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THE MODIFICATION OF THE GUARDIANSHIP ORDER MUST BE IN THE BESTS INTEREST OF THE DEVELOPMENTALLY DISABLED PERSON; HERE THE APPOINTMENT OF STEPFATHER AS LIMITED COGUARDIAN CONSTITUTED A CHANGE THAT WAS NOT IN THE DISABLED PERSON’S BEST INTERESTS BECAUSE CONSISTENCY IN ROUTINE AND REGIMEN WAS PARAMOUNT (THIRD DEPT).

The Third Department, modifying Surrogate’s Court, determined the appointment of the stepfather as limited cogurdian of Jonathan JJ, a developmentally disable adult, was not in Jonathan’s best interests. Jonathan had apparently thrived with his father as guardian and his stepfather had not seen Jonathan since 2009:

… Surrogate’s Court granted the father’s petition for coguardianship of the person and property of Jonathan JJ. along with the Commissioner. The court also appointed the stepfather as a limited coguardian with the ability to attend only the medical appointments of Jonathan JJ. The father appeals, arguing that Surrogate’s Court erred in appointing the stepfather as a limited coguardian.

In order to modify an existing guardianship order, it must be shown that such change would further the best interests of the person who is intellectually or developmentally disabled … . Such a modification is warranted where it is necessary to protect the “‘personal and/or financial interests'” of the person with a disability … , or “as may be deemed necessary or proper for the welfare” of such person … . …

The testimony elicited at the hearing demonstrated that Jonathan JJ. has thrived from consistency in his routine and regimen. In that regard, his outbursts were a primary concern among his treatment providers, and the routine that was put in place, together with management by medical personnel, helped control the outbursts, as well as contributed to other positive physical, medical and cognitive improvements in his life. Matter of Jonathan JJ. (Alan JJ.–Caren KK.), 2022 NY Slip Op 02837, Third Dept 4-28-22

Practice Point: Any modification of an existing guardianship of a developmentally disabled adult must be found to be in the disabled person’s best interests. Here consistency in regimen and routine was paramount. The appointment of stepfather, who had not seen the disabled person since 2009, as limited coguardian was deemed a change that would disrupt the successful regimen and routine.

 

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