Tuesday, May 18, 2010

Money, happiness and constitutional rights - Matter of Mark C.H.

But for the occasion of the 17-A proceeding belatedly commenced by petitioner, Mark would, most likely, still be an entirely isolated institutional resident. Although his basic needs were met, he lacked the resources to reach his best potential and to thrive — even as significant monies left to care for him increased, unspent in his trust, from which both trustees presumably took their annual commissions.

The facts in this case dramatically demonstrate why a statute that gives a guardian control over the life of a person with mental retardation and/or developmental disabilities must include provision for periodic court review.

-- Hon. Kristin Booth Glen, Surrogate's Court, New York County in
Matter of Mark C.H.

One of the most challenging issues facing parents of developmentally disabled children is how to provide for their care when the parents are gone. In the Mark C.H. case, an adoptive mother made arrangements for her autistic son's care after her death from cancer, leaving several million dollars in trust for him. Because of what happened after the mother's death, Judge Glen of the New York County Surrogate's Court decided that New York's guardianship law puts an unconstitutional restriction on the liberty of mentally retarded and developmentally disabled people unless the court also monitors the activities of the appointed guardians. In the Matter of Mark C.H., 2010 NY Slip Op 20156 (April 21, 2010).

Marie H. was diagnosed with terminal cancer in 2003. She had two adopted boys. One of them, Mark, was autistic. Because she would no longer be able to care for Mark, she put him in an institution. Mark was 14 at the time. Marie died in 2005, leaving $3 million in trust for Mark's care. Marie's attorney was a trustee of Mark's trust, and he made a death-bed promise to Marie that he would also be Mark's personal guardian.

In 2007, four years after Mark and been institutionalized and two years after Marie had passed away, the attorney filed his belated petition to be appointed Mark's guardian under Article 17-A of New York's Surrogate’s Court Procedure Act (SCPA). Under Article 17-A, New York courts can appoint a guardian of the person and/or property of "mentally retarded persons" and "developmentally disabled" persons. In this case, the attorney was to be appointed as guardian of Mark's person only, since his financial affairs were (supposedly) being handled through the trust.

There was a hearing on the petition in October 2008. Mark had been in the institution for five years. The trustees admitted that they had never visited Mark or taken any steps to find out what Mark's needs were, and they had not spent any of Mark's trust funds on his behalf. At the court's direction, the trustees hired a Care Manager, Robin Hoffman, who visited Mark and his caregivers at the institution. This is what the Care Manager learned:

In her interview with Mark's residence manager, Hoffman was informed that

"as far as [the resident manager] knew, Mark [had] not had any visitors in the five years that she had worked with him nor has he had a vacation. She stated that most of the students leave school over Christmas vacation, [but] Mark remains on campus with staff. She reported that Mark would enjoy eating in a restaurant, playing music on a synthesizer, and using a computer. He could benefit from enhanced augmentative communication devices."

In addition to these items and services that would likely improve Mark's quality of life, Hoffman also learned of significant medical issues that could be alleviated by expenditures from the trust.

Judge Glen decided that there was no way she was going to appoint the petitioner as Mark's guardian without requiring regular judicial review of his actions, even though the guardianship statute doesn't require such review. "The facts in this case dramatically demonstrate why a statute that gives a guardian control over the life of a person with mental retardation and/or developmental disabilities must include provision for periodic court review," Judge Glen said in her decision.

Why does the court have the power to make guardians of developmentally disabled wards report to the court when the statute doesn't require it? Because, Judge Glen decided, the statute would otherwise be unconstitutional. Because guardianship is a drastic restraint on a person's constitutional liberty right, due process is required. The guardianship statute, as written, does not provide for any judicial monitoring once the guardian is appointed, thus leaving the ward open to indefinite restrictions on his or her liberty regardless of what the guardian does or whether the guardianship continues to be in the ward's best interest. The judge reasoned that due process requires that the court read into the statute a reporting and review requirement.

Judge Glen also considered the UN's Disability Convention as a reason for imposing reporting and review requirements, even though it hasn't yet been ratified by the US Senate. "[A]s a matter of international human rights law, state interventions, like guardianships, pursuant to parens patriae power, must be subject to periodic review to prevent the abuses which may otherwise flow from the state's grant of power over a person with disabilities such as those covered by SCPA Article 17-A."

As the court noted, New York law regarding other guardianships, including guardianships of the incapacitated elderly or people with mental illness, requires annual reporting and court review, while guardianships of the persons of those with mental retardation and/or developmental disabilities does not. To add this requirement to the MR/DD personal guardianship is not unrealistic, and provides these wards with the same protections that other people under guardianship receive.

According to the Matter of Mark C.H. decision, in practice many parents of kids with developmental disabilities get Article 17-A guardianships over their kids at the point of adulthood, and then the court never hears from them again. If the New York courts start reading the report and review requirements into the guardianship law, these additional requirements may affect familial guardianships as well as non-familial guardianships like the one involved in this case. Although this would place an additional burden on family members who act as guardians, there's no guarantee that a guardian who is related to the ward will not neglect or abuse him. The story of Tiffany Pinckney, who died under her sister's guardianship, is an example. It seems sensible to afford people under MR/DD guardianships the protection of ongoing court supervision to preserve their constitutional and human rights.