Surrogate's Court, Dutchess County, May 15, 2020

Disability Rights New York, Albany (Jennifer Feeley of counsel), for petitioner.

Fitzgerald & Sadove, PLLC, White Plains (Erica M. Fitzgerald and Stacy M. Sadove of counsel), for respondent guardian.

This is a proceeding to terminate a guardianship of the person and property pursuant to article 17-A of the Surrogate's Court Procedure Act.{**68 Misc 3d at 706}

Petitioner Robert C.B. (Bobby), by his attorneys Disability Rights New York, asserts that he no longer meets the criteria for an article 17-A guardianship. Bobby also argues that the existing article 17-A guardianship should be terminated because it is no longer the least restrictive means available to provide him with any support that he may require.

For the reasons stated herein, the petition is granted to the extent that it seeks termination of the guardianship of the person. The petition is denied to the extent that it seeks termination of the guardianship of the property, subject to the opportunity to renew that application upon evidence that Bobby has an active and engaged support system. Finally, a hearing will be conducted to select a new property guardian to replace Bobby's uncle, Michael, who has communicated his intent to resign as the current article 17-A guardian.

Bobby is the son of William and Patricia. William died on September 17, 2003. Patricia died on February 15, 2009. Bobby was 12 years old when Patricia died.

Patricia's will designated her brother, Michael, to serve as Bobby's guardian. Her will also named Michael as the trustee of a testamentary trust that was established for Bobby's benefit.

On April 28, 2009, the court (Dolan, A.S.) appointed Michael as the guardian of Bobby's person and property pursuant to article 17 of the Surrogate's Court Procedure Act. Michael, a resident of Texas, placed Bobby in foster care in New York for the remainder of his childhood.

Bobby reached the age of majority in 2014. By petition dated March 23, 2015, Michael sought guardianship of Bobby as a developmentally disabled person pursuant to article 17-A of the Surrogate's Court Procedure Act. Rena M. O'Connor, Esq., was appointed as guardian ad litem in that proceeding.

By decree dated May 18, 2015, the court (Pagones, S.) found that Bobby is a developmentally disabled person who has a form of autism spectrum disorder known as Asperger's Syndrome. The court also found that Bobby needs a guardian and that his best interest would be served by appointing Michael as the guardian of Bobby's person and property. The court also appointed Bobby's brother, William C.B., as the standby guardian, to serve upon the death, incapacity or renunciation of Michael.{**68 Misc 3d at 707}

By declaration dated September 1, 2015, Michael transferred the proceeds of the testamentary trust to a supplemental needs trust (SNT) for Bobby's benefit. Michael decanted these funds into the SNT pursuant to EPTL 10-6.6 (b) and (n) (1).

By verified petition dated January 28, 2019, Bobby seeks an order, inter alia, dissolving the article 17-A guardianship. The petition initially sought this relief on the grounds that the court should not have granted the guardianship petition because the evidence failed to establish that Bobby suffers from a developmental disability or that a guardianship is in Bobby's best interest. Alternatively, the petition seeks this relief on the grounds that continuing the guardianship is not in Bobby's best interest, and that its continuation violates Bobby's due process rights. Finally, in the event that the application to dissolve the guardianship is denied, the petition also sought an order discharging Michael as the guardian on the grounds that he was not acting in Bobby's best interest.

By stipulation dated June 5, 2019, Bobby and Michael entered into a partial settlement agreement. In the stipulation, Bobby agreed to withdraw the allegations in the petition that accused Michael of failing to act in Bobby's best interest, to withdraw his request to remove Michael as guardian, and to release any claims that he might have against Michael. In return, Michael agreed that he would not oppose Bobby's efforts to dissolve the guardianship. Michael also agreed to resign as the guardian, and as the trustee of the SNT, and to transfer the trust estate to an appropriate community pooled trust. Finally, Michael agreed to cooperate with Bobby and the court until such time as Michael is discharged as Bobby's guardian.

The court heard evidence in support of the petition during a two-day evidentiary hearing. Prior to the commencement of testimony, Bobby's attorney formally withdrew that portion of the petition that alleged the court should not have granted the original guardianship petition. Counsel also confirmed that the claim seeking Michael's removal as guardian on the grounds that he had failed to act in Bobby's best interest had been withdrawn pursuant to the stipulation. Finally, at the court's request, counsel confirmed that "the only issue that is in play at this point is whether or not . . . it would be in [Bobby's] best interest to either modify or outright terminate and dissolve the existing guardianship." (Rec at 7.)

The basic premise of article 17-A is that "a person under a mental disability will not outgrow her need for a guardian at age eighteen." (Margaret Valentine Turano, 2011 Practice Commentaries, McKinney's Cons Laws of NY, SCPA 1750.) Therefore, upon a largely diagnosis-driven finding that a person suffers from a permanent qualifying disability that renders him incapable of managing himself or his affairs, the court will appoint a guardian of the person or property, or both, when such an appointment is in the best interest of the disabled person. Essentially, article 17-A seeks "to ensure long-term guardianship of persons who never were and never will be able to care for themselves." (C. Raymond Radigan & Peter K. Kelly, Article 17-A Guardianship Statute: Still Alive and Well, NYLJ, Mar. 14, 2016.)

When first enacted in 1969, article 17-A was primarily designed to provide parents with the ability to continue making personal and property decisions on behalf of intellectually disabled children who had reached the age of majority.^[FN1] In 1989, article 17-A was repealed and replaced, at which time its reach was expanded to include developmentally disabled individuals.^[FN2] In 2002, article 17-A was further revised to expressly provide the court with the discretion to grant guardians of the person the authority to make health care decisions on behalf of their wards, including the decision to withhold or withdraw life-sustaining treatment (subject to the concurrence of the attending physician and a consulting physician, based upon specified statutory criteria). (SCPA 1750-b.)

Thirty years ago, the legislature recognized that "momentous changes have occurred in the care, treatment and understanding of these individuals" since article 17-A was first enacted. (L 1990, ch 516, § 1.) The legislature also found that the move from institutionalization to community-based care had enhanced the opportunities for intellectually and developmentally disabled people to function independently and to make many of their own decisions, and that "[t]hese are rights and activities {**68 Misc 3d at 709}which society has increasingly come to recognize should be exercised by such persons to the fullest extent possible." (Id.)

Therefore, the legislature directed the New York State Office for People with Developmental Disabilities (OPWDD) to undertake a study of article 17-A guardianships. (Id. § 2.)^[FN3] As part of that study, OPWDD was charged with considering procedural changes to article 17-A that would "ensure that the best interests of the ward is maintained without unnecessarily abridging the right of the ward to make decisions on his or her own behalf," while also recognizing that most article 17-A petitions are filed by parents and family members of prospective wards "and therefore it is imperative to facilitate the efficient and expeditious process of appointing guardians to the maximum extent practicable." (Id. § 2 [b].)

It is the official policy of New York State to promote and to facilitate the "independence, inclusion, individuality and productivity" of persons with intellectual and developmental disabilities (Mental Hygiene Law § 13.01). Despite this official policy, and despite the legislature's clarion call for a more sophisticated approach 30 years ago, no changes have been made to article 17-A that meaningfully enhance the independence and autonomy of intellectually and developmentally disabled persons by promoting and advancing their fundamental right to make decisions on their own behalf.

