education department routinely advise parents of children aging out of their educational programs that they need to obtain guardianship in order to successfully access adult services and needs-based financial supports for their child. 

Hon. Guy explained that, in areas of Upstate New York, the position of surrogate devolves upon a single judge who also handles family court and county court criminal matters. Many lack permanent assigned clerks for guardianship. Also common in areas of Upstate New York is the arrangement in which Hon. Guy participates—he acts as the assignee of both Article 81 and 17-A guardianship petitions for a multicounty area. Surrogates often confer and discuss the constitutional disparities between the statutes, including lack of hearing rights, plenary removal of rights, and a clinical diagnosis evidentiary standard rather than nature and severity of disability.

Jerian noted that the Arc of New York is the state’s largest provider of supports and services to people with I/DDs and is also a corporate entity empowered by the SCPA and its corporate certificate to act as 17-A guardian of the person (a role it fulfills for roughly 800 persons at present). She explained that the Arc was the lead proponent of 17-A guardianship long before Article 81 existed in its current form. She listed an array of decision-making bodies and processes that currently exist for decisions on behalf of persons lacking capacity to make them. Acknowledging the criticisms of Article 17-A guardianship, she stated that due to inflation, wages, and the state of the economy, the entire private system of supports and services to people with I/DDs is “stressed.” Despite that, the Arc has provided a better, more evolved system for Article 17-A guardianship, largely undertaken by volunteer members of the Arc in local chapters. The Arc supports revision to and updating of Article 17-A, including “tailoring” guardian powers and authority.

Lyons drew upon both his experience as CEO of a large provider and many years as an attorney litigating matters involving the civil rights of persons with I/DDs. AIM Services also has corporate authority and provides Article 17-A guardianship of the person. He pointed out that the paradigm of clinical and practical thinking has shifted over the years from “control” to “support.” Lyons offered that the system of supports and services overseen by NYS OPWDD and funded by a mixture of federal and state needs-based programs is so complex that it is rendered inaccessible to people with I/DDs without the empowered support of a guardian. He also noted that Article 17-A in its present form retains that element of control that bears scrutiny.

Faulkner posed a second question to the panel involving alternatives and reforms to Article 17-A. Bailly, who also chairs the NYS Law Revision Commission, responded that the LRC has discussed reforms including: systemic reexamination of Article 17-A guardianship at set intervals, requiring that an Article 17-A order contain a finding that all less-restrictive alternatives to guardianship have been considered and determined unsuitable, and time-limited personal guardianships.

Jerian opined that there is a need to educate parents and families concerning alternatives to guardianship. Some wards, when consulted, want a guardian or want a guardianship to continue. Hon. Guy suggested that the requirement of consent by the ward, based upon counseling to parents and family on alternatives, should include supported decision-making. He stated that some surrogates require periodic reporting by personal guardians, and Hon. Guy routinely counsels parents, families, and advocates on these alternatives.

Julie Friedman argued for reforms, including time-limited and authority-limited Article 17-A guardianships, a provision for limited property guardians, and provisions to assist a person through single events such as an illness or course of treatment for an illness. As to other guardianship limitations, she cited the need for thorough consideration of resolving conflicts between co-guardians, how to set times for review or expiration of a guardianship order, and who bears the onus to seek review or termination.

Hon. Guy and Bailly exchanged views on the creation (administrative or statutory) of a “guardianship part” in the court system to include both Article 81 and Article 17-A guardianships. Hon. Guy would support that conditioned upon basic governance conferred on surrogates rather than on the NYS Office of Court Administration.

Faulkner, reminding the panel of the lack of any reporting requirements for Article 17-A personal guardians, asked for ideas for oversight. Each panelist responded briefly, and their ideas included: training and education for petitioners and proposed standby guardians, required attorney advice and explanations to petitioner clients, virtual interviews, outsourced training and oversight, annual submission of wards’ life plans by service providers, and paying personal guardians for reporting, interviews, and other additional responsibilities.

This blog was authored by Paul Kietzman, retired of counsel at Barclay Damon. If you have any questions regarding the content of this blog, please contact Melissa Zambri or Margaret Surowka, co-leaders of the Health & Human Services Team, at and, or Linda Clark, Health Care Controversies Team leader, at  

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