By: Gabriella Ayzidor ’27
Volume XI – Issue I – Fall 2025
I. BACKGROUND
The Willowbrook State School was originally founded in 1948 to house and treat people with disabilities. Located in Staten Island, New York, it was initially viewed as a safe institution where individuals could receive what was considered proper care for their disabilities at the time. However, due to chronic understaffing, along with a limited understanding of and marginalized views toward individuals with diverse disabilities, residents received a “one-size-fits-all” approach to care and were mistreated by their caretakers. Senator Robert Kennedy first exposed the inhumane treatment of Willowbrook State School Residents when he visited the institution in 1965. In an interview, he described the facility by stating,
“We have a situation that borders on a snake pit, and that the children live in filth, that many of our fellow citizens are suffering tremendously because of lack of attention, lack of imagination, [and] lack of adequate manpower.” [1]
In 1973, the New York State Association for Retarded Children filed suit against the Willowbrook State School. At the time, over 4700 residents across 53 buildings living with disabilities received inadequate care and suffered frequent injuries. In New York State Association for Retarded Children, Inc. v. Rockefeller (357 F. Supp. 752, 756 (E.D.N.Y. 1973)), the court found that:
“In spite of legislative reports dating from 1964, which complained of overcrowding and inadequate staffing at Willowbrook, conditions are still inhumane. The institution has not yet recovered from a hiring freeze which prevented even the replacement of departing staff members from December 1970 until November 1971 and prevented the hiring of any additional staff until January 1972.
Only 27 percent of the residents at Willowbrook are there on voluntary application. These are not treated any differently from those who are there under court order. Even those who are there on voluntary application (usually of their parents or guardians) have no other place to go. Testimony of ten parents, plus affidavits of others, showed failure to protect the physical safety of their children, and deterioration rather than improvement after they were placed in Willowbrook School. [...] During eight months of 1972 there were over 1,300 reported incidents of injury, patient assaults, or patient fights.” [2]
The exposure of the inhumane treatment of children with intellectual and developmental disabilities at Willowbrook, with reports of broken teeth and bitten off body parts, sparked demand for reform and greater protections for individuals as they aged into adulthood. However, these people continued to lack the ability to make decisions and take care of themselves. In response to this lack of structured legal guidance, the New York Legislature enacted Article 17–A of the Surrogate’s Court Procedure Act in 1969. [3] This statute provided a means for parents and guardians to obtain full guardianship over individuals with intellectual and developmental disabilities. [4] Although the legislation’s terminology and procedures are now considered outdated, Article 17–A continues to govern how guardianship is granted for individuals with intellectual and developmental disabilities today.
Ⅱ. FRAMEWORK OF ARTICLE 17–A
Article 17–A of the New York Surrogate’s Court Procedures Act allows the appointed guardians of an individual with intellectual developmental disability to make crucial decisions about an individual's personal or financial affairs due to their inability to make informed decisions. Under Article 17–A Guardians of Persons Who are Intellectually Disabled and Developmentally Disabled (§§ 1750 — 1761), in order to be granted guardianship over an individual the following must be proven:
“1. For the purposes of this article, a person who is intellectually disabled is a person who has been certified by one licensed physician and one licensed psychologist, or by two licensed physicians at least one of whom is familiar with or has professional knowledge in the care and treatment of persons with an intellectual disability, as being incapable of managing 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.
