NY Guardian System Needs Fixes and Oversight: Law School Report

The state's system of guardianship for incapacitated individuals is plagued by delays, a lack of resources for poor families and periodic scandals that underscore the need for more accountability, according to a report released Monday [12/3].

The report, by a Cardozo School of Law clinic, has outlined a series of recommendations to help improve the system, including a statewide task force and increased scrutiny of potential guardians. It also suggested that state officials consider alternatives to guardianship that allow incapacitated individuals more control over their own affairs while providing the necessary support.

"Our goal is twofold: to move forward on some of the shorter-term, simpler recommendations and then to create a conversation about some of the bigger picture questions, like creating an alternative to guardianship," Rebekah Diller, the head of the Cardozo clinic, said in an interview.

Article 81 of the state's Mental Hygiene Law, passed 20 years ago, created the modern system of guardianship and remains "a model statute" in many ways, according to the report, "Guardianship in New York: Developing an Agenda for Change."

The statute mandates the least restrictive approach so that an individual is only deprived of those decision-making rights that are necessary to protect them, and courts are required to consider alternatives. In addition, a hearing and an investigation by a court evaluator are required, and the right to counsel is afforded the individual.

"Notwithstanding these important reforms, noteworthy challenges remain two decades later," the authors wrote.

The recommendations range from systemic reforms, like instituting a statewide data management system to track cases, to relatively small changes, like standardizing guardianship-related forms and making them accessible online.

Perhaps most important, according to the report, is the establishment of a statewide task force on guardianship, a move that Missouri, Ohio and Delaware either are contemplating or have already carried out.

"Without a standing body to identify key policy and practice issues and to coordinate reform implementation, change is not likely to occur," the report said.

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NY Guardian System Needs Fixes and Oversight: Law School Report

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Read "Guardianship in New York: Developing an Agenda for Change"