By , Ella Schaltenbrand, Elder & Disability Law Clinic Student, Fall 2020
What is Guardianship and Conservatorship?
One of the more common issues that the Elder & Disability Law Clinic assists clients with are petitions for guardianship. When a court determines that an adult is incapable of making responsible decisions (i.e. incapacitated), it will appoint a “guardian” and/or “conservator” to make decisions on the person’s behalf, creating a relationship of “guardian” and “ward.”
Typically a “guardian” refers to a person appointed to make personal decisions for the person, like where the person will live and what medical treatment they will receive. A “conservator” refers to a person appointed to make financial decisions for the person. Sometimes the guardian or conservator will be a close friend or family member, but a court can also name a non-profit agency or corporation to serve as a guardian or conservator.
In the United States it is estimated that 1.3 million adults (the majority of which are over 65) are currently under guardianship.[1] Guardianship is usually seen as a last resort because it strips the incapacitated person of many civil rights, including the right to make medical decisions, vote, marry or divorce, drive a car, and to decide where to live. The power dynamic of a guardianship can also lead to neglect, exploitation, and abuse. While guardianship may be the most appropriate option for some, many individuals who are under guardianship retain the ability to make responsible decisions in some realms of their lives, or could do so with some assistance.
Supported Decision-Making as an Alternative
In recent years, supported decision-making (SDM) has emerged as a potential alternative to guardianship. SDM is essentially what it sounds like; it allows an individual to retain the ability to make their own decisions and ensures that they will be supported by others in doing so. The individual chooses “supporters” who will help her through the decision-making process, which could look like:
- taking extra time to discuss potential choices and the pros and cons of a particular decision with the supporter;
- bringing the supporter along to appointments to take notes and help the individual remember his or her options;
- role-playing activities or using alternative modes of communication to help the individual better understand their options; or
- opening a joint bank account to make financial decisions together.[2]
Sometimes capacity does not have a clear yes or no answer, and in such cases SDM can be beneficial because it allows the individual to retain autonomy over their lives, while also providing them with a support net.
Many individuals with mental health, intellectual, and developmental disabilities already utilize an informal version of SDM. In the past several years, however, many states have passed laws that recognize supported decision-making agreements as legally enforceable, including Indiana, North Dakota, Nevada, Rhode Island, Texas, Delaware, Washington DC, Alaska, and Wisconsin.[3] In states where SDM is recognized, an individual can sign a formal document with her supporters where they agree to engage in SDM. The document can indemnify third parties against liability, which may make those parties more willing to accept the individual’s decision without fearing liability.[4]
SDM agreements are more flexible than a guardianship and can outline different roles that certain supporters are to have. For example, a SDM agreement can name one person as a supporter for financial decisions, another supporter for health decisions, and another for legal decisions. The agreement can also include whether a supporter can access confidential information about the individual.[5] SDM is not a form of substitute decision-making like a guardianship, conservatorship, or power of attorney, so the individual does not lose any rights by virtue of entering into a SDM agreement.
While SDM has many benefits and is much less restrictive on the individual’s rights and autonomy, it can create some the same concerns that guardianship does. Supporters, like guardians, may abuse the power their role gives them to exploit the individual. Another potential downside to SDM is that at this point it appears to be an option only for those who already have a robust support system of family and friends. So, SDM may not be a viable option for many individuals who lack that support system. As SDM becomes a more popular option across the U.S., perhaps we will see non-profit organizations begin to offer SDM services like they offer guardianship services.
[1] https://www.aarp.org/caregiving/financial-legal/info-2018/court-ordered-guardianship-separates-family.html
[2] https://www.aclu.org/other/faqs-about-supported-decision-making
[3] https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-41/volume-41-issue-1/where-states-stand-on-supported-decision-making/
[4] https://www.aclu.org/other/faqs-about-supported-decision-making
[5] https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-41/volume-41-issue-1/where-states-stand-on-supported-decision-making/