Washington Lawyer - November/December 2021 - 12

FEATURE
granted by the court, " most of the individuals with ID/DD were
placed under permanent general guardianship, the most restrictive
form. "
" This data raises questions about whether courts are using guardianship
as the last resort and whether they are consistently appointing the type
of guardianship that is least restrictive in duration and scope to meet the
person's needs, " the report states. " It may also indicate persistence in
stereotypes about people with ID/DD and their ability to be independent
with supports, which could lead courts to weigh heavily toward full
guardianship instead of alternatives. " The report points out that the percentage
of guardianship cases involving individuals 22 years old and
younger rose during that same period.
services they need as they near adulthood. " It's often that someone
needs an easy answer. They just need someone to sign and don't
understand that there are other options, " Bernstein says.
Bernstein's organization provides outreach and resources to educate
people about less restrictive options, urging parents to create support
systems that restrict their child's rights as little as possible. " You don't
have to go full speed in taking away decision-making. There are ways
to provide support that are much less intrusive, " she says.
A FLEXIBLE MODEL
The elderly face different challenges, but education and outreach remain
critical. Established in 1975, the Legal Counsel for the Elderly's Office of
the D.C. Long-Term Care Ombudsman provides independent advocacy
for those residing in nursing homes, assisted living facilities, and other
senior care communities.
Efforts are underway
to establish national
standards that can better
safeguard the rights of
those placed under
conservatorships
and guardianships.
Long-Term Care Ombudsman staff attorney Mary Ann Parker says that
although there are circumstances where a bad actor is actively stealing
from or harming a ward, the issue she more frequently encounters is a
lack of awareness. " There's a common problem of just not listening to or
abiding by the wishes of the ward. There can also be improvement in
efforts to seek least restrictive options or [to consider] the termination of
unnecessary guardianships, " she says. The elderly, particularly those suffering
from dementia, are often assumed to be incapable of making
decisions, but Parker and her colleagues say that this sweeping assumption
is both incorrect and potentially harmful.
In her role as a Homebound Elderly Project attorney at the Legal Counsel
for the Elderly, Catherine Yourougou often participates in the crafting of
more tailored legal supports for her clients who may be experiencing
declining capacity. After a series of discussions, she uses an array of tools
to create flexible systems that include supported decision-making,
springing or immediate power of attorney documents, and limited
guardianships to provide individuals with the assistance they need while
preserving control over aspects of their lives that are important to them.
These systems, beyond preserving one's agency, often have other
advantages, Yourougou says.
" Making a power of attorney can be a lot simpler for everybody, " she
adds. " It's a lot easier to change, and to make a power of attorney you
don't have to run to the court. Guardianship means that the court is
going to be involved in a lot of things. "
The report also indicates a lack of awareness among parents, schools,
and medical professionals who interact with children with disabilities.
Each child in the public school system who receives special education
must have an individualized education plan (IEP) signed by the parents.
When the child turns 18, however, the parents no longer have legal
authority to make education decisions for their child, which can result in
school officials urging parents to establish a guardianship to resolve the
issue. Parents face similar pressures when it comes to medical care for
their child.
Sandy Bernstein, legal director at University Legal Services, which
operates Disability Rights DC, says that many guardianships are imposed
as parents attempt to ensure their children retain the support and
12 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2021
Even in the most sweeping guardianships, there is room for supported
decision-making, according to The Arc's Wakschlag. Guardians should
actively involve their wards whenever possible and employ the model of
supported decision-making to make critical decisions, she says. " Even if
someone is under a more restrictive arrangement like guardianship or
conservatorship, there are still rights within that system, and you can
use the least restrictive alternative. Supported decision-making can be
employed around, for example, selecting counsel, which is a big decision
that should be done by the individual with the assistance they may
need, " Wakschlag says.
Bronson echoes this sentiment. " Beyond the legal forms, supported
decision-making is simply the concept that everyone should be
supported to make decisions themselves, to the best of their ability. That's
something that can be used across all the legal tools, " Bronson says.
Washington Lawyer - November/December 2021

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