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Nassau County Family Law Blog

Wednesday, December 23, 2015

Family Denied Guardianship of Down Syndrome Relative Who Wants to Wed

When is guardianship of a disabled person unreasonable?

Family members, objecting to the impending marriage of their relative, a 29-year-old man with Down syndrome, petitioned for his guardianship. A Brooklyn Surrogate Court judge, however, denied that guardianship petition, stating that the relatives' objection to his marrying did not provide a reasonable cause for guardianship. The Surrogate Court judge, Margarita Lopez Torres, said that "the yearning for companionship, love, and intimacy is no less compelling for persons living with disabilities."

While the mother and brother of the disabled man, known as D.D., produced certificates from two physicians stating he was "indefinitely incapable of managing himself and/or his own affairs," Judge Torres ruled that guardianship, which takes away all vestiges of independence, should be a last resort in such a situation. She pointed out that the certificates produced were generic in nature and did not specify which particular actions the man in question was able, or unable, to perform.

Since she felt the information she had been given was incomplete, the judge appointed an ad litem guardian from an innovative clinical program at Brooklyn Law School designed to represent individuals with intellectual disabilities. The program, Advocates for Adults with Intellectual and Developmental Disabilities Legal Clinic, thoroughly researched D.D.'s situation and provided an extensive report based on interviews with the parties involved and with many friends and coworkers of the disabled man.

The review concluded that D.D. is able to work, has an active social life, can attend to his own personal and hygiene needs, and can travel independently on public transportation when going to familiar destinations. In accordance with D.D.'s abilities and desires, the ad litem recommended alternatives to guardianship, such as durable power of attorney and a health care proxy. The judge concurred that such measures, if agreeable to D.D., would meet the financial and healthcare concerns of the family.
The director of the legal clinic pointed out that the person in an Article 17-A proceeding, for whom guardianship is proposed, is routinely denied due process, even though the individual stands to lose all "autonomy, the right to vote, the ability to marry, to have a say in health care and financial matters."

In her decision, Judge Torres quoted from the recent U.S. Supreme Court decision legalizing gay marriage, in which it was stated that marriage "rises from the most basic human needs; marriage is essential to our most profound hopes and aspiration." In the meantime, D.D., who presently lives with his mother, stated under oath that he had spent several years saving for an engagement ring for the woman he wants to marry and that he wants to live with her independently in the future.

Legal rights can be cloudy and contradictory even within the boundaries of a family and conflicts can arise even when all parties are well-intentioned. When such situations arise, it is always a good idea to contact an informed and skilled family attorney.

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