Supported DecisionMaking: Protecting
Rights, Ensuring
Choices
Jonathan
Martinis
Legal Director,
Quality Trust for
Individual s with
Disabilities
Project Director,
National
Resource Center
for Supporte d
Decision-Maki ng
PART I: I NTRODUCTION TO
S UPPORTED D ECISIONM AKING
T HERE ARE S TUPID Q UESTIONS
What’s Your Favorite
Right?
3
R IGHTS =C HOICE
"I am my choices. I cannot not choose. If I
do not choose, that is still a choice. If faced
with inevitable circumstances, we still
choose how we are in those circumstances.”
- Jean Paul Sartre
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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R IGHTS =C HOICE
C HOICE =S ELF -D ETERMINATION
 Life control
 People’s ability and opportunity to be
“causal agents . . . actors in their lives
instead of being acted upon”
(Wehmeyer, Palmer, Agran, Mithaug, &
Martin, 2000, p. 440).
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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B ENEFITS OF S ELF -D ETERMINATION
People with greater self determination are:
 Healthier
 More independent
 More well-adjusted
 Better able to recognize and resist abuse
(Khemka, Hickson, & Reynolds, 2005;
O’Connor & Vallerand, 1994; Wehmeyer &
Schwartz, 1998).
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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A NOTHER S TUPID Q UESTION
Are Your Rights Worth
ANYTHING If You’re Not
Allowed to Use Them?
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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A ND Y ET: 2,000 Y EARS AND C OUNTING
 Ancient Rome: “Curators” appointed for
older adults and people with disabilities.
 5 th Century Visigothic Code: “people insane
from infancy or in need from any age . . .
cannot testify or enter into a contract“
 Feudal Britain: divided people with
decision-making challenges into “idiots”
and “lunatics” and appointed “committees”
to make their decisions
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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G UARDIANSHIP I N T HE US
“Plenary” or “Full” Guardianship
 Gives the Guardian power to make ALL
decisions for the person.
 Used in the vast majority of cases
(Teaster, Wood, Lawrence, & Schmidt,
2007).
 “As long as the law permits plenary
guardianship, courts will prefer to use it.”
(Frolik, 1998)
National Resource Center for Supported Decision-Making
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A S A R ESULT
Guardians have “substantial and often
complete authority over the lives of
vulnerable [people].”
4 NAELA J. 1, 7 (2008).
This includes power to make the most basic
health, personal, and financial decisions.
AARP, Guardianship Monitoring: A National
Survey of Court Practices 1-2 (2006).
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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A S W E ’ VE K NOWN F OR F ORTY Y EARS
When denied self-determination, people:
“[F]eel helpless, hopeless, and self-critical”
(Deci, 1975, p. 208).
Experience “low self-esteem, passivity, and
feelings of inadequacy and incompetency,”
decreasing their ability to function
(Winick, 1995, p. 21).
National Resource Center for Supported Decision-Making
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T HE P ROBLEM
“The typical ward has fewer rights than the
typical convicted felon . . . . By appointing a
guardian, the court entrusts to someone else
the power to choose where they will live, what
medical treatment they will get and, in rare
cases, when they will die. It is, in one short
sentence, the most punitive civil penalty that
can be levied against an American citizen.”
(House Select Committee on Aging, H.R. Rpt.
100-641 (opening statement of Chairman
Claude Pepper))
National Resource Center for Supported Decision-Making
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D INO AND L ILLIAN
(credit: “ To Collect Debts, Seizing Control Over Patients”
New York Times, 1/25/15)
National Resource Center for Supported Decision-Making
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D INO AND L ILLIAN
 Married over 45 years
 Worked together to develop Powers of
Attorney and Advanced Directives
 When Lillian developed dementia, chose a
nursing home for her
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D INO AND L ILLIAN
After Dino asked questions about a bill and
Lillian’s care
 Nursing Home petitioned for a plenary
guardianship - giving ALL decision-making
rights to a stranger
 Nursing Home’s attorney: “[G]uardianship
is a legitimate means to get the nursing
home paid.”
