(The pdf for the issue in which this article appears is available for download: Vol. 37, Issue 5.)
A new resource guide aims to help lawyers identify and implement decision-making options for persons with disabilities that are less restrictive than guardianship.
The PRACTICAL Tool is a joint product of four American Bar Association entities—the Commission on Law and Aging, Commission on Disability Rights, Section on Civil Rights and Social Justice and Section on Real Property, Trust and Estate Law, with assistance from the National Resource Center for Supported Decision-Making. The project was made possible by the ABA Enterprise Fund, which provides internal grants of seed money to fund innovative, collaborative efforts between ABA entities.
“PRACTICAL” is an acronym for nine steps lawyers can use in case analysis to identify legal and practical approaches to heighten self-determination before moving ahead with guardianship: Presume guardianship is not needed; clearly identify the Reasons for concern; Ask if a triggering concern may be temporary; determine if concerns can be addressed by Community resources; ask if the person already has a Team to help make decisions; Identify the person’s abilities; screen for potential Challenges; Appoint a legal supporter consistent with the person’s values; and Limit any necessary guardianship petition.
Guardianship is one of society’s most drastic interventions, removing fundamental human rights and reducing self-determination. Guardianship is viewed as a last resort, and laws and standards require that less restrictive decision-making options be considered first. These options address both financial and health care/personal decisions, and include the emergent concept of “supported decision-making”—in which a person uses support from trusted others to help understand choices and make needed decisions on his or her own, rather than relying on a guardian or other surrogate.
“With the aging of the population and increase in the number of individuals with disabilities, lawyers who practice in many areas of the law will encounter the need for decision making by and on behalf of these adults,” said ABA President Paulette Brown. “This new ABA checklist tool offers a working framework to think through these challenging issues.”
PDF and Word versions of The PRACTICAL Tool are available for no-cost download at http://www.ambar.org/practicaltool, where information on a free June 28 webinar based on the Tool can also be found.