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Petitioner Seeks Guardianship of Disabled Sister

Matter of A.F.

2018 NY Slip Op 05590

August 2018

Decision and Order

This is an appeal from a guardianship proceeding pursuant to Surrogate Court Procedure Act art. 17-A. The order denied the petition and the case was dismissed.

This court reverses the prior order, based on the facts of this case and the petition for guardianship pursuant to Surrogate’s Court Procedure Act article 17-A is granted. The cases is remitted to the Surrogate’s Court for entry of a decree naming the petitioner as the guardian of A.F.

The petitioner stated this procedure under Surrogate’s Court Act article 17-A, requesting that she be appointed as the guardian for her sister A.F. At the hearing, the petitioner established that Anna had suffered from a severe intellectual disability her entire life. A.F.’s physician confirmed that she suffers from cerebral palsy and mental retardation. Because of her condition, she requires 24 hour care and is unable to feed herself or move about on her own. Medical evaluations determined that she is non-ambulatory and non-verbal. Using the Bayley scale of infant and toddler development, the evaluation determined that she had the developmental equivalent of a 4 month old.

The petitioner testified that A.F.’s parents had care for her her whole life. They both passed away in 2014. Since then she has had 24 hour care given by medical attendants. The petitioner stated that she was unable to attend to all of A.F.’s needs because she didn’t have guardianship over A.F., specifically in arranging for a lease for her apartment and maintaining her supplemental nutritional program. At the hearing, the petitioner offered a letter from both a physician and a psychologist that both independently concluded that A.F. was unable to care for herself, and her disability was permanent. In the order that was appealed from the Surrogate Court, the court denied the petition. The court stated that a hearing pursuant to Mental Hygiene Law 81 was more appropriate. The petitioner appealed.

The Surrogate Court Procedure Act article 17-A states that the court can appoint a guardian for an intellectually disabled person if that persona has been certified as such, and that person can’t handle their own affairs.

In this case, the record clearly establishes that A.F. is intellectually disabled. It would be in her best interest to have the petitioner act as her guardian. A.F. can’t meet her basic needs, and the petitioner is her only sibling. Without the guardianship, the petitioner is not able to completely manage A.F.’s affairs. Nothing in the record suggests that the petitioner is unable to do so. The petitioner has been handling her affairs thus far, and the Surrogate’s Court should have granted the petition (Matter of Michelle M., 52 Misc. 3d 1211 [Sur Ct., Kings County], (Matter of Mark C.H. 28 Misc. 3d 765, 766 [Sur Ct. NY Cty].

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