2. Every such certification pursuant to subdivision one of this section… shall include a specific determination… as to whether the person who is intellectually disabled has the capacity to make health care decisions for himself or herself.” [5]
This ruling strips an individual with an intellectual or developmental disability of their decisionmaking rights based on diagnosis, rather than capability or function. There are other legal frameworks in New York to obtain guardianships, such as Article 81 of the New York Surrogate's Court Procedure Act, Proceedings for Appointment of a Guardian for Personal Needs or Property Management, which states that:
“It is the purpose of this act to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person’s life.” [6]
Despite the benefits of Article 81, Article 17–A remains the most restrictive, common, and easiest proceeding of receiving guardianship law. To receive 17-A guardianship, the petitioner must file through the Surrogate Court in their designated county and provide the following legal forms:
“an Article 17–A Guardianship petition, Combined Oath and Designation or Combined Corporate Consent and Designation, Affidavit of the proposed guardian, Affidavit (certification) of Examining Physician or Licensed Psychologist and/or the Affirmation (certification) of Examining Physician, Waiver of Process Renunciation Consent to Appointment of Guardian, Consent, Oath and Designation, Notice of Petition, Affidavit of Mailing of Notice of Petition [, and] 17-A Guardianship Citation.” [7]
Whereas Article 81 requires a hearing to obtain guardianship, the Article 17-A form process does not. Although there are alternatives to guardianship outside of Article 17–A and Article 81, such as power of attorney and health care proxy, these documents can only allow control over specific issues. For example, a Power of Attorney may only make financial decisions for an individual, compared to a Health Care Proxy who may only make medical decisions for the individual. While one does not need an attorney to obtain guardianship over another to file these legal documents, these processes do not allow the individual seeking guardianship to be a participant in the decision-making process.
Ⅲ. MATTER OF MICHELLE M.
Despite its accessibility, Article 17-A’s lack of safeguards has raised concerns about its potential for overreach and misuse. A recent case which demonstrates the dangers of establishing full guardianship can be seen in Matter of Michelle M. (2016). Michelle is a 34-year-old woman from Brooklyn, New York living with Down syndrome and an intellectual disability. Since 2008, Michelle has been living with two roommates in Brooklyn, enjoying an independent life. She enjoys cooking and grocery shopping for her and her roommates as well as working a part time job at a store where she travels independently. She routinely attends her doctors’ appointments and takes her medication daily without fail. In her free time, Michelle enjoys shopping, spending time with her boyfriend, and hosting her friends at her apartment. Despite her clearly demonstrated capability to maintain an independent lifestyle, her parents Nicole and Daniel M. filed a petition in the Kings County Surrogate’s Court to be appointed as guardians of her person under Article 17–A. Despite Michelle's previous demonstration of agency in adulthood, her parents alleged that they needed to petition for guardianship over Michelle as she may not be able to make the safest decisions regarding her medical care and daily life. During the hearing, counsel for petitioner Nicole M. asked whether she felt her daughter Michelle was able to make decisions about her care without external input. Nicole M. went on to state:
“She can make decisions but she doesn't follow through. She needs to be directed on a daily basis. She needs somebody really on top of it. She can make a decision but it's not always the right decision. Then when she decides and she knows and she understands that it has to be a certain way, she doesn't always do it.” [8]
Mental Hygiene Legal Services (MHLS) represented Michelle and contested the guardianship petition filed by her parents. Michelle’s MHLS attorney argued that she does not require a guardian as she already has appropriate support services in place; Michelle had been part of a vocational and recreational activities program that was run by Ohel Bais Ezra, an agency that provides support for individuals with intellectual and developmental disabilities.
While under further questioning regarding their reasoning behind petitioning for guardianship over Michelle, her parents claimed that they were not aware of her visits to the doctor. Her parents were also unable to list a time in which Michelle made medical decisions that were not in her best interest and lacked evidence to prove that Michelle was unable to make the same independent decisions she made prior to the petition for guardianship. After reviewing the testimony, psychological evaluations, and proof of Michelle’s capabilities, Judge Torres denied the petition for Article 17–A guardianship. The court stated,
“It is evident that the petitioners deeply love and care for Michelle, wanting what they believe is best for her. But while parents' desire for peace of mind and natural instinct to protect their loved one may be assuaged by the appointment of a guardian, it is not, however, in the best interest of a person with the capacity to make independent decisions to have her decision making wholly removed through Article 17–A guardianship, no matter how well-intentioned the guardian.” [9]
Although Matter of Michelle M. ended favorably for Michelle in affirming her autonomy and right to supported decision-making, the case demonstrates the danger of Article 17-A’s restrictive nature. It shows the ease with which parents are able to petition for guardianship despite their children having proven capability of full autonomy. It also underscores the lack of nuance between full, plenary guardianship and complete independence from supportive decision making, leaving individuals either stripped of their legal independence or left without proper protective support. In cases where individuals need more help or input in their decision-making compared to Michelle, they rely on this hard-line approach which prioritizes “safety” over self-determination.
