National Council on Disability Calls for Nationwide Reforms for Guardianships
On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations, calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships.
As set forth in the press release, NCD’s findings include:
- Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
- Capacity determinations often lack sufficient scientific or evidentiary basis.
- Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
- People with disabilities are often denied due process rights in guardianship proceedings.
- Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
- Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
- There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.
NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.
Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.
My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.