The Arc New York Guardianship Program
MISSION The Arc New York’s Corporate Guardianship Program offers a continuum of services for individuals with I/DD and other disabilities who require various levels of advocacy and supports for decision-making. This is done in the least restrictive manner while promoting their individuality, autonomy, dignity, and self-worth. The Corporate Guardianship Program honors the personal wishes, preferences and beliefs that afford each person the independence and participation in all decisions affecting their lives. 1
Providing Information on Supports, Resources, Alternatives to Guardianship, & Tools for Decision Making
The following packet contains information to help families become better informed about tools and local resources available in the community to assist people with intellectual and developmental disabilities in making independent decisions and avoiding limiting a person’s rights, choices, dignity and personal freedoms. The Arc New York's policy is to accept referrals for guardianship and initiate or participate in a guardianship proceeding only after other less restrictive alternatives have been evaluated and determined not to be appropriate to meet the decision- making needs of an individual. The Arc New York will serve only as a Guardian of Last Resort when family members/relatives or others are unable, unwilling, or otherwise unavailable or incapable of serving in this capacity.
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Role of the Guardianship Program
A. The Chapter’s Guardianship Committee and Guardianship Coordinator shall, as part of its overall guardianship program, identify and become familiar with local community services, planning vehicles and government benefits that can provide support to persons and their families, either as an adjunct or as an alternative to guardianship. B. Prior to making an application to The Arc New York to provide guardianship services, the Chapter shall consider and encourage parents and other relatives to explore other appropriate, less restrictive alternatives and resources to provide the necessary assistance to the proposed person being considered for guardianship. C. It is important to understand that guardianships in New York State are divided into Guardianship of the Person and Guardianship of the Property. While the standard for both is generally the same, some alternatives which should be considered to limit or eliminate entirely the need for a Guardian of the Person and/or Property. Guardianship of the Person includes responsibilities focused on the health, safety, care, advocacy, and rights of the individual in question. In contrast, Guardianship of the Property is directed at overseeing and managing the individual’s personal financial assets (money, real estate, etc.). It is important to understand these differences when considering alternatives to Guardianship. 3
Alternatives to Guardianship of the Person
There are legal ways to give someone else authority to make certain decisions for you other than guardianship. In particular, the level of capacity required to execute or complete advance health care directives is quite low, allowing a person the opportunity to direct who and how their care will be handled, should they lose capacity to make health care decisions themselves.
Advanced Health Care Directives
(i.e., Health Care Proxy, Living Will and MOLST) used to memorialize the individual’s health care preferences. Advanced Directives detail the person’s preferences with respect to certain medical interventions should they become unable to communicate them to a doctor and appoint a person to make those decisions.
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Alternatives to Guardianship of the Person
Health Care Proxy
A legal document that allows a person with capacity to appoint an “agent” to make health care decisions, should that person’s doctors determine they are not capable of understanding the nature and consequences of the health care decisions they are being asked to make at some point in the future.
Living Will
Can provide the agent appointed by an individual with the clarity they need to fulfill their charge and to be protected while they do so. The living will serves as a declaration of the individual’s wishes as to health and end of life care. It can list procedures the individual does or does not want and is generally considered acceptable evidence of the individual’s wishes.
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Alternatives to Guardianship of the Person
Supported Decision-Making (SDM)
A model for supporting people with disabilities (often cognitive disabilities) to make significant decisions and exercise their legal capacity. Specific decisions are addressed, weighted, and concluded by the person with the disability while drawing on the support of a network of people or an individual. While this model is offered throughout the country, it is not a legal decision-making method in the State of New York. Click here for information about New York State’s pilot project on Supported Decision Making in New York.
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Alternatives to Guardianship of the Property
Durable Power of Attorney
This document is effective when signed and allows a person to designate an agent or agents to make personal and financial decisions on their behalf. These documents are comprehensive and grant significant authority over one’s assets, and one’s ability to contract for services or for entry into a residential health care facility. These, unlike Health Care Proxies, should only be executed under the supervision of an attorney licensed to practice in New York State.
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Tools for Decision-Making
New York State offers an alternative to the court system for individuals who lack the capacity to provide informed consent for those individuals with I/DD or with mental illness who do not have a legally authorized decision-maker to act on their behalf and are in need of non- emergency, major medical procedures, i.e., a colonoscopy or dental extractions under general anesthesia. This program also handles end-of-life decision- making for qualifying individuals. Surrogate Decision-Making Committee (SDMC)
An actively involved family member is someone 18 years of age or older who has demonstrated significant and ongoing involvement in an individual’s life in order to have sufficient knowledge of his/her needs. 8 Actively Involved Family Members
Tools for Decision-Making
This is not a document that an individual can execute on their own, it is a medical order that is issued by a doctor that allows a person to elaborate on their wishes for end-of-life care and various medical procedures after consultation with a doctor. The New York State Office for People with Developmental Disabilities (OPWDD) has developed a checklist for the review of a MOLST with a person with intellectual or developmental disabilities. Medical Order for Life-Sustaining Treatment (MOLST)
Court Order
Legal action can be commenced in the County or Supreme Court for a court order. Papers supporting the need for the medical procedure are filed with the Court. The individual has legal representation (usually through the Mental Hygiene Legal Service) and a hearing can be held on the issues presented. This is typically a last resort when there are no other available options.