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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W HERE D O W E G O F ROM H ERE ?
Guardianship MAY be Needed:
 In emergency situations when
 The person is incapacitated and cannot give consent
 The person did not previously identify how decisions should
be made in that situation
 There is no one else available in the person’s life to provide
consent through a Power of Attorney, Advanced Directive, or
other means
 To support People:
 Who face critical decisions and have no interest in or ability
to make decisions
 Who need immediate protection from exploitation or abuse
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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G UARDIANSHIP I S NEVER N EEDED
JUST





“Because you have ___”
“Because you’re ___ years old”
“Because you need help”
“Because that’s the way its always been”
“For your own good”
National Resource Center for Supported Decision-Making
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B UT W E M EANT W ELL
“Experience should teach us to be most on
our guard to protect liberty when the
Government’s purposes are beneficent. . . .
The greatest dangers to liberty lurk in
insidious encroachment by men of zeal,
well-meaning but without understanding.”
Olmstead v. U.S., 277 U.S. 438 (1928)
National Resource Center for Supported Decision-Making
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W E M UST ’ VE M EANT REALLY W ELL
Estimated number of adults under
guardianship has tripled since
1995
(Reynolds, 2002; Schmidt, 1995;
Uekert & Van Duizend, 2011).
National Resource Center for Supported Decision-Making
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R ESEARCH
People under guardianship can experience a
“significant negative impact on their
physical and mental health, longevity,
ability to function, and reports of subjective
well-being”
(Wright, 2010, p. 354)
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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O N T HE OTHER H AND
 Older adults with more self-determination have
improved psychological health including better
adjustment to increased care needs.
(O’Connor & Vallerand, 1994)
 People with disabilities who exercise greater selfdetermination have a better quality of life, more
independence, and more community integration.
(Powers et al., 2012; Shogren, Wehmeyer, Palmer,
Rifenbark, & Little, 2014; Wehmeyer and Schwartz,
1997; Wehmeyer & Palmer, 2003)
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A ND
Women with intellectual disabilities
exercising more self-determination are less
likely to be abused
(Khemka, Hickson, and Reynolds, 2005)
National Resource Center for Supported Decision-Making
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AND
People with Intellectual and Developmental
Disabilities who do NOT have a guardian are
more likely to:
Have a paid job
Live independently
Have friends other than staff or family
Go on dates and socialize in the community
Practice the Religion of their choice
2013-2014
National Resource Center for Supported Decision-Making
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S O, W HERE DO W E G O F ROM H ERE ?
If :
 We KNOW that some people need more
support as they age or due to disability
 We KNOW that guardianship can result in
decreased quality of life and
 We KNOW that increased self-determination
leads to improved quality of life
Then we need a means of INCREASING selfdetermination while STILL providing support
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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M ARGARET “J ENNY ” H ATCH
Margaret “Jenny” Hatch
Twenty-Nine year old woman
with Down syndrome.
High School graduate
Lived independently
Employed for 5 years
Politically active
National Resource Center for Supported Decision-Making
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Court Ordered “Temporary
Guardianship”
Guardians had the power:
“[T]o make decisions regarding
visitation of individuals with
Respondent, Respondent's support,
care, health, safety, habilitation,
education, therapeutic treatment
and, if not inconsistent with an order
of commitment, residence.”
National Resource Center for Supported Decision-Making
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A LL B ECAUSE
“She’s going to need assistance to
make decisions regarding her
healthcare, her living arrangements
and such like that, she will need
someone to guide her and give her
assistance.”
National Resource Center for Supported Decision-Making
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W HAT T HAT A LL A DDS U P TO
Jenny Needs Support:
To Understand Legal Issues
To Understand Medical Issues
To Understand Monetary Issues
In her Day to Day Life
I N OTHER W ORDS
JENNY IS A PERSON
We Are All Jenny Hatch
A WAY F ORWARD :
S UPPORTED D ECISION -M AKING
“a
recognized alternative to guardianship
through which people with disabilities use
friends, family members, and professionals
to help them understand the situations
and choices they face, so they may make
their own decisions without the “need” for
a guardian.”
