By Ben Bedell
November 3, 2015
A Brooklyn Surrogate Court judge denied a guardianship petition sought by family members of a 29-year-old man with Down Syndrome, saying their objection to him marrying was an insufficient basis for appointing them guardians.
"The right to have a family of one's own is not reserved only for persons with no disabilities," Surrogate Margarita López Torres said, "and the yearning for companionship, love, and intimacy is no less compelling for persons living with disabilities."
|Surrogate Lopez Torres|
The family members produced certificates from two physicians asserting that by reason of his intellectual disability, D.D. was "indefinitely incapable of managing himself and/or his own affairs."
"These certifications are boilerplate forms that include sections where the affirmant checks off pre-printed conclusions" and were "wanting in useful information." López Torres said.
Because she was concerned that a full factual record was not before the court, López Torres took the unusual step of appointing a guardian ad litem from a new clinical program at Brooklyn Law School that represents indigent people with intellectual disabilities.
The Advocates for Adults with Intellectual and Developmental Disabilities Legal Clinic provided an 18-page report based on interviews with a dozen coworkers and friends of D.D., as well as D.D. and his family.
The opinion in Matter of Guardian for D.D., 2014-2185, concluded, on the basis of the report and D.D.'s testimony at a hearing, that D.D. was able to work, has an "active social schedule," can "travel independently to familiar destinations using public transportation," and can "attend to his own personal care and hygiene."
"The guardian ad litem recommends alternatives to guardianship, such as a durable power of attorney and health care proxy, to meet any financial and healthcare concerns expressed by petitioners and if desired by D.D.," López Torres said.
Professor Natalie Chin, the legal clinic's director, said that "in an Article 17-A proceeding, the person for whom the guardianship is proposed has no due process rights at all."
"There is no requirement that a guardian ad litem be appointed, or even that a hearing be held in the presence of the person, as there is in an Article 81 proceeding," Chin added. "But in an Article 17-A the person loses all their autonomy, the right to vote, the ability to marry, to have a say in health care and financial matters."
Chin said the courts don't have the resources to do what the legal clinic can do "because there are no funds available to pay for a guardian ad litem."
López Torres quoted from the recent U.S. Supreme Court decision legalizing gay marriage nationally in Obergefell v. Hodges, 576 US__, 135 S Ct 2584 (2015), saying marriage "rises from the most basic human needs; marriage is essential to our most profound hopes and aspiration."
D.D., who lives with his mother, testified that he had been saving for an engagement ring for a woman he had been dating for several years. He told the guardian ad litem that he would like to live independently in the future.
D.D.'s mother testified that she adamantly opposed the relationship and feared that "if a child were to come of the union, that child would have Down syndrome." The scientific evidence, according to National Down Syndrome Society, is that less than 1 percent of Down Syndrome cases are caused by an inherited condition.
"There is no doubt that the petitioners deeply love and are devoted to D.D. and are motivated by what they believe is in his best interest," López Torres said. "However, the standard here is not whether the petitioners can make better decisions than D.D., it is whether or not D.D. has the capacity to make decisions for himself with the support that he abundantly has."
Nancy Delaney, a partner at Curtis, Mallet-Prevost, Colt & Mosle, represented the petitioners. She did not respond to an email requesting comment.