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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102506
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am "the Sole Guardian of the Person and Property of" my now

Customer Question

I am "the Sole Guardian of the Person and Property of" my now 40 year old son, by New York State Surrogate's Court Order, since 1998. My son has severe TBI, is non-verbal and cannot communicate because of his disability. The staff at the State run facility in which he resides broke his arm on 12/9/14 while doing ADLs -- a twisting break. Recently I wanted to observe their provision of ADLs to my son but they said no, my son has "privacy" and "legal" (OPWDD Counsel's Office) told them that I could not observe unless my son, himself stated he would allow it; furthermore, if I refused to allow them to take my son and do their services to him then I would be guilty of causing neglect by denying my son his needed services. My son has pressure sores on his feet, which I did observe, and they claim he has no presure sores at all, but I have documented that they lie and I am not allowed, by "legal" to personally check for his skin integrity.
Since Steven is not verbal, and I am his Court Appointed Guardian "of the Person and Property", is this not a violation of ADA -- denial of my ability to verify his physical state -- because of his disability? They require a disabled person to do something he is incapable of doing by his disability in order that the disabled person be protected from physical harm.
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms. I am very sorry to hear about this situation. If you are your son's guardian, then technically he is considered almost as a "minor" when it comes to such things. He cannot ask for privacy any more than a four year old can. So unless your presence would somehow disrupt the process, it would be wrongful for them to deny you access. If they do, then this is not a violation of ADA, however. That is a stretch. Nothing in the ADA discusses the ability of a guardian to confirm the state of a ward. While I can see your logic in applying the statutory law that way, it is simply not how it is meant to be applied. If the staff is not working with you, someone in your situation can: -simply MOVE him to another location, and/or-possibly SUE the company behind the care home on his behalf for negligence, malpractice, and whatever other causes of actions may occur. I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.
Expert:  Ely replied 1 year ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!