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Restoration of Rights
Because guardianship is created by a court, it must be dissolved in court. A best practice goal should always be to restore the rights of individuals who are capable of making their own decisions individually or with the assistance of others in a least restrictive manner. Article 17-A, unlike Article 81 Guardianship does not expressly authorize modification or termination of the guardianship when, among other things, the person has become able to exercise some or all of the powers which the guardian is authorized to exercise. However, since the Surrogate's Court retains jurisdiction over the guardianship, it may consider applications to modify or terminate the guardianship. If The Arc New York (NYSARC, Inc.) is serving as the Guardian and there are people seeking help in removing their guardian, the Chapter Guardianship Staff is responsible for helping the individual receive legal assistance either through the Mental Hygiene Legal Service and/or private attorney.
If the individual has someone other than The Arc New York (NYSARC, Inc.) as their guardian, then they can seek help by contacting Disability Rights of New York (DRNY) at (518) 432-7861, or online at www.drny.org. An Intake Specialist will collect some confidential information and the case will then be referred to an attorney. The attorney will explain the restoration process, identify the client’s goals and concerns, help collect documents and, with the client’s consent, talk to people who might support the restoration. All information shared between the client and the attorney is confidential. The attorney will review the case and make recommendations to the client. If the client and attorney agree that there is enough evidence to dissolve the guardianship, the attorney will prepare legal documents to file with the court.
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Mental Hygiene Legal Service (MHLS) is another resource for individuals residing in residential settings, or people eligible to reside in a certified setting. MHLS is a New York State agency responsible for representing, advocating, and litigating on behalf of individuals receiving services for a mental disability. MHLS operates pursuant to Article 47 of the New York State Mental Hygiene Law and is an agency of the judicial branch of government. The law allows MHLS to provide legal representation to an individual and can inform residents and their families of other available legal services if they are unable to provide direct representation in a case. MHLS has designated offices for every county in the State. Legal assistance can be obtained by contacting the closest regional office, MHLS office in Albany, NY can also be contacted at (518) 451-8710 and given the same information. The person will then be referred to the MHLS office that would handle the matter. (Continued on Page 12) All of DRNY's Services are FREE
Restoration of Rights
The judge will want to hear from all parties and will review all papers submitted before deciding. The judge may decide to hold a hearing and take sworn testimony from witnesses. The attorney will involve and support the client through the entire process, which could take several months. More information on this process for people under guardianship can be found in What to Expect if I Want to Terminate My Guardianship on the DRNY website. DRNY is a non-profit law office and advocacy agency that protects and advances the rights of people with disabilities. These efforts include assisting people who are under guardianship who wish to end the guardianship and have their rights restored. DRNY also helps people for whom guardianship is being sought who wish to retain the right to make decisions. DRNY can provide assistance in both Article 17-a Surrogate’s Court Procedures Act CPA 17-A and MHL Article 81 guardianship proceedings.
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All of DRNY's Services are FREE
An attorney can meet with the person, review records, investigate claims, advise them of their rights and help make a plan to move forward. MHLS can be appointed by a Court to represent someone but can also initiate any legal action to safeguard individual’s rights. This can include a legal action to enforce the terms of the guardianship, modify a guardianship order or remove a guardian in appropriate circumstances. DRNY is a non-profit law office and advocacy agency that protects and advances the rights of people with disabilities. These efforts include assisting people who are under guardianship who wish to end the guardianship and have their rights restored. DRNY also helps people for whom guardianship is being sought who wish to retain the right to make decisions. DRNY can provide assistance in both Article 17-a Surrogate’s Court Procedures Act CPA 17-A and MHL Article 81 guardianship proceedings.
Informal Supports – These types of supports may be provided by family members, close friends and others in the community to assist the person with daily living needs. Support Service Agencies – These types of providers are typically located in the community and may be available to provide assistance in specific areas such as self-care, homemaking skills, vocational training and money management. Care Coordinator/Manager – The coordination of an individual’s care is done through a dedicated Care Manager who oversees and coordinates access to all services.
Contact Information
bermane@thearcny.org
518-439-8311 ext. 206
29 British American Blvd., Latham, NY 12110
www.thearcny.org
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