To be sure, wholesale reforms to article 17-A have been examined periodically. For [*4]instance, in response to the 1990 legislative call to action, OPWDD formed a working group to study and recommend revisions to article 17-A. However, "[v]arious support groups of Article 17-A pressed the Legislature for its retention" (C. Raymond Radigan & Jennifer F. Hillman, Article 17-A Proceedings Remain an Important Tool, NYLJ, Jan. 6, 2010), and no legislation was enacted as a result of that group's work (see Matter of Mark C.H., 28 Misc 3d 765, 769 [Sur Ct, NY County 2010] ["there was no report, no proposal, and no change to article 17-A"]).

In the years that followed, a coalition of stakeholders continued to advocate for a modernized article 17-A, and the EPTL-SCPA Legislative Advisory Committee also examined potential statutory revisions (Matter of John J.H., 27 Misc 3d 705, 711 [Sur Ct, NY County 2010]). Most recently, the Surrogate's{**68 Misc 3d at 710} Court Advisory Committee convened by the Chief Administrative Judge drafted proposed legislation that would significantly reform the now 50-year-old article 17-A guardianship model. However, all efforts at statutory reform have encountered considerable resistance from concerned families, who understandably fear that adding layers of complexity to article 17-A will create an unnecessary, if not insurmountable, obstacle to essential guardianship applications (see Margaret Valentine Turano, 2011 Practice Commentaries, McKinney's Cons Laws of NY, SCPA 1750 ["For families with (intellectually disabled) and developmentally disabled children, especially those without the resources to hire an attorney, the availability of the Article 17-A guardianship is a lifeline into the legal system"]).

While the OPWDD working group was studying potential reforms to SCPA article 17-A in the early 1990s, the New York State Law Revision Commission was also examining potential changes to the conservator and committee laws for adult guardianship contained in the Mental Hygiene Law. That project resulted in the repeal of former Mental Hygiene Law articles 77 and 78, which one surrogate described as being "characterized by the same 'all or nothing' finding, primarily diagnosis driven, as article 17-A, and also implicitly assumed irreversibility." (Matter of Chaim A.K., 26 Misc 3d 837, 843 n 17 [Sur Ct, NY County 2009].) In the place of former Mental Hygiene Law articles 77 and 78, the legislature enacted a new article 81, which has been rightfully credited with introducing laudable reforms to the adult guardianship process.

The differences between Mental Hygiene Law article 81 and SCPA article 17-A guardianships have been well-chronicled, and frequently lamented, by a host of surrogates in thoughtful, often exquisitely written, opinions. (See e.g. Matter of K.L., NYLJ, July 3, 2017 at 25, col 3 [Sur Ct, Richmond County 2017, Gigante, S.]; Matter of Zachary W., NYLJ, Apr. 28, 2017 at 45 [Sur Ct, Suffolk County 2017, Czygier, S.]; Matter of Michelle M., 52 Misc 3d 1211[A], 2016 NY Slip Op 51114[U] [Sur Ct, Kings County 2016, López Torres, S.]; Matter of Hytham M.G., 52 Misc 3d 1211[A], 2016 NY Slip Op 51113[U] [Sur Ct, Kings County 2016, López Torres, S.]; Matter of D.D., 50 Misc 3d 666 [Sur Ct, Kings County 2015, López Torres, S.]; Matter of Chaim A.K., 26 Misc 3d 837, 844-845 [Sur Ct, NY County 2009, Glen, S.]; Matter of John J.H., 27 Misc 3d 705 [Sur Ct, NY County 2010, Glen, S.].) The key article 81 provisions{**68 Misc 3d at 711} that have been found to be lacking in article 17-A, at least in terms of express statutory authority, include: a focus on functional capacity, rather than on diagnosis; mandatory consideration of less restrictive alternatives to guardianship; the narrow tailoring of a guardian's powers when no viable alternatives to guardianship are available; annual reporting requirements for personal needs guardians; and the guardian's power to make gifts of the ward's property.

Confronted with the legislature's 30-year failure to take up its own call to modernize article 17-A, surrogates have generally followed one of two approaches to breathe life into this [*5]dated statute: (1) interpreting article 17-A as providing the surrogate with the implied power, and the inherent discretion, to tailor the guardianship to the ward's needs; or (2) interpreting article 17-A as a plenary statute that does not allow for tailoring, and judicially imposing a series of procedural safeguards, rooted in the constitutional right to due process, that mimic many of the express provisions of article 81.

The first approach—that the court has the implied authority to tailor an article 17-A guardianship—is firmly rooted in the guiding principles of the SCPA, which has been intentionally and thoughtfully designed to streamline Surrogate's Court practice and procedure while providing surrogates with the inherent discretion necessary to achieve a just result under the unique circumstances of each particular case. As Judge Radigan explained in a January 6, 2010 New York Law Journal article (Article 17-A Proceedings Remain an Important Tool):

"Article 17-A was envisioned during the Bennett Commission, created in 1961, which weighed the desirability of a tight, logical rule to govern every possible estate as against a simple, reasonable rule for the convenience of the vast majority. It was then Surrogate John D. Bennett's theory that laws should not be made to cover the 1 percent of cases where there may be a problem, thus causing the other 99 percent of the cases to bear unnecessary time and expense. It was his theory that there was always a way to deal with the small fragment of cases that needed special attention and the overall statute dealing with trusts and estates, both from the standpoint of substantive law and procedure, should address the majority of cases and, accordingly, he sought to simplify the practice and procedure."

{**68 Misc 3d at 712}The inherent discretion that the SCPA implicitly vests in the Surrogate's Court for matters within its jurisdiction has also been recognized by the Court of Appeals (Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]). Specifically, in assessing whether a surrogate has the inherent authority to order an inquiry into the account of an executor when no objection has been filed by any interested party, the court observed that "Surrogate's Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent or necessary to do justice in a particular case to which its jurisdiction extends" (id. at 524; see also Riggs v Cragg, 89 NY 479 [1882]; Matter of Tarlow, 111 AD3d 751, 752 [2d Dept 2013]).

Turning first to the statute itself, the Court noted that "the provisions of the Surrogate's Court Procedure Act implicitly grant the Surrogate broad discretionary powers." (Id.) Recognizing that SCPA 2211 neither expressly authorizes, nor expressly forbids, an inquiry into a proposed account absent an objection, the Court reasoned that treating this silence as a limit on the Surrogate's broad discretionary authority "would vitiate the third statutory directive—that the Surrogate administer justice" in those cases to which its jurisdiction extends. (Id.) Therefore, the Court concluded that the statutory grant of power to approve an account must, by necessary implication, include the correlative power to conduct an inquiry into that account, and the inherent discretion to deny a decree where warranted, even in the absence of any objections to the account. (Id.)

