Guardianship not always the best option

By Tom Dooling

Winter 2009

The concept of guardianship is very old. It dates from times when parents often did not live long enough to see their children reach adulthood, so it was necessary to appoint a trustworthy person to look after the orphaned children and their inheritance from their parents. Orphans without inheritances didn’t often get such careful treatment, and basically had a choice of orphans home or becoming wards of guardians who turned them into virtual slaves to work on their farms, in their homes or factories.

Poor orphans, like Little Orphan Annie, didn’t often get saved by wealthy benefactors like Daddy Warbucks but wound up child laborers and second-class citizens like Cinderella or Oliver Twist. The concept of appointing guardians for adults is of much more recent vintage. Up until the 1930s, incompetent adults and often children who had living parents who could not care for or control them became wards of the state: that is to say that the state became their guardian.

Superintendents had absolute power

During the time of maximum institutionalization of individuals with mental illness and developmental disabilities, when folks were institutionalized for life from early childhood on, their legal guardian was frequently the superintendent of the hospital school to which they were confined. These superintendents had complete power over their wards to determine medication, treatment, if any, work assignments, institutional placement and virtually every other detail of life.

In recent decades, we have moved away from this Victorian-era model of dehumanizing people with disabilities by making them virtual prisoners of state-appointed bureaucrats, although vestiges of the policies remain: superintendents of state-run institutions often are empowered to consent to treatment and especially to involuntary medication, on behalf of residents who have no guardians and are deemed incompetent to give informed consent on their own. Not surprisingly, refusal to consent to medication or treatment is frequently considered proof of such incompetence.

However, there still remains a need for compassionate individuals to take responsibility for the life decisions of people with disabilities who are genuinely incapacitated and unable to make decisions for themselves. Such incapacity can happen to anyone: an educated white collar professional in a coma from a brain injury or a stroke is as surely incapacitated as an individual with severely impaired cognitive functioning who is deaf and unable to speak.

Governed by probate code

In Montana, the appointment of guardians is governed by the Montana Uniform Probate Code, which also covers how wills are administered and how trusts can be established to provide for family members unable to support themselves. Guardians, wherever possible, are family members or trusted friends of the protected person. Parents, siblings and frequently children are presumed to care for and have the person’s best interests, welfare and happiness in mind.

Unfortunately, and all too often, people with disabilities have no significant family ties due to Unfortunately, and all too often, people with disabilities have no significant family ties due to abandonment or death, and it is, sadly, sometimes very difficult to find big-hearted people willing to take on responsibility for decision making for an incapacitated person, often without recompense even for out-of-pocket expenses to visit the ward or pay for telephone calls and trips to court.

Since it is a conflict of interest for an employee of an agency providing services to a person with an intellectual disability to also serve as that person’s guardian, many service providers, both public and private, have made a variety of arrangements for guardianships for residents or clients deemed incapacitated for the purposes of making certain decisions.

Many of these guardians are former agency employees, and many of the them serve as guardians for more than one person, and in some cases for dozens of separate individuals in institutions. By law, guardianships are limited by the language of the Letters of Guardianship issued by the Court. Some guardianships are limited to only medical decisions: in any event, even a guardianship does not give the guardian power to restrict individual rights.

Thus, Disability Rights Montana has heard of guardians directing that their wards not be allowed to smoke, to have driver’s licenses or hunting licenses or to possess a firearm. We have seen circumstances where guardians have been asked to and have signed medical orders directing that their wards not be resuscitated in the event they have heart attacks, or to consent to the withdrawal of life support for gravely ill wards. Generally, these are not within the powers of a guardian.

In the final analysis, it is a guardian’s function to work for a ward’s maximum freedom and ability to live his or her life as independently as possible. If a question as to the extent of a guardian’s power arises, or if a ward feels his or her guardian is being overly restrictive, it is always advisable to seek legal advice.

A ward who is unhappy with his or her guardian has the right to petition the court for the guardian’s replacement by someone the ward would prefer.

Tom Dooling is a former staff attorney for Disability Rights Montana.

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