When children turn 18, the law presumes they have the capacity to make important choices in life, including those pertaining to sex, marriage, education, finances, and medical procedures.
Most parents readily accept the transition of their child from being a minor to an adult. But for some parents, the idea of their son or daughter making independent and legally binding decisions on his or her own creates a great deal of anxiety. This is especially so when their son or daughter has an intellectual or developmental disability.
Help them understand
Some people with developmental disabilities are quite capable of making important decisions on their own. Others can do so if they are given sufficient support to help them understand.
However, some adults have such significant cognitive or emotional disabilities that they truly lack the capacity to give legal consent to sex or marriage, or to give informed consent for a medical service, or to enter into a contract. Yet decisions on such issues often need to be made.
Adult guardianship proceedings may be initiated to fill this decisional void. A guardian may be appointed to make some or all decisions on behalf of the person who lacks the capacity to do so.
For situations involving people with an intellectual or developmental disability, it is often a parent or relative who files a petition for an adult guardianship. Every state has a guardianship system for adults who lack capacity in one or more important areas of decision making.
Most states call the status a “guardianship,” while others, such as California, call it a “conservatorship.”
For adults with a developmental disability, California calls it a “limited conservatorship.”
Adult guardianships, or limited conservatorships, are supposed to be a last alternative, not a first choice. Lesser restrictive options should be considered and only when they won’t work are guardianships to be used. People should not be placed under guardianship unless there is clear and convincing evidence, shown in court, that they cannot make decisions for themselves.
There should be an independent investigation by a court investigator. An attorney should be appointed to represent the adult in question. And even when a guardianship petition is granted,the guardian is supposed to respect the civil and constitutional rights of the protected adult.
Evidence is mounting that adult guardianship systems throughout the country are not functioning as they were originally intended to operate. People are being improperly placed into guardianships. Investigations are not happening. Lawyers appointed to represent people with developmental disabilities are not properly trained and are not advocating for the rights of their clients. Judges are routinely granting petitions without due deliberation.
After receiving complaints in several cases in California, the Disability and Abuse Project launched an investigation into that state’s Limited Conservatorship System.
What we found was shocking. All aspects of the system are dysfunctional. This includes judges, court investigators, court-appointed attorneys, and those who are charged with the responsibility to evaluate the capacity of the adults in question.
As a result, we have initiated a Conservatorship Reform Project, with our primary focus on California. However, after hearing about similar problems in other states, our project is beginning to examine the adult guardianship systems in other jurisdictions. The constitutional rights of people with developmental disabilities – freedom of speech and association, privacy, equal protection, and due process – are falling victim to paternalistic guardianship systems that value efficiency more than justice.
Knowledge is power. So is collective action. We encourage self-advocates, parents, and others who support disability rights to read more about these problems and to learn about some of the solutions we are suggesting.