Guardianship Denied

Denied guardianshipA guardianship case was brought in Kings County before Surrogate Margarita Lopez-Torrez pursuant Section 17A of the Surrogate’s Court Procedure Act.  In this proceeding the petitioners asked to be appointed guardians of Elit.  Surrogate Margarita Lopez-Torez found this would result in the complete removal of Elit’s legal rights to make any decisions over his affairs.  Justice Margarita Lopez-Torrez ruled a court was not allowed to limit or tailor a guardianship’s scope to Elit’s specific needs.  She held that Article 17A guardianships are distinguishable from Article 81 guardianship that can expressly provide a tailored approach to meet the alleged incompetent’s personal needs.

The Judge’s Ruling

Surrogate Margarita Lopez-Torrez ruled the legal standard was not that petitioners could make better decisions than Elit.  The standard was does Elit have the capacity to make his own decisions.  Surrogate Lopez-Torrez found the evidence presented to the court did not show Elit had an inability to make decisions on his own with regard to supporting himself.  She stated no actual harm resulted from the decision making shown by the evidence presented to the court.

She also stated there was no harm to Elit which would be prevented by the appointment of a guardian.  Surrogate Lopez-Torrez found Elit was an adult with some cognitive limitations, but she found Elit had decision making capacity which allowed him to manage his own affairs with the sufficient and reliable support of family members.  Elit was already consulting with the petitioners with regard to the managing of his affairs.  In the end Surrogate Lopez-Torrez found imposing a guardianship of Elit was not in his best interests.  The petition to be appointed guardian under Article 17A of the Surrogate’s Court Procedure Act by the petitioners was dismissed.


There are 2 types of guardianship.  One under 17A of the Surrogate’s Court Procedure Act and the second one under Article 81 of the Mental Hygiene Law.  In this case a guardianship under Article 81 of the Mental Hygiene Law had a better chance of success than the procedure brought under Article 17A of the Surrogate’s Court Procedure Act.

Elliot S. Schlissel, Esq. is a guardianship caseguardianship lawyer.  He represents individuals regarding  guardianship issues throughout the Metropolitan New York area.  He has been dealing with guardianship matters for more than 30 years.  He can be reached for a free consultation at 800-344-6431 or e-mailed at

Mother Appointed Guardian of Developmentally Disabled Son

A person signing guardianship papers

In a proceeding before Surrogate Rita Mella in Manhattan Surrogate’s Court both a mother and a father had brought an Article 17A guardianship proceeding under the Surrogate Court Procedure Act (“SCPA”). Each of the parents sought to be appointed the guardian of Elijah J., a developmentally disabled individual. A guardian ad litem (temporary guardian during the court case) was appointed by the court to conduct an investigation as to who would be the more appropriate individual to be the Article 17A guardian for Elijah. The guardian ad litem concluded that the mother was the more appropriate person to be appointed guardian. She had acted as Elijah’s primary caretaker for his entire life.

Evidence Submitted

There was also uncontroverted testimony and documentary evidence submitted that Elijah was indeed a developmentally disabled individual who did not have the capacity to make health care and other decisions for himself. The court decided it would be in Elijah’s best interest for a guardian to be appointed for him.

Father Not Involved with Day to Day Care

The court also found that the father had failed to present evidence of his substantial involvement with Elijah. The father also failed to show that he was familiar with Elijah’s medical care and personal needs. He was also not sufficiently up to date with regard to Elijah’s educational progress. Judge Mella found the father’s failure to establish he had a plan for Elijah’s needs and the fact that he had not participated in raising Elijah or taking care of Elijah would make him an unsuitable person to become Elijah’s guardian. Justice Mella therefore granted the mother’s petition to become Elijah’s guardian. She also appointed the father as the standby guardian (guardian if mother is no longer available for Elijah.

Attorney Elliot Schlissel

The Law Offices of Schlissel DeCorpo brings guardian cases throughout the Metropolitan New York area both under the Surrogate’s Court Procedure Act Article 17A and under Article 81 of the New York Mental Hygiene Law.