Ⅳ. CONSEQUENCES OF ARTICLE 17–A
Restrictive guardianship leads to over-controlled, dangerous environments that cause feelings of powerlessness for individuals in these situations. The impacts of an overly restrictive environment become apparent when looking at evidence such as “Crime Against Persons with Disabilities, 2009-2019 - Statistical Tables,” a report done by the U.S. Department of Justice in 2021. The report found that 26.5 percent of violent victimization incidents against a person with disability were cases of rape or sexual assault. [10] Additionally, the report uncovered that among the rape and sexual assault victims with disabilities, nearly 90 percent of them knew their offender, in 32 percent of these cases the abuser was a family member, and in 44 percent of these sexually violent cases the perpetrator held responsibility directly related to the care of the victim, holding jobs in roles such as personal care staff. [11] This evidence demonstrates how restrictive environments can increase vulnerability rather than ensure protection. Furthermore, individuals with intellectual and developmental disabilities are often unaware about how to differentiate safe versus unsafe situations or how to respond if abuse occurs. All of these factors create an environment in which individuals with intellectual and developmental disabilities are disproportionately at risk of sexual abuse from guardians or caregivers, as individuals with cognitive disabilities have the highest rate of being victims of violent crime. [12]
Although there are laws in place to protect individuals with disabilities, such as New York Penal Law Article 260.34, these measures are often insufficient in practice. Article 260.34, titled “Endangering the Welfare of a Vulnerable Elderly Person, or an Incompetent or Physically Disabled Person in the First Degree,” makes it a Class D felony for a caregiver to intentionally or recklessly cause serious physical injury to a vulnerable person. [13] However, despite such severe legal implications, their protective impact remains limited. For example, a report by the U.S. Department of Justice found that only 19 percent of rapes or sexual assaults against persons with disabilities were reported to police, compared to 36 percent of those against persons without disabilities. [14] This significant gap suggests that the existence of protective laws alone is not enough to ensure safety or justice for individuals with disabilities.
Beyond the lack of reports of sexual assaults, there are limited resources available to those with intellectual and developmental disabilities who experience sexual abuse. Research conducted by the National Institute of Justice found that people with disabilities face significant barriers to reporting sexual assault, as many survivors fear they will not be believed, and there is a lack of services specifically designed for survivors. Data collected from 2008 to 2013 showed that over 70 percent of sexual assault cases involving victims with disabilities were closed without any charges, as there was doubt about the victims’ ability to testify. [15] The lack of victim support structures—especially for individuals with intellectual and developmental disabilities who may have difficulty processing traumatic situations—only contributes to the rising number of disabled individuals who fall victim to crimes related to guardianship abuse. [16]
Ⅴ. PROPOSED SOLUTIONS
The lack of available resources and structural guardian support systems for individuals that have intellectual and developmental disabilities underscores the need for change. By developing accessible, disability-inclusive organizations that not only highlight what sexual abuse may look like, but also outline how to report and heal from it will help ensure that individuals with intellectual and developmental disabilities are both protected from abuse and empowered to seek justice when it occurs. In New York, Senate Bill S.6901-A “Healthy and Safe Students Act,” was introduced to amend the education law in New York state to be a comprehensive sexual education that is a medically accurate, age appropriate sex education teaching the physical, mental, emotional, and social aspects of human sexuality. It also should be trauma-informed and culturally sensitive, include practical skill-building, and ensure respect and inclusion for all students. [17]
This act will come into effect on July 1st, 2026, which is a significant step towards ensuring students with disabilities have inclusive and informed sexual education to help them recognize and report sexual abuse. However, this act does not ensure the language and format of instruction is adapted for individuals with intellectual and developmental disabilities. Programs such as the “Elevatus Training” curriculum should be used as an example of how sex education that helps individuals with intellectual and developmental disabilities recognize and understand sex as well as sexual abuse can be adapted. [18] The program provides plain language in explanations, visual aids, role-playing and repetition to reach important topics in a way that students with cognitive disabilities can fully understand their rights, communicate boundaries, and which resources are there for help when needed. [19]
Finally, New York’s Article 17–A guardianship law, as demonstrated previously, has long been overly restrictive by removing all decision making rights from individuals with disabilities regardless of their actual capacity if granted. To promote guardianship based on functionality and support the autonomy of individuals regardless of disability, New York should increase funding and expand access to the Supported Decision-Making New York project. The facilitation process is based on four main criteria: (a) which areas does the individual want support in, (b) what kind of support they require, (c) who they would prefer to receive assistance from, and (d) how they prefer to receive that assistance. [20] This project will not only allow individuals with disabilities to retain their legal rights, it will also allow them to choose their legal guardian and be aware of decisions that are made regarding health care, finances, housing and more. In addition, many families like Michelle’s pursue Article 17–A guardianship due to fear or lack of awareness of other guardianship options. New York should fund community-based organizations, disability rights groups, and legal aid providers who can help develop educational campaigns of alternatives to Article 17– A guardianship. One example of an amazing community-based organization is “YAI: Seeing beyond Disability” founded in Brooklyn, New York. YAI provides proper training and resources on sexuality for caregivers and specifically for individuals with intellectual and developmental disabilities. [21] These resources are accessible in plain language and provide clear answers to frequently asked questions, encouraging viewers to reach out with more questions when needed.