A similar line of reasoning has been employed by those surrogates who read SCPA as vesting the court with the implicit authority and inherent discretion to grant powers to an article 17-A guardian that are not expressly provided by the statute. For instance, in Matter of Schulze (23 Misc 3d 215, 217 [Sur Ct, NY County 2008]), Surrogate Roth found that article 17-A [*6]guardians have the inherent power to give gifts of the ward's funds in appropriate circumstances, and that "the express provision for gift giving among the powers of an article 81 guardian and the absence of such express provision from article 17-A does not necessarily denote that article 17-A guardians have no such power."

Likewise, in Matter of Joyce G.S. (30 Misc 3d 765, 769 [Sur Ct, Bronx County 2010]), Surrogate Holzman found that article 17-A guardians have the power to engage in tax saving transactions on behalf of their wards, and that{**68 Misc 3d at 713}

"there is no evidence of any legislative intent to remove this court's jurisdiction or power to act on behalf of an article 17-A ward with regard to an issue merely because article 17-A lacks specific provisions with regard to that particular issue while article 81 or one of its predecessors had or has such provisions."

And in Matter of Steven S.S. (NYLJ, Mar. 17, 2011 at 30 [Sur Ct, Bronx County 2011]), Surrogate Holzman found that the court had the authority to restrict the guardian's ability to choose his ward's place of abode, despite the absence of any express authority in article 17-A to tailor the guardianship in this manner.

Surrogates and commentators have also pointed to the 1989 revisions to article 17-A—in particular, the enactment of SCPA 1755 and 1758—as providing sufficient authority to tailor a guardianship in a manner that serves the best interests of the proposed ward (see C. Raymond Radigan & Peter K. Kelly, Article 17-A Guardianship Statute: Still Alive and Well, NYLJ, Mar. 14, 2016 ["When the Legislature re-enacted Article 17-A in 1989, it added provisions to permit the court to tailor guardianship to the needs of the ward"], citing SCPA 1755, 1758; Margaret Valentine Turano, 2011 Practice Commentaries, McKinney's Cons Laws of NY, SCPA 1750 ["When the legislature reenacted Article 17-A in 1989, it revised the statutes to permit the court to tailor guardianship to the needs of the ward"], citing SCPA 1755, 1758).^[FN4]

These two statutes also served as the basis for the court's determination that article 17-A guardianships are susceptible to tailoring in Matter of Yvette A. (27 Misc 3d 945 [Sur Ct, NY County 2010, Webber, S.]). In Yvette A., the father filed an article 17-A petition for the guardianship of his intellectually disabled daughter, who had been living in an institutional setting for 39 years. The father had severed all contacts with his daughter for 16 of those years, but had reestablished contact a few years earlier, and filed for guardianship after developing some concerns about the facility where she had been placed.{**68 Misc 3d at 714}

The petition was uniformly opposed by all other participants in the guardianship proceeding,^[FN5] who asserted that the father's relationship with his daughter was tenuous, and that moving her from the facility where she had resided for more than 30 years would be [*7]unnecessarily traumatic. The objecting parties also argued that a guardianship should be tailored to the daughter's needs, and that the petition should be dismissed in favor of an article 81 proceeding. Specifically, the objecting parties argued that article 17-A is less capable of protecting the daughter because article 81 includes express statutory authority to tailor a guardianship, while article 17-A does not.

While acknowledging that article 17-A does not specifically provide for the tailoring of a guardian's powers, the court found that the "authority to impose terms and restrictions that best meet the needs of the ward is implicit in the provisions of section 1758 of the SCPA." (Id. at 950.) The court also found that the discretion to tailor an article 17-A guardianship was included in the express statutory grant of authority to take such steps relating to the guardian "as may be deemed necessary or proper for the welfare of" the ward. (Id. at 950, quoting SCPA 1758.)^[FN6]

Finally, the Yvette A. court found that the SCPA 1755 power to modify a guardianship includes, by necessary implication, the authority and discretion to tailor a guardianship order at its inception. Specifically, the court recognized that SCPA 1755 authorizes the court to modify an existing guardianship to adapt to new circumstances, and that the "statute does not suggest that the extent and substance of such 'modification' are in some respects more limited than the needs of the ward herself." (Id. at 950-951.) Noting that the legislative history for article 17-A reveals that the statute was intended to "enable a protective plan to be tailored to the individual needs of [an intellectually disabled] person by providing a broad flexibility in the types of guardianships that can be utilized," the court reasoned that, "[b]y logical extension, a court that has the {**68 Misc 3d at 715}power to modify a guardianship order once it has been issued to meet the needs of the ward surely also has the power to tailor the order to meet such needs at the outset." (Id. at 951 and n 22.) As a result, the court granted the father's petition for an article 17-A guardianship, subject to a series of restrictions and reporting requirements tailored to protect the ward and to serve her best interests.

The second judicial approach reads article 17-A's lack of express tailoring authority to compel an all-or-nothing form of guardianship. This reading of the statute has, in turn, caused those courts to extend enhanced due process protections for the benefit of the proposed wards.

The surrogates who have adopted this approach have found that the failure to include express tailoring provisions in the "plain language" of article 17-A renders it "an entirely plenary" statute which "completely removes that individual's legal right to make decisions over her own affairs and vests in the guardian 'virtually complete power over such individual.' " (Matter of Michelle M., 52 Misc 3d 1211[A], 2016 NY Slip Op 51114[U], *3 [Sur Ct, Kings County 2016, López Torres, S.], quoting Matter of Mark C.H., 28 Misc 3d 765, 776 [Sur Ct, NY County 2010, Glen, S.]; see also Matter of Capurso, 63 Misc 3d 725, 727 [Sur Ct, Westchester County 2019, Sall, S.]; Matter of Zachary W., NYLJ, Apr. 28, 2017 at 45 [Sur Ct, Suffolk County 2017, Czygier, S.].) This has led to article 17-A being described as "an outmoded, constitutionally suspect statute" that effects a "Draconian loss of liberty" (Matter of Dameris L., 38 Misc 3d 570, 571, 576 [Sur Ct, NY County [*8]2012, Glen, S.]); as a "blunt instrument" (Matter of John J.H., 27 Misc 3d 705, 706 [Sur Ct, NY County 2010, Glen, S.]); as a "meat cleaver" (Matter of Zachary W., NYLJ, Apr. 28, 2017 at 45 [Sur Ct, Suffolk County 2017, Czygier, S.]); as "the most restrictive type of guardianship available under New York law" (Matter of Eli T., 62 Misc 3d 638, 640 [Sur Ct, Kings County 2018, López Torres, S.]); and as a remedy of "last resort." (Matter of D.D., 50 Misc 3d 666, 668 [Sur Ct, Kings County 2015, López Torres, S.].)

To a considerable measure, these criticisms reflect "the emerging awareness that there is a wide range of functional capacity found among persons with diagnoses of intellectual disability and developmental disability." (Matter of Hytham M.G., 52 Misc 3d 1211[A], 2016 NY Slip Op 51113[U], *3-4 [Sur Ct, Kings County 2016, López Torres, S.]; see also Matter of Chaim A.K., 26 Misc 3d 837, 845 [Sur Ct, NY County 2009, {**68 Misc 3d at 716}Glen, S.].) "As such, the perfunctory removal of decision making rights from persons with cognitive limitations is increasingly disfavored." (2016 NY Slip Op 51113[U], *4.)

