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SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined that the petition under the Surrogate’s Court Procedure Act seeking the appointment of a guardian should have been granted. Petitioner is the sister of a severely disable person, Anna. Petitioner established Anna could not care for herself and the appointment was necessary to manage Anna’s affairs. Surrogate’s Court erroneous dismissed the petition, finding that it should have been brought under the Mental Hygiene Law:

Pursuant to article 17-A of the Surrogate’s Court Procedure Act, “the court is authorized to appoint a guardian of the person [who is intellectually disabled] . . . if such appointment . . . is in the best interest of the person who is intellectually disabled.” Under the statutory scheme, a person is intellectually disabled if that person has been certified by, among other possibilities, one licensed physician and one licensed psychologist “as being incapable to manage him or herself and/or his or her affairs by reason of intellectual disability and that such condition is permanent in nature or likely to continue indefinitely” … .

Here, the record establishes that Anna is intellectually disabled within the meaning of Surrogate’s Court Procedure Act article 17-A. Further, the record also establishes that it would be in Anna’s best interest to have the petitioner appointed as her guardian. The record shows that Anna is incapable of providing for her most basic needs and that in the absence of court-authorized guardianship, the petitioner, Anna’s only sibling, is unable to adequately manage Anna’s affairs. Nothing in the record suggests that the petitioner is unqualified to act as Anna’s guardian. To the contrary, despite the legal limitations she has encountered, the petitioner has been managing Anna’s affairs and providing for Anna since their parents’ deaths. Matter of Anna F., 2018 NY Slip Op 05590, Second Dept 8-1-18

TRUSTS AND ESTATES (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))/GUARDIANSHIP  (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))/MENTAL HYGIENE LAW (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))

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