Adopting these reforms would help New York state provide a better guardianship system as well as give individuals with disabilities autonomy in their daily lives. By creating person-centered models as well as education around both sex and supported decision making, cases such as Michelle’s could be avoided. These solutions would help end overly restrictive and outdated systems like Article 17–A and build a better system in which individuals with disabilities can use their true self-determination.
Endnotes
[1] Disability Rights Tennessee, Willowbrook 51 Years Later: A Look at History and Modern Advocacy (Jan. 6, 2023), https://www.disabilityrightstn.org/willowbrook-51-years-later-a-look-at-history-and-modern-advocacy/. Accessed 10-28-2025
[2] N.Y. State Ass’n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752, 756 (E.D.N.Y. 1973) https://plus.lexis.com/document?pdmfid=1530671&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3A contentItem%3A3S4V-JT50-003B-34S4-00000- 00&pdcontentcomponentid=6412&ecomp=b7ttk&earg=pdsf&prid=1a076699-35a8-4ccc-97fc594a3e3524fc&crid=d2e4fb08-dfd5-40ff-9276- 5260e9153692&pdpinpoint=PAGE_756_1103&pdsdr=true#/6c10db10-4715-4415-afc0-8f15999c9192
[3] SDMNY, A New Attempt to Reform an Outmoded Guardianship Law, SDMNY (May 29, 2024), https://sdmny.org/a-new-attempt-to-reform-an-outmoded-guardianship-law/ Accessed 10-28-2025
[4] N.Y. Surrogate’s Ct. Proc. Act § 1750 (McKinney 2025) https://plus.lexis.com/document?pdmfid=1530671&pddocfullpath=%2Fshared%2Fdocument%2Fstatuteslegislation%2Furn%3AcontentItem%3A8JST-R832-D6RV-H4TS-00000- 00&pdcontentcomponentid=9101&ecomp=6xgg&earg=pdsf&prid=54ff4c21-1e5c-4e3d-807ff5f0c2da5130&crid=c559e1fe-a3b2-4acc-b198-5218961cba1f&pdsdr=true#/65792ddf-fd9b-4e79-b83cc77730e05644
[5] N.Y. Surrogate’s Ct. Proc. Act § 1750 (McKinney 2025) https://plus.lexis.com/document?pdmfid=1530671&pddocfullpath=%2Fshared%2Fdocument%2Fstatuteslegislation%2Furn%3AcontentItem%3A8JST-R832-D6RV-H4TS-00000- 00&pdcontentcomponentid=9101&ecomp=6xgg&earg=pdsf&prid=54ff4c21-1e5c-4e3d-807ff5f0c2da5130&crid=c559e1fe-a3b2-4acc-b198-5218961cba1f&pdsdr=true#/65792ddf-fd9b-4e79-b83cc77730e05644
[6] N.Y. Mental Hyg. Law § 81.01 (McKinney 2025) https://plus.lexis.com/document?pdmfid=1530671&pddocfullpath=%2Fshared%2Fdocument%2Fstatuteslegislation%2Furn%3AcontentItem%3A5CT3-17S1-6RDJ-854N-00000- 00&pdcontentcomponentid=9101&ecomp=6xgg&earg=pdsf&prid=3bf431c2-d912-4e1c-be32- 393c8db56912&crid=03905dc7-e718-4d3b-a376-4023790f9e71&pdsdr=true#/be078c83-f600-442a-8602- 23e9b4aa8a47
[7] N.Y. Unified Ct. Sys., How to Start a Guardianship Case for an Intellectually or Developmentally Disabled Person (Article 17-A Guardianship Case) (Mar. 8, 2022), https://www.nycourts.gov/courthelp/guardianship/starting17A.shtml Accessed 10-28-2025