The increasing recognition that there is a broad and diverse spectrum of functional capacity among the intellectually and developmentally disabled has generated a growing and persuasive body of case law, which seeks to integrate functional capacity with the article 17-A framework by making it an essential part of the statutory inquiry. (Matter of Michelle M., 52 Misc 3d 1211[A], 2016 NY Slip Op 51114[U], *3-4; Matter of Hytham M.G., 52 Misc 3d 1211[A], 2016 NY Slip Op 51113[U], *2; Matter of D.D., 50 Misc 3d at 668; Matter of Mark C.H., 28 Misc 3d at 777.)

Specifically, an article 17-A guardianship is authorized when a satisfactory demonstration has been made that it is necessary and in the best interest of the proposed ward. (SCPA 1750, 1750-a.) Necessity can only be established upon a finding that an individual is intellectually or developmentally disabled, and that the individual is incapable of managing himself or his affairs by reason of that disability. (Matter of Akiva., NYLJ, June 11, 2013 at 31 [Sur Ct, Kings County 2013, López Torres, S.].)

A finding of "best interest" is subject to the discretion and judgment of the presiding surrogate, and is not susceptible to an element-based definition. As such, it has been described as an "amorphous" term (id.; Matter of Chaim A.K., 26 Misc 3d at 844) relying on criteria that "are rarely articulated but frequently assumed." (Matter of Hytham M.G., 52 Misc 3d 1211[A], 2016 NY Slip Op 51113[U], *3; Matter of Michelle M., 52 Misc 3d 1211[A], 2016 NY Slip Op 51114[U], *4.)

The lack of statutory criteria supporting a best interest determination has sparked the fear that these determinations may rely on faulty assumptions. In particular, the flawed assumptions that an individual who has been diagnosed with an intellectual or developmental disability is "presumed to lack capacity to make independent decisions in every area of his life" and that "the mere status of intellectual [or developmental] disability provides sufficient basis to wholly remove an individual's legal right to make decisions for himself," and the concomitant risk that article 17-A guardians may be appointed "based upon medical certifications or diagnostic tests alone, without careful and meaningful inquiry into the individual's functional capacity." (Matter of Michelle M., 52 Misc 3d 1211[A], 2016 NY Slip Op 51114[U], *4; Matter of Caitlin, NYLJ, Mar. {**68 Misc 3d at 717}21, 2017 at 26, col 5 [Sur Ct, Kings County 2017, López Torres, S.].)

The antidote to these flawed assumptions and corresponding risks has been found in the protections afforded by the Due Process Clause. "[S]ubstantive due process has been understood to include a requirement that when the State interferes with an individual's liberty on the basis of its police power, it must employ the least restrictive means available to achieve its objective of [*9]protecting the individual and the community." (Matter of Dameris L., 38 Misc 3d at 577, citing O'Connor v Donaldson, 422 US 563 [1975].) Admittedly, article 17-A does not expressly state that a court must consider less restrictive alternatives to guardianship. However, the absence of any language compelling a least restrictive alternative analysis has not served as an impediment to its judicial implementation based upon fundamental constitutional principles. (Matter of Mark C.H., 28 Misc 3d at 787 ["Where, as here, a statute would be unconstitutional in the absence of a particular required procedure, the courts of our state have not hesitated to 'read in' those procedures"].)

Functional capacity has been identified as a necessary inquiry in determining whether a proposed guardianship is the least restrictive alternative that is in the best interest of the ward. (Matter of Michelle M., 52 Misc 3d 1211[A], 2016 NY Slip Op 51114[U], *5 ["the functional capacity of an individual with disability, that is, what an individual can or cannot do in managing her daily affairs, and assessing what is the least restrictive tool available to address that individual's specific area of need, is a necessary inquiry in determining what is in her 'best interest' "].) Likewise, an assessment of the least restrictive alternative has been deemed to require inquiry into the availability of other resources, such as a support system of family, friends, mental health professionals and supportive services; and powers of attorney, health care proxies, advance directives, trusts, representative payee arrangements, and direct deposit systems. (Matter of Capurso, 63 Misc 3d at 729-730; Matter of Eli T., 62 Misc 3d at 644; Matter of K.L., NYLJ, July 3, 2017 at 25, col 3; Matter of Michelle M., 52 Misc 3d 1211[A], 2016 NY Slip Op 51114[U], *7; Matter of Hytham M.G., 52 Misc 3d 1211[A], 2016 NY Slip Op 51113[U], *3; Matter of D.D., 50 Misc 3d at 669-670; Matter of Dameris L., 38 Misc 3d at 579.)

Both approaches—the custom tailoring approach and the due process approach—are grounded in the growing recognition {**68 Misc 3d at 718}that an "all or nothing" guardianship model will needlessly deprive countless intellectually and developmentally disabled people of the intrinsic right to exercise their autonomy to the fullest extent possible. Both approaches also seek to recognize and honor the invaluable, often heroic, roles that families and community resources play in supporting this vulnerable population.

The custom tailoring approach attempts to balance the rights and needs of the intellectually and developmentally disabled with a desire to preserve article 17-A as a cost-effective option for families. By comparison, the due process approach sees article 17-A as an outmoded and constitutionally suspect statute that threatens the autonomy of the intellectually and developmentally disabled.

At first blush, these different approaches might appear to be mutually exclusive. But in truth, they occupy substantial common ground.

At their core, both approaches seek to achieve the same objective—to administer justice for the intellectually and developmentally disabled, consistent with the Surrogate Court's statutory directive as a court of limited jurisdiction. Both approaches recognize that an article 17-A guardian should only be appointed when a guardian is needed and when it serves the best interest of the proposed ward. Both approaches recognize that the intellectually and developmentally disabled have a wide range of functional capacity, and resist a heavy-handed, all-or-nothing form of guardianship based upon outdated and flawed assumptions. And both approaches have not hesitated to breathe life into article 17-A by reading provisions into the statutory framework that sharpen the focus on the needs and best interests of the intellectually and developmentally disabled.

[1] After carefully considering both approaches, I conclude that a surrogate has the implied authority and the inherent discretion to tailor an article 17-A guardianship in a manner that meets the specific needs and serves the best interest of an intellectually or developmentally disabled person, while preventing unwarranted encroachments on that person's autonomy and independence. I find that this authority is vested in the surrogate by SCPA 1755 and 1758, and that the legislative history to article 17-A reveals that the legislature contemplated the surrogate's exercise of these tailoring powers when the statute was enacted. I also find that this tailoring{**68 Misc 3d at 719} power is in keeping with the broad discretion that the SCPA thoughtfully and purposefully provides to surrogates so that a just result can be achieved under the unique circumstances of each case, and that this tailoring authority is incidental, inherent and necessary to the administration of justice in the article 17-A cases that have been entrusted to the Surrogate Court's jurisdiction.

