Often, attorneys are faced with clients who, due to age or disability, have decision-making challenges. Historically, this frequently has resulted in attorneys recommending guardianship. But an alternative to guardianship is supported decision-making, which can protect individual rights, increase self-determination and improve life outcomes.
The session “Supported Decision-Making: A PRACTICAL Approach to Representation,” was presented Oct. 30 at the National Aging and Law Conference in Arlington, Va., an event sponsored in part by the ABA Commission on Law and Aging. A plenary session was intended to help the 160 participants from 35 states (mostly lawyers) determine if supported decision-making is appropriate for some of their clients, and how to implement it in their practices.
Although research has found that guardianship can have a significant long-term negative impact on those under it, the number of adults under guardianship has grown to an estimated 1.5 million. Recently, there has been a greater focus placed on less-restrictive alternatives to guardianship, with the goal of people retaining their rights and self-determination, which research has correlated with improved life outcomes.
For years, elder law practitioners have talked about the importance of identifying less restrictive options than guardianship — options such as advance directives, financial powers of attorney and representative payees. With supported decision-making, practitioners in elder and disability law are not only reinforcing those concepts but going beyond them to help people make their own choices with the legal and practical support they need, moving from surrogate decisions toward supported decisions.
Supported decision-making is becoming a nationally and internationally recognized alternative to guardianship. It involves trusted friends, family members and professionals assisting persons with disabilities in making their own decisions and communicating those decisions to others. It is now so much a part of the landscape that the federal government has funded the National Resource Center on Supported Decision-Making.
“This is a paradigm shift that will have ripple effects throughout elder and disability Law,” said panel moderator Erica F. Wood, assistant director of the ABA Commission on Law and Aging.
In 2013, Jenny Hatch, then 29 and diagnosed with Down syndrome, won a landmark legal battle in Newport News, Va., protecting her right to make her own life decisions using supported decision-making instead of being subjected to guardianship. Her lawyer was Jonathan Martinis of the Quality Trust for Individuals with Disabilities, who has more than 20 years’ experience representing clients under various civil rights laws, and directs the National Resource Center.
"Imagine being told you can't go home, or work, or see your friends — because you have no legal right to do so. For over 2,000 years, that's what we've told the millions of people subjected to overbroad and undue guardianships, making them ‘unpersons’ in the eyes of the law,” panelist Martinis said. “Supported decision-making can change all that, giving people the support they need and want to make their own decisions and direct their own lives, which decades of studies have shown is associated with improved life outcomes.”
Martinis added that the majority of guardianships are plenary, and quoted the late Congressman Claude Pepper, D-Fla.: “The typical ward has fewer rights than the typical felon.”
Nina A. Kohn, law professor and associate dean for research at the Syracuse University College of Law, led listeners through a beta phase, nine-step (with checklists) ABA practice tool for lawyers to operationalize the concept of the least restrictive alternative and support the decision-making of individuals. The first step is the presumption that guardianship is not needed. The tool encourages lawyers to ask what practical steps might allow the person to make their own decisions with needed supports and services — to ask “What would it take?” for this person to make the decision at hand.
Rebekah Diller, law professor and co-director of the civil litigation clinic at the Cardozo School of Law at Yeshiva University, engaged the participants in applying the principles of supported decision-making to two guardianship cases from her clinic.