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Petitioner Seeks Guardianship of Disabled Sister- In re Harper, 2019 NY Slip Op 50333(U) (N.Y. Surr. Ct., 2019)


In this case the Surrogate’s Court considers the whether to grant a petition for guardianship of a person who suffers from intellectual and physical disabilities and is unable to care for herself.

Petitioner Laut appeals the denial of a petition she filed under SCPA Article 17-A for guardianship of her disabled sister. The sister has suffered from severe, permanent disabilities all her life. She suffers from cerebral palsy and mental retardation and requires 24-hour care. She is unable to feed herself, is non-ambulatory, and is non-verbal. Using the Bayley scale of infant and toddler development, the sister has been determined to have a developmental equivalent of a 4-month-old.

The petitioner’s parents had cared for her sister her entire life. However, they both died in 2014. While the petitioner wanted to care for her sister after their parents’ deaths, she stated that she was unable to fully do so because she did not have legal guardianship over her sister. For example, she was not able to arrange for a lease for the sister’s apartment and she was not able to maintain the sister’s supplemental nutritional program. In denying her petition for guardianship, the Surrogate’s Court stated that a hearing pursuant to Mental Hygiene Law 81 was more appropriate.

Mental Hygiene Law Article 81 provides the procedure for the appointment of a guardian to handle a person’s financial affairs or personal needs if the person is incapacitated and would suffer harm because he or she is not able to care for his or her own personal needs or property. On the other hand, the SCPA Article 17-A guardianship is available only for individuals who have been certified as “intellectually disabled or developmentally disabled,” and that person cannot handle his or her own affairs. The Surrogate’s Court can appoint a guardian of the person, of the property, or both.

In this case, the record clearly establishes that the sister is intellectually disabled, that she cannot meet her basic needs. In addition, the petitioner is her only sibling. Without a guardianship, the petition is not able to completely manage her sister’s needs. Furthermore, there is no evidence to suggest that the petitioner is not able to manage her sister’s affairs. The court notes that despite not having the power of being her sister’s guardian, the petitioner has been able to do an excellent job of managing her sister’s affairs.

The court granted the petitioner’s motion to be appointed the legal guardian of her sister pursuant to SCPA Article 17-A.

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