This proceeding seeking the appointment of a guardian of the person of an alleged mentally retarded person pursuant to Article 17-A of the Surrogate's Court Procedure Act presents the following issues of concern under the Health Care Decisions Act For Persons With Mental Retardation ("Health Care Decisions Act", L.2002, ch. 500, amending SCPA 1750 and enacting SCPA 1750-b, effective March 17, 2003): 1) Does an SCPA 1750-a guardian of a developmentally disabled person have the authority to make any of the health care decisions enumerated in SCPA 1750-b? 2) Are there any circumstances under which an SCPA 1750-a guardian of a developmentally disabled person should be granted the authority to make decisions to withhold or withdraw life-sustaining treatment?

Upon the oral and documentary proof adduced at the hearing and upon the personal appearance and demeanor of the respondent, as well as the report of Mental Hygiene Legal Service, Third Judicial Department, and the certifications indicating that the respondent needs help with regard to health care decisions, it appears to the satisfaction of the court that the respondent is a developmentally disabled person within the provisions of Article 17-A of the SCPA. The respondent appeared to have some understanding of the nature of the proceeding and specifically indicated that he wanted both of the proposed guardians, his grandmother and his aunt, to be able to assist him with medical and dental care decisions. The report of Mental Hygiene Legal Service favors granting the application, but takes the position that the granting of the application does not give the guardian authority to make decisions with regard to life-sustaining treatment.

The Legislature interpreted Matter of Storar, 52 NY2d 353 (1981), as holding that, since mentally retarded persons never had the mental capacity to indicate a choice with regard to withholding or withdrawing life-sustaining treatment, their guardians cannot be granted the authority to make such decisions for them (see, McKinney's 2002 Session Laws of NY, Vol. 2, Memorandum, ch. 500, at 2002 - 2004). The Health Care Decisions Act was enacted to remedy this "gap" in the law and, as stated in the justification for the legislation, it "recognizes the imperative of reassuring" these guardians "that, subject to appropriate oversight, they will have the authority to make critical health care decisions" for those "who cannot make those decisions". [*2]

Prior to the enactment of the Health Care Decisions Act, there was no statutory provision which enumerated which, if any, health care decisions could be made by the Art. 17-A guardian of either a mentally retarded or developmentally disabled person. Nevertheless, it appears to have been generally accepted by both the legal and the medical community that, unless the court order provided otherwise, the guardian of either a mentally retarded or developmentally disabled person had the authority to make almost every health care decision for the ward other than those involving life-sustaining treatment. This implied authority flowed from the requirement that before a guardian was appointed, there had to be two certifications (one each by a licensed physician and psychologist or both by physicians) that the mentally retarded or developmentally disabled person was "incapable of managing himself or herself and/or his or her affairs by reason of" such condition. The enactment of the Health Care Decisions Act cured the lack of specificity with regard to the authority of guardians of mentally retarded persons to make health care decisions, including life-sustaining treatment. However, the guardians of the developmentally disabled are still without any specific authority to make any health care decisions and, perhaps, they remain powerless to make any life-sustaining treatment decisions for those wards who never had, and never will have the ability express an opinion on the subject. This is the case because the provisions of SCPA 1750-b are expressly limited to those persons who have been adjudicated to be mentally retarded.

It is understandable that the Legislature would not want to extend the authority to make life-sustaining treatment decisions to every guardian appointed for a developmentally disabled person. With regard to the mentally retarded, the conventional wisdom is that there are tests which clearly indicate that a person is mentally retarded and that their ability to function can be predicted by the degree of retardation. By contrast the classification developmentally disabled encompasses a much broader range of cognitive ability including, inter alia, disabilities attributable to "cerebral palsy, epilepsy, neurological impairment, autism ... (which) originates before such person attains age twenty-two" (SCPA 1750-a). However, the Legislature was able to craft legal and medical safeguards to protect the rights of the mentally retarded while granting authority to their guardians to make life-sustaining treatment decisions so that they would not have to linger in an irrevocable state of anguish as the result of "unnecessary" medical intervention. The same reasons compel that at least an attempt be made to enact similar legislation for the benefit of those developmentally disabled who never had, or will have, the capacity to articulate an opinion on the issue. Clearly, it does not make sense for such legislation to provide that this issue be litigated every time a guardian is appointed. This would be a waste of both the parties' assets and judicial resources because this would turn out to be a determination on a hypothetical issue in the overwhelming majority of matters. One solution to this problem might be for the certifications for the developmentally disabled to expressly state with a reasonable degree of medical certainty whether the subject of the certification will always lack the capacity to express an opinion with regard to life-sustaining treatment decisions. Should any party take issue with these certifications and present a certification to the contrary, it would be left to the discretion of the court whether the issue should be determined at the time of the appointment of the guardian. In any event, this issue is worthy of consideration and will be referred to the Surrogate's Court Advisory Committee to explore whether it will propose legislation on the issue.

Based upon the above analysis of the law, the court concurs with Mental Hygiene Legal Service, Third Judicial Department. Consequently, the court is not making any determination [*3]at this time which grants authority to the guardian to make life-sustaining treatment decisions on behalf of the respondent, nor is the court making any determination whether it or any court may grant such authority to the guardian in the future under existing law .

Accordingly, letters of guardianship of the person of the respondent shall issue to Etheline Brown Knox, the respondent's grandmother. Lisa Marie Brown, the respondent's aunt, is appointed standby guardian to serve when the primary guardian is no longer able to do so. The successor guardian shall assume the duties of office subject to qualification and confirmation as required by law.

Inasmuch as the petitioner has appeared pro se, the court has prepared the decree to be entered herein. The Chief Clerk shall mail a copy of this decision and the decree to the pro se petitioner and to Mental Hygiene Legal Service, First and Third Judicial Departments.

Decree signed.

SURROGATE