In the Matter of Anna F. (Anonymous). Faina Laut, petitioner-appellant. File No. 1908/16
Family Center, Brooklyn, NY (Lauren Elizabeth Groetch of
counsel), for petitioner-appellant.
C. DILLON, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
guardianship proceeding pursuant to Surrogate's Court
Procedure Act article 17-A, the petitioner appeals from an
order of the Surrogates Court, Kings County (Margarita Lopez
Torres, S.), dated February 16, 2017. The order, after a
hearing, denied the petition and dismissed the proceeding.
that the order is reversed, on the law and the facts, without
costs or disbursements, the petition for guardianship
pursuant to Surrogate's Court Procedure Act article 17-A
is granted, and the matter is remitted to the Surrogate's
Court, Kings County, for the entry of an appropriate decree
naming the petitioner to serve as guardian of Anna F.
petitioner commenced this proceeding in August 2015, pursuant
to Surrogate's Court Procedure Act article 17-A, seeking
to be appointed guardian of her sister, Anna F. A hearing was
held on the petition, at which the petitioner established
that Anna, then 51 years old, had suffered severe
intellectual disability most, if not all, of her life.
Anna's primary care physician certified that Anna suffers
from "cerebral palsy with profound mental
retardation,"  and is in need of 24-hour supervision,
as she is not capable of feeding herself or moving about on
her own. A psychological evaluation by the YAI-National
Institute for People with Disabilities confirmed that
was "largely nonverbal" and
"non-ambulatory" and that she was so cognitively
limited that her intelligence could not be successfully
evaluated employing traditional IQ tests. Utilizing the
Bayley Scales of Infant and Toddler Development, the
evaluator assessed Anna of having attained a developmental
age equivalent of 4 months, 10 days.
hearing, the petitioner testified that her parents had cared
for Anna her entire life, until 2014, when both parents died.
Since that time, Anna had remained in the apartment she had
lived in with her parents, and home attendants were assisting
her 24 hours a day. The petitioner further testified that
although she had been able to manage some of Anna's
affairs, she was limited without court-authorized
guardianship, and had experienced difficulty in renewing the
lease for the apartment where Anna lived and in maintaining
Anna's Supplemental Nutritional Assistance Program
benefits. In support of the petition, the petitioner
submitted the affirmation of Anna's primary care
physician and the affidavit of a licensed psychologist who
also evaluated Anna, in which each independently concluded
that Anna was incapable of managing herself and her affairs
by reason of her disability, which was permanent in nature or
likely to continue indefinitely. In the order appealed from,
the Surrogate's Court denied the petition and dismissed
the proceeding, concluding, without discussion, that a
proceeding under Mental Hygiene Law article 81 would be more
appropriate. The petitioner appeals.
to article 17-A of the Surrogate's Court Procedure Act,
"the court is authorized to appoint a guardian of the
person [who is intellectually disabled]... if such
appointment... is in the best interest of the person who is
intellectually disabled." Under the statutory scheme, a
person is intellectually disabled if that person has been
certified by, among other possibilities, one licensed
physician and one licensed psychologist "as being
incapable to manage him or herself and/or his or her affairs
by reason of intellectual disability and that such condition
is permanent in nature or likely to continue
indefinitely" (SCPA 1750).
the record establishes that Anna is intellectually disabled
within the meaning of Surrogate's Court Procedure Act
article 17-A. Further, the record also establishes that it
would be in Anna's best interest to have the petitioner
appointed as her guardian. The record shows that Anna is
incapable of providing for her most basic needs and that in
the absence of court-authorized guardianship, the petitioner,
Anna's only sibling, is unable to adequately manage
Anna's affairs. Nothing in the record suggests that the
petitioner is unqualified to act as Anna's guardian. To
the contrary, despite the legal limitations she has
encountered, the petitioner has been managing Anna's
affairs and providing for Anna since their parents'
deaths. Accordingly, the Surrogate's Court should have
granted the petition (see Matter of Mark C.H., 28
Misc.3d 765, 776 [Sur Ct, NY County]; cf. Matter of
Michelle M., 52 Misc.3d 1211');">52 Misc.3d 1211 [A] [Sur Ct, Kings County];
Matter of Chaim A. K., 26 Misc.3d 837, 843 [Sur Ct,
NY County]). We grant the petition and remit the matter to
the Surrogate's Court, Kings County, for the entry of an
appropriate decree naming the petitioner to serve as
Anna's guardian (see SCPA 1754).
DILLON, J.P., ROMAN, HINDS-RADIX and BRATHWAITE NELSON, JJ.,
 The physician's affirmation certifying
Anna's diagnosis was dated March 17, 2015, which was
prior to the July 21, 2016, amendments to article 17-A of the
Surrogate's Court Procedure Act replacing "mental
retardation" with "intellectual ...