I also find that the legislative decision to include express tailoring provisions within article 81 does not inexorably compel a determination that tailoring is unavailable in article 17-A guardianships. Article 81 is a creature of the Mental Hygiene Law, which does not offer Supreme and County Courts the same broad discretion that the SCPA liberally affords the Surrogate's Court. In short, the decision to appoint a fiduciary, and the scope of the powers to be granted that fiduciary, fall squarely within a surrogate's wheelhouse. Therefore, I find that, as a creature of the SCPA, the article 17-A standards of necessity and best interest provide sufficient guideposts for a surrogate to structure a guardianship that is tailored to the needs and best interests of each cognitively disabled person who appears before the court. In this manner, the surrogate can strike the delicate balance between the natural desire to protect and support a vulnerable person, and the deep and abiding respect for the intrinsic right to self-determination that defines our society.

In the absence of statutory criteria defining the standards of necessity and best interest, I also find that the due process approach fills a void. Rather than deeming the tailoring approach and the due process approach to be in conflict, I find that the due process approach provides a welcome analytical framework with which to assess the standards of need and best interest that is respectful of the constitutional and intrinsic human rights of the intellectually and developmentally disabled. In particular, when deciding whether to grant an article 17-A petition, and the extent to which a guardian's powers should be tailored, thoughtful consideration must be given to functional capacity, less restrictive alternatives, and opportunities for supported decision making.

Essentially, I find that the tailoring approach and the due process approach are two tools in the same tool chest. Each tool has its own purpose and function. And both are essential to a surrogate's successful navigation of the delicate, potentially life-altering, task at hand: fashioning a solution that is tailored{**68 Misc 3d at 720} to the unique needs and best interests of a cognitively disabled person in the least restrictive manner available, and thereby protecting and promoting the autonomy and independence of each person without adding layers of complexity that intimidate families and create barriers to justice.

An article 17-A ward who has reached the age of majority may file a petition seeking the [*11]discharge of the guardian, or the modification, dissolution, or amendment of the guardianship (SCPA 1759 [2]). Upon filing such a petition, the ward "bears the burden of establishing that the guardianship is not in his best interest, with the determination of what is in his best interest committed to the court's discretion." (Matter of Capurso, 63 Misc 3d 725, 728 [Sur Ct, Westchester County 2019, Sall, S.]; see also Matter of Joseph D., Sur Ct, Suffolk County, May 23, 2019, Whelan, S., file No. 2009-1493/A, slip op at 4; Matter of Michael J.N., 58 Misc 3d 1204[A], 2017 NY Slip Op 51925[U] [Sur Ct, Erie County, Dec. 27, 2017, Howe, S.]; but see Matter of T.B., Sur Ct, Nassau County, Mar. 29, 2019, Reilly, S., file No. 2012-371126/B, slip op at 3 [finding that the burden of proof should be on the party opposing the petition, as would be the case in an article 81 proceeding pursuant to the burden-shifting provisions of Mental Hygiene Law § 81.36 (d)].)

The following is the court's decision, stating the facts it deems essential. (Gouvis v Gouvis, 44 AD3d 618 [2d Dept 2007]; Conklin v State of New York, 22 AD2d 481 [3d Dept 1965]; CPLR 4213 [b].) This decision relies, in part, upon credibility determinations that I made based upon my unique opportunity to observe the testimony of the witnesses. In making these determinations, and weighing their testimony, I considered a number of factors, including: the interest or lack of interest of the witness in the outcome of the proceeding; potential bias or prejudice on the part of the witness; the appearance, sincerity, demeanor, and manner in which the witness gave testimony; the opportunity the witness had to observe the facts about which he or she testified; and the probability or improbability of the witness' testimony when considered in the light of all of the other evidence. (See PJI 1:8, 1:41; Goldstein v Guida, 74 AD3d 1143, 1144 [2d Dept 2010]; Ivani v Ivani, 303 AD2d 639, 640 [2d Dept 2003].){**68 Misc 3d at 721}

Bobby is a 23-year-old man who grew up in foster care between the ages of 12 and 18, after the death of his parents in 2003 and 2009, respectively. His older brother, William, also grew up in foster care after their parents' death, and currently lives in Beacon, New York.

Bobby was first diagnosed with autism spectrum disorder in his early childhood. Specifically, he has been diagnosed with a form of autism known as Asperger's Syndrome.

Bobby attended elementary, middle and high school in the Wappingers Central School District. He received special education support services during his public education, and graduated from John Jay High School with a Regents diploma in 2014. He attended Dutchess Community College briefly after high school but, in his words, "like most students out of high school, I did not take school—I didn't take it seriously enough and flunked out" (rec at 88). He hopes to attend college again someday.

When Bobby aged out of foster care, he was placed in a group transitional housing program operated by Hudson River Housing. At some point, Bobby's caseworker recommended that he move out of the group setting to a rent-subsidized apartment that Hudson River Housing also manages as part of its transitional housing program. Bobby continues to live in that one-bedroom apartment, which has a microwave and mini-fridge but no kitchen. Bobby drops by his caseworker's office informally every two weeks or so, and undergoes a monthly room inspection conducted by his caseworker and a housing manager. Although he has been cited for a messy room in the past, he reports that he has not received any infractions in the last few moths. His rent is $360 per month, which is calculated as a percentage of his annual income.

Bobby does his own laundry, shops for his own clothes, and prepares food for himself to [*12]the extent his limited kitchen resources permit. He enjoys spending time with friends, and engaging in activities like bowling and going to the movies. On a recent trip to visit his Uncle Michael in Texas, Bobby flew by himself. Although family provided rides to and from the airport most of the trip, on his return to New York Bobby took an Uber to Grand Central where he then took the train to Poughkeepsie without receiving any assistance from others. Similarly, on two recent occasions, Bobby took the train between Poughkeepsie and Albany without any assistance from others.

Bobby made these trips to Albany to meet with Dr. Jeffrey Fox, a licensed psychologist retained by his attorneys to provide{**68 Misc 3d at 722} a neuropsychological evaluation for purposes of this proceeding. Dr. Fox received his doctorate in developmental psychology, previously served as the chief psychologist for the Capital District Developmental Services Office, and has worked with countless individuals on the autism spectrum during his 35-year professional career.

Dr. Fox testified that the focus of his private practice is neuropsychological assessments, that he has performed over 500 of these assessments during his career, and that 50 of those assessments have been performed in article 17-A proceedings. He also testified that neuropsychological assessments go beyond traditional cognitive assessments, that they cover "very specific areas of memory and learning," and that they "look for very specific differences in executive function." (Rec at 30.)

Dr. Fox's evaluation of Bobby included the Weichsler Adult Intelligence Scale (WAIS), which tests verbal comprehension, perceptual reasoning, working memory, and processing speed. His full scale standard score (also known as his IQ) was 112, which places him on the high end of average in his age group for the general population (i.e., not just people with developmental disabilities). Dr. Fox's report states that Bobby's performance on the WAIS "indicates overall intellectual ability in the average range, with significant variance across indexes."

