Providing an alternative to guardianship
In everyday life, the concept of Supported Decision-Making (SDM) could describe the process by which the majority of people make decisions — by consulting with friends, family, social networks, and community supports to weigh the pros and cons of a decision, to review potential outcomes, and, in the end, to finally make a choice. That is, we all use supports of some kind in our decision-making.
The formal practice of Supported Decision-Making has increasingly emerged as an alternative option to guardianship, placing a person with an intellectual or developmental disability at the center of the decision-making process, and providing them with the type of support they need in order to make and implement their decisions and weigh all the alternatives and consequences that may flow from a decision or even a lack of a decision.
SDM may take many forms — and an individual will need to choose a trusted person or network to support them in whatever way(s) they need – which can be an informal decision-making network of support to a formal contract or agreement with their supporter (called a Supported Decision-Making Agreement or SDMA). Whatever the format, SDM practice should strive to provide a structure that will ensure that a person has full support and protections for their needs, along with the ability to make the decisions that affect their life – to provide them with maximal autonomy in the least restrictive way suitable to their needs.
American Bar Association (ABA) PRACTICAL Tool
The American Bar Association (ABA) advocates for less restrictive alternatives to guardianship, and the ABA’s Commission on Law and Aging has created a PRACTICAL Tool as a guide for lawyers to identify and implement decision-making options (Supported Decision Making or SDM) for persons with disabilities that are less restrictive than guardianship.
The PRACTICAL Tool presumes that less restrictive options such as the use of health care proxy, a power of attorney, an advance directive, or a trust may be utilized instead of guardianship, and that any areas of specific concern(s) for a person be identified and then determined if they can be met.
A matter of concern is typically related to issues like money management, health care, independent community living, personal safety (avoiding danger and abuse), maintaining good relationships, and the ability to understand important legal documents such as a lease or employment contract.
The tool will also consider if a concern can be addressed (or perhaps has already been partially addressed) by family or by connecting to a community resource network.
If a legal agent or surrogate is appointed (for example, under a health care proxy, a POA or trust, it should be in accordance with the person’s preferences.
Project Guardianship Advocacy
There is a great need for a better and more equitable guardianship system in New York State and across the country. Nonetheless, guardianship is an intervention that protects individuals in need of protection, but also infringes upon their individual rights and self-determination.
Therefore, less restrictive options such as creation of a healthcare proxy and practices such as Supported Decision-Making tools and protocols, for persons with an intellectual or developmental disability, should always be considered first as an alternative to a more restrictive options such as guardianship for an individual’s care planning.
The utilization of these tools and instruments should be supported in populations and communities that in the past have been underserved and without access to these alternatives, including low-income communities and communities of color.
We therefore advocate for the appointment of a guardian as a last resort, and that the guardianship order be limited to only those areas in which the individual needs decision-making assistance and care oversight.