[8] Matter of Michelle M., 2016 N.Y. Misc. LEXIS 2719 (Sur. Ct. Kings Cnty. July 29, 2016). https://plus.lexis.com/document?pdmfid=1530671&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3A contentItem%3A5K9W-YRS1-F04J-81FP-00000- 00&pdcontentcomponentid=9095&pdislparesultsdocument=false&prid=ac15234c-195e-4505-bca9- 10cc00d17e75&crid=ce8e92b7-7df6-4fa0-8edcc2978b90afc3&pdisdocsliderrequired=true&pdpeersearchid=c9829173-5105-4350-ad4f-7867976e526f1&ecomp=pygg&earg=sr0#/d55c4472-3a7e-4517-a36e-18b6f4caf802
[9] Matter of Michelle M., 2016 N.Y. Misc. LEXIS 2719 (Sur. Ct. Kings Cnty. July 29, 2016).
[10] U.S. Department of Justice, Bureau of Just. Stat., Crime Against Persons with Disabilities, 2009–2019: Statistical Tables (2021), https://bjs.ojp.gov/content/pub/pdf/capd0919st.pdf Accessed 11-02-2025
[11] Leigh Ann Davis, People with Intellectual Disabilities and Sexual Violence, The Arc (2017), https://www.thearc.org/wp-content/uploads/forchapters/Sexual%20Violence.pdf Accessed 11-02-2025
[12] U.S. Department of Justice., Bureau of Just. Stat., Crime Against Persons with Disabilities, 2009–2019: Statistical Tables (2021), https://bjs.ojp.gov/content/pub/pdf/capd0919st.pdf Accessed 11-02-2025
[13] N.Y. Penal Law § 260.34 (McKinney 2025), https://ypdcrime.com/penal.law/article260.php#p260.34 Accessed 11-02-2025
[14] U.S. Department of Justice, Bureau of Just. Stat., Crime Against Persons with Disabilities, 2009–2019: Statistical Tables (2021), https://bjs.ojp.gov/content/pub/pdf/capd0919st.pdf Accessed 11-02-2025
[15] National Institute of Justice, The Many Challenges Facing Sexual Assault Survivors with Disabilities (July 17, 2017), https://nij.ojp.gov/topics/articles/many-challenges-facing-sexual-assault-survivors-disabilities Accessed 11- 03-2025
[16] National Institute of Justice, The Many Challenges Facing Sexual Assault Survivors with Disabilities (July 17, 2017), https://nij.ojp.gov/topics/articles/many-challenges-facing-sexual-assault-survivors-disabilities Accessed 11- 03-2025
[17] S. 6901-A, 2025–2026 Leg., Reg. Sess. (N.Y. 2025), https://legislation.nysenate.gov/pdf/bills/2025/S6901A Accessed 11-03-2025
[18] Elevatus Training, Developmental Disabilities and Sexuality 101, Elevatus Training, https://www.elevatustraining.com/workshops-and-products/developmental-disabilities-and-sexuality-101/
[19] Elevatus Training, Developmental Disabilities and Sexuality 101, Elevatus Training, https://www.elevatustraining.com/workshops-and-products/developmental-disabilities-and-sexuality-101/
[20] Supported Decision-Making N.Y., The 3-Phase Facilitation Model, https://sdmny.org/the-sdmny-project/how-wedo-it/the-3-phase-facilitation-model/ 11-04-2025
[21] YAI: Seeing beyond disability, Sexuality and I/DD https://www.yai.org/knowledge/sexuality-rights-expressionand-advocacy-people-idd, accessed 11-13-2025