(Blanck & Martinis, 2015).
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N ATIONAL G UARDIANSHIP A SSOCIATION
“[A]n individual with cognitive challenges is
the ultimate decision maker but is provided
support from one or more persons who explain
issues to the individual and, where necessary,
interpret the individual’s words and behavior
to determine his or her goals and preferences.”
- - National Guardianship Association Position
Statement on Guardianship, Surrogate Decision
Making and Supported Decision Making, 2015
National Resource Center for Supported Decision-Making
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T HINK A BOUT I T
How do you make decisions?
What do you do if you’re not familiar with
the issue?
Taxes?
Medical Care?
Auto Repairs?
What Do You Do?
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S O, S UPPORTED D ECISION -M AKING I S A
L OT OF W ORDS F OR
Getting help when its needed
Just like you and me
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A ND J UST L IKE YOU A ND M E :
Decisions Jenny had made with Support
Sign Power of Attorney
Consent to Surgery
Medicaid Waiver Individual Service Plan
Application for Paratransit
Authorization to share medical records
Assignment of a Representative Payee
F INAL O RDER




First 4 pages justify guardianship.
“However”
Guardians to be who she wants
She lives where she wants
Guardianship for only 1 year – Expired
August, 2014
Only over 2 things – medical and safety
F INAL O RDER
EVEN DURING the 1 year limited
guardianship:
“Guardians shall assist Respondent
in making and implementing
decisions we have termed
‘supported decision making.’“
J ENNY G OT J USTICE
W HY ?
Jenny is Strong, Smart, Determined
AND
She had support from:
Friends and professionals
National Organizations and Leaders
Media
A Judge who was willing to Listen and
Learn
I N OTHER W ORDS
Jenny Got Lucky
T HE L ESSON D INO, L ILLIAN , AND J ENNY
T EACH U S
Justice and Self-Determination should:
NEVER depend on luck or who you
know.
ALWAYS Be the Rule NOT the
Exception
W HERE D O W E G O F ROM H ERE ?
T HINK A BOUT “C APACITY ”
 People may have “capacity” to make some
decisions but not others.
 Or be able to make decisions some times but
not others.
 Or be unable to make decisions unless they
get help understanding the decision to be
made.
 Lack of opportunity to make decisions can
prevent people from developing capacity or
further decrease capacity.
(Salzman, 2010)
SO…
If a person can make decisions
with assistance or support, is
s/he incapacitated?
ARE YOU?
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W HICH M EANS
Before seeking or recommending
Guardianship:
What Else Have You
Tried?
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O R , A S THE N ATIONAL G UARDIANSHIP
A SSOCIATION S AYS
“Alternatives to guardianship, including
supported decision making, should always
be identified and considered whenever
possible prior to the commencement of
guardianship proceedings.”
- National Guardianship Association Position
Statement on Guardianship, Surrogate
Decision Making and Supported Decision
Making, 2015
National Resource Center for Supported Decision-Making
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M INNESOTA L AW A LREADY R EQUIRES I T !
524.5-310 FINDINGS; ORDER OF APPOINTMENT.
(a) The court may appoint a limited or unlimited
guardian for a respondent only if it finds by clear
and convincing evidence that:
(1) the respondent is an incapacitated person;
and
(2) the respondent's identified needs cannot be
met by less restrictive means . . . .
WHAT ELSE HAVE YOU TRIED?
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S UPPORTED D ECISION -M AKING C AN A DDRESS
L IMITATIONS IN D ECISION -M AKING
Supported Decision-Making can help people:
 Understand information, issues, and choices;
 Focus attention in decision-making;
 Weigh options;
 Ensure that decisions are based on their own
preferences
 Interpret and/or communicate decisions to
other parties.
(Salzman, 2011)
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I T ’ S A PARADIGM , N OT A P ROCESS
There is no “one size fits all” method of
Supported Decision-Making.
