Washington Lawyer - November/December 2021 - 11

FEATURE
decision-making as " the process by which most individuals make decisions
- by consulting with friends, family, social services, community
organizations, and/or other sources of support to weigh the pros and
cons of a decision, review potential outcomes, and finally make a choice. "
Supported decision-making " takes many forms - from recognition of
organic decision-making networks to formal, written supported decision-making
agreements, " the commission says.
A BROKEN SYSTEM
Efforts are underway to establish national standards that can better safeguard
the rights of those placed under conservatorships and guardianships.
At the Fourth National Guardianship Summit held this past May,
delegates of the National Guardianship Network set out 22 final recommendations
to improve and reform adult guardianship in the United
States. Among them is the call for states to adopt the Uniform Law
Commission's 2017 Uniform Guardianship, Conservatorship, and Other
Protective Arrangements Act, which recommends that less restrictive
alternatives such as supported decision-making be considered as an
option prior to imposing a guardianship. Another recommendation is for
states and courts to ensure full access to a restoration of rights, clearly
defining the timeline and burden of proof.
Jurisdictional differences somewhat account for the varying degrees of
agency experienced by those in guardianships. Richard D. Caldwell, who
operates a boutique law firm focusing on probate litigation and fiduciary
services in the District of Columbia and Maryland, points out an important
distinction between the two jurisdictions.
" In D.C. it's written into the statute that you have to take the person's
expressed interest into account when you are making decisions, "
Caldwell says. " That's not the case in Maryland, where you can go ahead
and make a decision based on their best interest first. "
Lack of information has also made it difficult to understand the use of
conservatorship and guardianship, and it is unclear how many individuals
are currently subject to them. The state-by-state differences in nomenclature
and process, along with the lack of a nationwide regulatory structure,
leave advocates without precise data, but a 2017 U.S. Department of
Justice report estimated a total of 1.3 million active conservatorship or
guardianship cases.
Shira Wakschlag, senior director of legal advocacy and general counsel
for The Arc, a national community-based organization advocating for
and with people with intellectual and developmental disabilities, says a
monitoring system to capture missing data could help address guardianship
issues.
" There is no question that the system is broken and people's rights
are being violated routinely. Having more data does not solve these
problems, but it's one small piece of identifying the issues more concretely
for those who may be less familiar with the system and the rights
violations, " Wakschlag says. " Who's under guardianship? How are they
able to exercise their rights? How many people are trying to file rights
restoration petitions, and are they being denied or granted? And how
many people are trying to terminate or select their own counsel? "
Other questions from Wakschlag: What happens when those petitions
are filed, or when people attempt to exercise certain rights? What sort
of information do people receive about their rights when they are put
under guardianship? " There's a lot of data that's really necessary to even
define the problem. There's no question that it's a big, systemic issue,
but really wrapping your mind around numbers and certain specifics
within the system is a really important piece to figuring out solutions, "
Wakschlag says.
REFORMS IN THE DISTRICT
Washington, D.C., has served as an interesting case study because
petitions for guardianship are all handled by the Superior Court using
a computerized system, allowing for better and more accurate tracking
of data. In 2018 the District passed the Disability Services Reform
Amendment Act, becoming the fourth jurisdiction in the country to
formally recognize less restrictive alternatives to conservatorships and
guardianships, creating a supported decision-making process for people
with disabilities.
A 2019 report by the National Council on Disability examining the
District's approach to guardianship cited the city's recent " promising
legislative and policy reform, designed both to bolster due process
rights for people facing or in guardianship and to promote alternatives
to guardianship for adults with disabilities in special education and
beyond. "
" This presented an opportunity to find out whether these reforms have
yet resulted in meaningful outcomes for residents with ID/DD [intellectual
disability or developmental disability] in the nation's capital, and, if
so, whether DC's local approach can inform federal-level policy recommendations
and serve as a model to other states, " the report says.
The report traces the rapid advance of supported decision-making from
2015 to 2017, and how over the same period there was a decline in the
number of new guardianship petitions for people with intellectual or
developmental disabilities.
Jessica Bronson, a legal hotline attorney for AARP's Legal Counsel for the
Elderly, calls the District a leader in supported decision-making. In 2018,
while working for Quality Trust, Bronson represented " Dolores, " a woman
in her 80s who was the first senior citizen in the District to have her
guardianship terminated in favor of supported decision-making. The
case made national news.
Bronson says awareness of supported
decision-making is growing, but there
is still significant room for progress.
" There's certainly always more
educating that can be done.
That's one of the reasons that
we do trainings for community
members and for professionals, "
she says. There's still a knowledge
gap between guardianship
and supported decisionmaking,
" but I think it's closing. "
The National Council on
Disability report shows that
the percentage of guardianship
petitions for people with
intellectual or developmental
disability decreased in 2015 and
2016, but when the petitions were
NOVEMBER/DECEMBER 2021
* WASHINGTON LAWYER 11
Washington Lawyer - November/December 2021

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