Introduction

Webcast archive: Guardianship

Today, we look at the problems of guardianship, the difficulty of removing a guardian, and some alternatives.

Webcast archive: Guardianship

In this episode of Euthanasia & Disability, Amy Hasbrouck, Christian Debray, and Taylor Hyatt discuss:

  • The many problems of guardianship

Please note that this text is only a script and that our webcast contains additional commentary.

THE MANY PROBLEMS OF GUARDIANSHIP

  • Today, we’re talking about guardianship. This is a legal process where decision-making power is transferred from a person who is declared unable to manage their money or take care of themselves, to another person who makes decisions on their behalf.
  • Each province has different laws (using different terms) governing when, how, why, and for how long someone can make decisions on behalf of another.  There are many variables to be considered in looking at decision-making options:
    • Is the need permanent or temporary?
    • Do the decisions relate to the person’s living situation and health care, or to their finances and property?
    • Is the person completely incapacitated (unconscious) or can they participate in the decision-making process?
    • Does the guardianship cover all decisions (plenary), or just some (partial)?
    • Is the assignment of decision-making planned or sudden?
    • Is the change voluntary or contested?
    • Is the decision-maker a family member or friend, or is it a professional?
    • Is the decision-maker a volunteer or appointed by a court?
    • How often will the need for guardianship be reviewed?
  • In general, planning ahead assures the maximum amount of control.  The person chooses someone who can be trusted to help them make decisions and act on their behalf.  A power of attorney can take care of financial matters, while a health care proxy will make health care decisions, with as much input from the person as possible.
  • A guardianship differs from a power of attorney and health care proxy in that it is usually imposed upon a person by a court.  A partial guardianship will preserve some decisions for the person, while other areas are controlled by the guardian.
  • Under the plenary form, guardians have a great deal of power, and can even dictate where the person lives, works and socializes.  If guardianship is to be imposed, a “supported decision-making” agreement gives the person the greatest possible control.
  • Typically, guardians are appointed by courts when someone has been declared incompetent (or incapable) due to a condition that affects their ability to understand their situation, and the consequences of the decisions they make.
  • Guardianship began as a way to protect people from making poor choices and from being exploited by others.  To determine if a person had capacity, courts looked for evidence that the person was neglecting themselves or putting themselves in danger.
  • More recently, the Convention on the Rights of Persons with Disabilities has moved away from the protection model of guardianship toward an autonomy-based vision of “supported decision making.”  In that sense, “capacity” is not focused on a person’s abilities, but “is a social and legal status accorded independent of a person’s particular capabilities.”  The decision-making process is a collaboration between the person and one or more trusted others who provide information and help weigh the options.
  • Under Article 12 of the United Nations CRPD, states “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life,” and “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”
  • Article 12 also requires states parties to “ensure that measures relating to the exercise of legal capacity:
    • respect the rights, will and preferences of the person,
    • are free of conflict of interest and undue influence,
    • are proportional and tailored to the person’s circumstances,
    • apply for the shortest time possible, and
    • are subject to regular review by a competent, independent and impartial authority or judicial body.”
  • Guardians should know the people whom they represent well, in order to make decisions that are in line with what the person would choose themselves. Yet this is not always the case. Even when family members or close friends act as guardians, their interests may sometimes conflict with those of the person under guardianship. A few months ago, we pointed out the link between financial abuse of elders and assisted suicide.
  • In comments to the U.S. Senate on guardianship and its alternatives, Not Dead Yet pointed out the lack of reliable data on guardianship cases.  NDY mentioned multiple instances of abuses by guardians:
    • The (Federal) General Accounting Office found that “of the eight cases in six states it examined in 2016, $600,000 was stolen from elderly wards.”
    • “A review of 27,000 Texas guardian cases regularly found unauthorized expenses, gifts to family and friends as well as unsubstantiated and unauthorized expenses.”
    • In 2015, the New York Times reported on the practice of nursing homes obtaining guardianship over patients in order to collect on debts.
    • In 2017, the New Yorker magazine reported on a scheme where profiteers targeted people for guardianship, obtained it at hearings of which the person was not informed, sold the person’s property and moved the person into assisted living facilities, where they were charged huge fees, medicated against their will, and prevented from seeing their families.
  • In order to remove a guardian, the person must petition the court and prove that they can take responsibility for their finances, health care, or other aspects of life that the guardian has control over. In Ontario, this means asking for a reassessment of decision-making capacity.
  • Many disability organizations, like the Autistic Self-Advocacy Network and the ARCH Disability Law Centre, advocate for supported decision-making instead of guardianship.  In a 2016 summit on the subject, ASAN told the stories of Ryan Keith Tonner and Jenny Hatch, who faced years of court hearings while trying to remove their guardians. Ms. Hatch was successful, and eventually able to leave the group home where her parents had placed her.
  • There is no national figure on how many people in Canada are represented by a third party under a private or public protective supervision plan; in Québec more than 34,000 people, or .41% of the population is under guadianship.  Applying that percentage nationally, there could be more than 144,000 people under guardianship in Canada.
  • While some provinces are moving toward supported decision-making, (QC, SK and AB, for example) Ontario has not updated their legislation in many years, despite a detailed study by the Law Commission of Ontario.  It’s time to get beyond the belief that, no matter their circumstances, disabled people are childlike and need to be protected. Protection can too easily become (literally and figuratively) suffocation