Should We Be Talking? Beginning a Dialogue on Guardianship for the Developmentally Disabled in New York

This article is offered as framework for beginning a dialogue among practitioners and academics about this two statute guardianship regime in New York state by highlighting the underlying goals of national guardianship reform efforts, the history of SCPA 17-A, and some emerging issues posed by recent interpretations of SCPA 17-A.

New York has two major forms of guardianship for an incapacitated person 1: Article 81 of the Mental Hygiene Law, titled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management” 2 (“MHL 81”) and Article 17-A of the Surrogate’s Court Procedure Act, titled “Guardians of Mentally Retarded and Developmentally Disabled Persons” 3 (“SCPA 17-A”). These two statutes, which had their beginnings in different eras – SCPA 17-A in 1969 4 and MHL 81 in 1992 5 – reflect different motivations and purposes in the approach to guardianships. The authors acknowledge that the term “intellectual disability” has replaced the term “mental retardation” and its derivatives in the federal government and most states, including New York with its renamed Office of People with Developmental Disabilities (OPWDD). However, SCPA 17-A has not been amended to reflect this change. Because this article relies heavily on the language of the statute and its legislative history, it will use the term “mental retardation.” Perhaps changing the terminology of the statute could be the beginning of the consideration of other changes discussed here.


Author(s): Rose Mary Bailly, Charis B. Nick-Torok
Publication Date: 2012
Publisher: Albany Law Review