Dr. Fox also administered the Autism Diagnostic Observation Study (ADOS), which assesses communication and reciprocal social interaction. Dr. Fox described the ADOS as "more of a social skills assessment than the more cognitive assessment such as the WAIS." (Rec at 37.) Dr. Fox testified that Bobby's test results support a diagnosis of autism at a mild level.

Dr. Fox also administered the Adaptive Behavior Assessment System (ABAS), which assesses three adaptive domains (conceptual, social and practical) across 11 skill areas. Bobby's practical score was in the 66th percentile, while his conceptual and social scores were each in the 34th percentile. Although these results clearly identify issues with social and conceptual adaptivity, Dr. Fox testified that these results are consistent with a diagnosis of autism spectrum disorder, and that the final composite result did not reveal any sign of significant deficits in adaptive functioning.

Ultimately, Dr. Fox testified that, in his professional opinion, Bobby is capable of managing his financial affairs. Dr. Fox also testified that he does not believe that Bobby needs a guardian,{**68 Misc 3d at 723} and that he is capable of functioning on an independent level in the activities of daily living.

However, Dr. Fox also testified that he did not seek to independently verify any of the information that Bobby self-reported during their interviews. For instance, when asked about Bobby's ability to manage his finances and budget his money, Dr. Fox testified that he did not see anything "out of the ordinary or within normal limits in terms of managing his life." In particular, [*13]Dr. Fox testified that Bobby talked about his ability to save money for a specific project, and that "each time he mentioned something like that, he said 'with the permission of my guardian.' So he fully understands the process, the 17A process." (Rec at 49.) Dr. Fox also testified that Bobby "certainly demonstrated to my satisfaction that he can maintain rent payments scheduled over several months, a budget." (Rec at 49-50.)^[FN7]

Dr. Fox also testified that, in his professional opinion, Bobby is capable of managing his personal affairs. Dr. Fox noted that Bobby can identify the medication he is taking by both the generic and brand name, that he knows its purpose and when to take it, and that he understands its effects. Bobby was also able to appropriately answer questions about how he would manage a fever, treat a wound, and when to seek medical care for an illness or injury. Dr. Fox also pointed out that Bobby had successfully moved from a group home to transitional living in an individual apartment, that he manages his work and life schedule without assistance, and that he successfully navigated two trips to Albany without assistance (arriving early each time).

Bobby has two jobs in the food service industry, and clearly enjoys both. It is also clear that Bobby is a valued employee at both jobs.

The first job is at the cafeteria on the Vassar College campus, where he has worked since 2015. He applied for this job and passed the interview without any assistance. Bobby typically works at Vassar for 27 hours each week when school is in session, but is subject to temporary furloughs each May when school is not in session. Bobby hopes to obtain full-time employment{**68 Misc 3d at 724} at Vassar at some point, which would provide greater job security, increased income, and the opportunity to qualify for benefits.

Maria Vandermark is the retail manager for the company that provided food service to Vassar College. She testified that Bobby is a very good employee who comes to work on time, and who is always available to pick up extra shifts. She also testified that Bobby has always been willing to do anything asked of him at work, and confirmed that he has never been disciplined.

Ms. Vandermark testified that she surmised that Bobby has a disability a few weeks after taking over the Vassar account, but that it has never interfered with his job performance and that he does not have any limitations at work. She met Bobby's job coach six months after taking over the account, but has not had any other interactions with that coach. She also testified that Bobby manages his affairs at work without assistance, and that she does not believe that Bobby requires any accommodations.

The second job is at Panera Bread, where he has worked since 2017. Bobby typically works between 15 and 25 hours per week. He found that job opening and applied for it without any assistance.

Sarah Erts is the assistant manager at the Panera Bread that employs Bobby. She testified that Bobby is a really good employee who is reliable and enthusiastic. She also testified that [*14]Bobby always comes to work on time, and that he is eager to pick up extra shifts.

Ms. Erts testified that there are four positions at Panera: cashier, dining room attendant, dishwasher, and line associate. She testified that Bobby is certified for all of these positions, and that he is capable of managing his affairs and performing each of those jobs without accommodation.

Bobby has never been disciplined at either job, and has never requested any accommodations. Bobby testified that he did notify both employers that he has a disability, but only to ward against the risk that any communication deficits associated with his disability might be misconstrued as intentional or deliberate insubordination.

Bobby takes photos of his weekly work schedule so that he can make sure that he gets to work on time. He sets his own alarm, and arranges his own transportation. At first, Bobby got{**68 Misc 3d at 725} to and from work by riding his bike, getting rides from friends, or taking a bus, taxi or an Uber. With his recent purchase of a car, Bobby now drives himself to and from work.

Bobby has been provided a job coach through The Arc of Dutchess and the New York State Adult Career and Continuing Education Services-Vocational Rehabilitation (ACCES-VR). However, he has never used his job coach to obtain a job.

Bobby opened a bank account in May of 2019, and arranged for his paychecks to be deposited in that account. He testified that he pays his rent, monthly cell phone, Internet, Netflix and music subscription fees from that account, rather than seeking the assistance of his guardian in the management of his funds.

When Bobby is working at both Vassar and Panera, his take-home pay is approximately $1,200 to $1,300 per month. When he is furloughed by Vassar each summer, his monthly income drops to $800 per month.

On May 4, 2019, within days of opening his own bank account, Bobby purchased a 2017 Mitsubishi Mirage from a local used car dealership. Bobby selected this dealership based upon an Internet search for "nearby dealerships with good credit acceptance" (rec at 95).

When asked whether he had established a budget prior to arriving at the dealership, Bobby testified that he was hoping to keep his monthly payment between $200 and $400 per month. When asked how he calculated that budget, Bobby testified, "Um, I just based it off of what I do every month." When pressed for details as to how he arrived at his budget decision, he further testified, "I didn't come to my decision. I just went with whatever seemed to work. I didn't really crunch numbers." (Rec at 113.)

Bobby ultimately selected the 2017 Mitsubishi because it was the only car that he liked that was in his presumed budget. The payment for that vehicle is $400.83 per month. Bobby testified that there was no negotiation as to price or terms, and that the dealership adopted a "take it or leave it" attitude. (Rec at 114.)

Bobby also selected Progressive Insurance after an Internet search revealed that several other companies would not insure him as a new driver. He conceded that the $300 to $350 monthly premium quoted by Progressive "wasn't ideal," but stated that he decided to move forward with it because "they were at least offering me something." (Rec at 112.)

{**68 Misc 3d at 726}Bobby did not seek any help in researching car dealerships, types of cars, or insurance options. Bobby also affirmatively hid these efforts from his guardian, stating, "I wanted to tell him, but I didn't really feel that he would support me" (rec at 97). Although Bobby conceded having [*15]some concern about the size of the car payments and insurance premiums before he purchased the vehicle, he nonetheless moved forward without first seeking assistance from friends, family, or other support systems.

When explaining his decision to purchase the car, Bobby emphasized his desire to be available for work. He also cited a desire for independence, stating, "I mean, I hated being the person to leave work and say, 'Hey, can I get a ride home?' At 23, it's just embarrassing for me." (Rec at 112.)

