August 01, 2016 Feature

Guardianships, Civil Liberties, and the Role of Lawyers

Phoebe Ball

Guardianship has been around for a very long time, with scholars tracing the origins of this legal arrangement to Greek and Roman times. Under the doctrine of parens patriae, states have the authority to impose a guardian on a person deemed incapacitated and unable to make decisions, care for him- or herself, or manage his or her property. Although the desire to protect our most vulnerable citizens is laudable, and parens patriae may make one think of a kindly father figure, there is a long history of this doctrine being used to control and segregate people with disabilities in very harmful ways. For example, the doctrine of parens patriae was invoked to justify the enforcement of eugenics policies that deprived people with disabilities (or perceived disabilities rooted in racial and gender bias) of their fundamental right to choose whether or not to become parents and to lock them in institutions that notoriously became the overcrowded “snake pits” condemned by Robert Kennedy in 1965 (ncd.gov/newsroom/05042015). In the past few decades, the deinstitutionalization movement has enjoyed some success in closing many of the large, state-run institutions and ensuring that individuals faced with involuntary commitment to a facility receive due process. However, many still face guardianship proceedings without a legal advocate willing to argue against the use of guardianship for a client with disabilities. Not only does this lead to the imposition or maintenance of unjust and unnecessary guardianships that limit individuals’ civil liberties, it subverts the cause of justice.

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