In re the Estate of Resnick , 76 Misc. 2d 541 ( 1973 )

Nathan R. Sobel, S.

Mrs. Resnick died on October 22, 1972 leaving a small' estate (approx. $5,000). Her sole distributee is a daughter Lillian. On September 25, 1973 on petition under article 17-A of the SOPA, this court, after a hearing, adjudicated Lillian a mentally retarded person (SOPA 1750) and appointed as guardian of her person the New York State Association for Retarded Children (SOPA 1754) and as guardian of her property (at Lillian’s own request as well as upon inquiry by the court) Sidney Levitón.

Article 17-A has many beneficent purposes (Hodgson Guardian of the Retarded, 37 Albany L. Rev. 407 [1973]). One was to overcome the reluctance of most parents (or concerned other relatives) to apply for the appointment of a committee upon a judicial finding of incompetence. Most retarded persons as is Lillian are quite competent to manage their everyday affairs, obtain employment and handle routine finances. Guardianship of mentally retarded persons carries with it no stigma. In most cases it is designed to establish a fiduciary to care for the retard-ate after the parents (or concerned relatives) are gone.

Another purpose was to permit a guardian to be appointed for a retardate of any age and to permit the guardianship of minors to continue after adulthood.

Mr. Levitón, the guardian of the property of his ward, has applied for letters of administration of the estate of Mrs. Res-nick, his ward’s mother.

SOPA 1001 (subd. 2) makes eligible to receive letters of administration, if the sole distributee is “an infant or incompetent ’ ’, his fiduciary or committee. It makes no specific provision for the appointment as administrator the guardian of the retardate ward who is an infant or adult. However SOPA 1755 clearly expresses the legislative purpose that a “mentally retarded person ” ¡as defined in article 17-A shall be deemed “ an infant ’ ’ under article 17; that a ‘ ‘ guardian of a mentally retarded person ” shall be deemed a “ guardian ” under article 17. Applying these definitions to ¡SOPA 1001 (subd. 2) that provision may be read to provide: “ If the sole distributee * * * is an infant, ‘ mentally retarded person ’ or incompetent his fiduciary, ‘ guardian ’ or committee, if he is eligible and qualifies, shall be granted letters of administration.”

Letters shall issue to the petitioner upon qualifying according to law.