Bobby's monthly car payment and insurance obligations are $700 to $750 per month. He made this purchase in early May, knowing that he would be furloughed by Vassar for the summer in mid-May, and knowing that his take-home pay would drop to $800 per month once that annual furlough took place. He also testified that he understands that there are additional expenses associated with car ownership, including gas and maintenance. When asked how he planned to pay his first car repair bill, he admitted that he would have to ask family friends for money.

Although Bobby testified that he asked for additional hours at Panera to help compensate for the impact of the Vassar furlough, he did not make this request until several weeks after he purchased the car. He also did not provide any indication that his request for extra hours had produced a meaningful increase in his Panera income.

As a result of the stress that the car purchase has placed on his finances, Bobby has had to cancel his Netflix, Hulu, and Spotify subscriptions, and anything else "that wasn't essential to my day-to-day" (rec at 98). He denied having to make any compromises as to food, stating that he can eat for free at Vassar, even during the summer furlough, and that he also takes advantage of his employee discount at Panera.

Bobby did not articulate any plan for the payment of his $360 monthly rent. Although he did testify that Hudson River Housing has been flexible in the past, and has provided him with additional time to make rent payments as needed, this flexibility has been limited to payment extensions, and has not included rent forgiveness. These past extensions have also{**68 Misc 3d at 727} been tied to temporary dips in his income, not to increased costs associated with discretionary, big-ticket spending decisions.

Sometime in June or July of 2019, Bobby reached out to Carl Chu, Esq., for assistance. Mr. Chu is an experienced and well-respected local attorney who was friendly with Bobby's parents. Mr. Chu served as Bobby's attorney in Family Court for the duration of his foster care placement. Mr. Chu has also developed a personal relationship with Bobby, and has stayed in contact with him since their professional relationship terminated when Bobby aged out of foster care.

Mr. Chu testified that Bobby was understandably very upset after his mother passed, but that he has "morphed" and "changed" over the years (rec at 76). Mr. Chu spoke very highly of Bobby's work ethic, first as a student in high school and now at Panera and Vassar. Mr. Chu also testified that Bobby periodically seeks his advice, and that he is happy to provide Bobby with assistance and advice whenever it is needed.

With respect to the car payments, Mr. Chu testified that he had reviewed the contract of sale and financing agreement, that the interest rate was exorbitant and appeared to exceed 24% annually, and that the final cost of the vehicle was at least three times its actual value. Although Mr. Chu attempted to informally intervene with the dealership on Bobby's behalf, he was not able [*16]to resolve the matter, which has left open the prospect of potential litigation to void the contract.

When asked whether Bobby understood that the price he was charged for the car was wildly inflated compared to its value, Mr. Chu testified, "I think that Bobby wanted to get into the car and he was being given a plan that was—it seemed that he was able to make the plan" (rec at 83). When asked if Bobby's disability would serve as a basis for the action to void the contract, Mr. Chu stated, "I don't want to answer that question, because that was the status of being at the time of him purchasing the car versus status now." (Rec at 81-82.)

Although this response seems to suggest that Mr. Chu believes that Bobby did not have the capacity to enter into a contract in May of 2019, Mr. Chu later testified that he has never believed that Bobby needs a guardian. Mr. Chu also confirmed that he continues to believe that Bobby does not need a guardian, and that he also believes that Bobby has learned from his mistakes.{**68 Misc 3d at 728}

When asked whether he was taking steps to improve his money management skills since his ill-fated decision to purchase the car, Bobby testified that his bank, Hudson Valley Federal Credit Union, offers free financial service counseling for its members. Bobby has not yet taken advantage of those services. Although he claimed at one point that he planned to meet with a bank representative the following week, I found that assertion to be lacking in credibility, or at most a last minute attempt to cover for his failure to seek these services earlier.

Bobby testified that he currently receives health insurance benefits through Medicare, and that his secondary insurance is provided through Medicaid. He also testified that, as a former foster care child, he can maintain Medicaid coverage through the age of 26.

Bobby has a primary care doctor in Hyde Park. He also has a local dentist. He sees both doctors for regular checkups and as needed. Bobby schedules those appointments and handles his transportation without assistance.

Bobby also sees a psychiatrist once every two months. He is able to identify the medication that she prescribes, and can explain its purpose. Bobby makes these appointments, handles his transportation, fills his prescriptions, and takes his medication without assistance.

When asked during his direct testimony whether he receives any services through OPWDD, Bobby responded, "To my knowledge, I'm not entirely aware." He also acknowledged meeting with an OPWDD caseworker named Kyle Kelly in 2018 about potential services that he could be eligible to receive, but stated somewhat cryptically, "It hasn't really gone past that, though." (Rec at 107.)

When pressed to identify the services he and Mr. Kelly discussed, Bobby testified, "I believe they were housing. I don't know beyond that though," and that he could not remember if they discussed any other services (rec at 118-119). When asked whether he had any plans to speak with Mr. Kelly again, Bobby claimed that he was always open to assistance, but then quickly noted that he does not have any current housing needs. And while professing to have an open mind about other services that might be available to him, Bobby testified that he could not recall the last time that he spoke with Mr. Kelly, and admitted that he did not have any appointment or other plans to speak with him in the future.{**68 Misc 3d at 729}

Kyle Kelly is a care manager and direct support professional for people with intellectual and developmental disabilities. His responsibilities include linking individuals and their families with providers, helping them advocate for themselves, and setting up services for them.

Mr. Kelly testified that he first met Bobby in June of 2018. At that time, they discussed OPWDD services that were potentially available to Bobby, including a housing subsidy and community services. Mr. Kelly described these community services "as a one-to-one type service where Bobby would essentially get linked up with a staff that would help him work toward community-based goals." (Rec at 59.)

Mr. Kelly testified that when they met in June of 2018, Bobby "was on the fence with services initially, meaning that he was not sure if he wanted to receive services." (Rec at 61.) Mr. Kelly also testified that he reaches back out to Bobby periodically to see if he is interested in receiving services, and that Bobby is "still on the fence." (Rec at 63.)

When asked whether he had any sources of income other than his paychecks, Bobby testified, "Directly, no." When asked about indirect sources of income, Bobby testified that his Uncle Michael controls the trust that his mother established for him, and that funds have been made available to him from that trust in the past to pay expenses like rent and medical services. Bobby also testified that he wants to see that trust paid into a pooled trust, and demonstrated an understanding that he could make requests for distributions from the administrator of that pooled trust. Bobby did not indicate any awareness as to the amount of money being held in his trust, or as to the nature of a supplemental needs trust.

Finally, Bobby testified that he has noticed some small things when it comes to his autism, but that he does not believe that it has any grave impacts, and that he does the best he can every day. He also testified that he is seeking the termination of his guardianship because he believes that he is capable of living on his own and handling his own affairs, stating, "I've come a long way and I want to show that" (rec at 107).

There is much to like and admire about Bobby. He has faced and overcome many obstacles in his life. The loss of his father when he was only seven years old. The loss of his mother when he was only 12 years old. His subsequent placement in long-term foster care, and the challenges associated with that existence.{**68 Misc 3d at 730}

Bobby has met each of these obstacles head on, while also confronting the challenges associated with his autism spectrum disorder diagnosis. However, he has not allowed that diagnosis to define him, or to serve as an excuse or as a crutch. Rather, he has worked assiduously to achieve and maintain his independence, and to freely exercise his intrinsic right to autonomy and self-determination. If asked to pick one word that defines Bobby, that word certainly would not be autism. It would be perseverance.

[2] Bobby has demonstrated that he no longer needs a guardian of his person, and that it would be in his best interest to restore his right to manage his personal affairs without the oversight or control of a guardian of the person. He graduated from high school with a Regents diploma. He has successfully transitioned to independent living. He holds down two jobs, and is a valued employee at both, operating with minimal supervision and no need (or desire) for accommodation. He manages his work and personal schedules without assistance. He does his own grocery shopping, laundry, and food preparation. He manages his doctor, dentist and psychiatry appointments, understands his health insurance, knows when to seek medical care, can identify his medications and explain their purpose, and takes them appropriately. He enjoys spending time with friends, shops for his own clothes, and maintains good hygiene. He is capable of navigating public and private transportation options, and travels independently both locally [*18]and in other regions.

Accordingly, the petition is granted to the extent that it seeks termination of the guardian of the person.

The property guardianship is a different matter. To be sure, there is no question that Bobby is intelligent. His Regents diploma, his IQ score, and his demonstrated ability to manage his personal affairs all stand as testaments to his intelligence. But intelligence is not the deciding factor when assessing functional capacity (Matter of Ehmke, 164 Misc 2d 609, 615 [Sup Ct, Queens County 1995]). Rather, under the functional capacity rubric, the proper focus "is one's functional limitations and whether or not an individual will suffer harm as a result of these functional limitations." (Id. [finding that the respondents lack functional capacity even though they "suffer no mental impairment, and . . . are intelligent individuals, capable of making themselves understood"]; see also Matter of Cathy R., 268 AD2d 302, 302 [1st Dept 2000] [finding that the respondent{**68 Misc 3d at 731} lacks capacity to manage her property, even though she is "a very intelligent woman capable of taking care of her personal needs"].)

[3] Here, the evidence presented during the hearing confirms that Bobby has a developmental disability that impairs his functional capacity to manage his property. Although Bobby may be capable of understanding his finances on a rudimentary level, it was readily apparent that this understanding is superficial, and that Bobby lacks the capacity to budget his money or to manage his property without assistance. It was also readily apparent that Bobby does not recognize that he has functional limitations in this area, and that he is not yet ready to accept support and assistance in this area.

The car purchase vividly illustrates Bobby's functional limitations, his inability to recognize those limitations, and his lack of an effective support system. Within days of opening a personal bank account outside the control of his guardian, Bobby committed to a disastrous financial transaction: the purchase of a vehicle that he could not afford on predatory purchase and finance terms, which he actively hid from his guardian. Although Bobby admits that this transaction was "not ideal" and that it was a "bad decision," his testimony also seeks to minimize the ruinous effect of this transaction, and reveals minimal insight into his functional limitations. That testimony also reflects an inability (or unwillingness) to understand and appreciate the nature and consequences of those limitations, and demonstrates that Bobby will be exposed to a substantial risk of harm if the property guardianship is not continued.

Most glaringly, the evidence presented during the hearing demonstrates that Bobby lacks an effective support system—not due to a lack of available resources, but due to Bobby's fierce sense of independence, which has made him resistant to seeking or accepting help from others. For instance, Kyle Kelly met with Bobby in June of 2018 to identify housing subsidies and community services that may be available to him. But Bobby has never chosen to take advantage of those services, has continuously advised Mr. Kelly that he is "on the fence" about seeking that help, and was vague and evasive when asked about those services during the hearing. Likewise, although Bobby claims to be interested in receiving financial management instructional services from his bank, he had not taken any steps to access those services by the time of the{**68 Misc 3d at 732} hearing, and offered unconvincing testimony that he planned to explore those services after the hearing. Bobby has also shown reluctance to using the services of his job coach (having declined to use a coach when he identified and obtained his current jobs, and having declined to use the coach to [*19]look for better employment opportunities), and maintains fleeting contact with his case manager at Hudson River Housing.

Accordingly, the petition is denied to the extent that it seeks termination of the property guardian. I find that Bobby has not demonstrated that he no longer needs a property guardian. He also has not demonstrated that it would be in his best interest to terminate the property guardianship, or that there are less restrictive alternatives to the continuation of the property guardianship under the circumstances as they currently exist.

That last phrase—under the circumstances as they currently exist—is essential to a proper understanding of this decision. There is little doubt in my mind that Bobby would thrive with an active and engaged support system. Therefore, the petition to terminate the property guardianship is denied without prejudice to renewal upon a showing that Bobby has established a network of family, friends and/or community sources who are actively engaged and provide him with supported decision making. (See Matter of Joseph D., Sur Ct, Suffolk County, May 23, 2019, Whelan, S., file No. 2009-1493/A [guardianship terminated upon showing that the ward had a "circle of support" including his brother, sister, and a case manager]; Matter of Capurso [guardianship terminated upon a showing that the ward had an engaged, active supported decision-making network]; Matter of Michael J.N., 58 Misc 3d 1204[A], 2017 NY Slip Op 51925[U], *4 [guardianship terminated upon a showing that the ward is "in a structured living situation, where he has many layers of assistance and many layers of protection" (internal quotation marks omitted)]; Matter of Caitlin, NYLJ, Mar. 21, 2017 [guardianship denied where the ward's family provided a "strong and reliable network" that is "directly or indirectly involved in much of her decision-making in the areas of healthcare, education and financial decisions . . . (and) who are strongly involved in her care and decision-making"]; Matter of Michelle M. [guardianship denied where the ward had capacity to make decisions with the help of family and community support services, and a history of actively consulting them in her decision-making process]; Matter of D.D., 50 Misc 3d at 674 [guardianship denied where the ward had an extensive support{**68 Misc 3d at 733} system including family and community service providers, and a history of consulting with that support system "before making significant decisions"]; Matter of Dameris L., 38 Misc 3d at 579 [guardianship denied where ward utilized an extensive support system, including family members, a neighbor, and a social worker].)

I find that Bobby does not need a guardian of the person, and that forcing him to unnecessarily surrender his right to make decisions about his person is not in his best interest. The petition is granted to the extent that its seeks termination of the guardianship of his person.

However, I find that Bobby is a developmentally disabled person who still needs a property guardian, and that continuing the property guardianship is in Bobby's best interest. While this finding will undoubtedly be a source of disappointment to Bobby, it is my sincere hope that it will also motivate him to develop a more robust support system. Therefore, the petition is denied to the extent that it seeks termination of the property guardianship, without prejudice to renewal upon a showing that Bobby has an active and engaged support system.

When normal court operations resume, the parties will be directed to appear before this court for a hearing to select a new guardian. Michael shall continue as Bobby's property guardian until that designation is made.

SCPA 1758 states that, after the appointment of a guardian, the Surrogate's Court retains jurisdiction to take such steps relating to the guardian as may be necessary or proper for the welfare of the ward.