Can include, as appropriate
Informal support
Written agreements, like Powers of Attorney,
identifying the support needed and who will
give it
Formal Micro-Boards and Circles of Support
(Martinis, Blanck, and Gonzalez, 2015).
National Resource Center for Supported Decision-Making
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I N C OMMON
ALL Forms of Supported Decision-Making recognize:
 The person’s Right to Make Choices on an equal
basis with others;
 That a person can receive support in decisionmaking without giving up his or her Right to Make
Choices; and
 People often need assistance in making or
communicating their choices and there are many
ways to provide that assistance
(Dinerstein, 2012).
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S UPPORTED D ECISION -M AKING AND S ELF
D ETERMINATION
“Supported Decision-Making has the
potential to increase the selfdetermination of older adults and people
with disabilities, encouraging and
empowering them to reap the benefits from
increased life control, independence,
employment, and community integration”
(Blanck & Martinis, 2015)
National Resource Center for Supported Decision-Making
EVERYONE has the Right to Make Choices
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O PPORTUNITIES ARE ALL A ROUND U S
 “Informed Consent” to medical care
 “Person Centered Planning” in
Medicare/Medicaid
 “The Conversation” and “Five Wishes” for
End of Life Planning
 “Student Led” IEPs
 “Informed Choice” in Vocational
Rehabilitation
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PART II: F ROM T HEORY TO
P RACTICE
S PECIAL E DUCATION
Purpose of the IDEA:
“to ensure that all children with disabilities
have available to them a free appropriate
public education that emphasizes special
education and related services designed to
meet their unique needs and prepare them
for further education, employment, and
independent living.”
20 U.S.C. § 1400(d)(1)(A) (emphasis added).
National Resource Center for Supported Decision-Making
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T HEREFORE
Self determination is the ultimate goal of
education
(Halloran, 1993)
Schools should focus on improving students’
ability to set goals, solve problems, make
decisions and advocate for themselves and, just
as importantly, to give students the opportunity
to exercise these skills.
(Wehmeyer & Gragoudas, 2004).
A ND Y ET ….
Guardianship is the default option for
students with intellectual disabilities
(Payne-Christiansen & Sitlington, 2008).
School personnel are the most frequent
source of recommendations that parents
seek guardianship
(Jameson, et al, 2015)
C LOSING THE O N R AMP TO G UARDIANSHIP : :
T HE S TUDENT L ED IEP
THE STUDENT actually engages in selfdetermination
THE STUDENT can practice different decisionmaking methods in a “safe environment”
THE STUDENT leads meeting
THE STUDENT Identifies goals and
objectives with assistance from
professionals and people THE STUDENT
invites
D OESN ’ T T HAT S OUND L IKE
Supported DecisionMaking?
C LOSING T HE O N R AMP TO
G UARDIANSHIP : T RANSITION P LANNING
Transition Services include:
“instruction, related services, community
experiences, the development . . . postschool adult living objectives, and, when
appropriate, acquisition of daily living
skills”
20 USC 1401(34)
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YOU H AVE (AT L EAST ) 5 Y EARS
Transition Planning Starts: “Beginning
not later” than the year the student
turns 16
(20 U.S.C. § 1414(d))
AndContinues: At least until student is 21
(34 CFR §300.101)
TO C LOSE T HE O N R AMP
If there are concerns the student can’t make
decisions, or may need guardianship
Transition Services should provide:
“Instruction [and] related services” to
help with the “acquisition of daily living
skills”
NECESSARILY including decision-making
skills like Supported Decision-Making
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V OCATIONAL R EHABILITATION
VR program provides services and supports
to help people with disabilities:
“prepare for, secure, retain, advance in, or
regain employment”
Rehabilitation Act, 2006, § 722 (a)(1)
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W HAT I F …
The skills you need to work are
the SAME ones you need to
build self-determination and
avoid guardianship?
 Self-care
 Organization
 Communication
 Interpersonal Skills
E MPLOYMENT B ASED S KILLS ?
Would YOU hire or retain someone who
has difficulty:
Following directions or staying on task?
Communicating with you or your
customers?
Getting along with co-workers?
T HEREFORE
If these “life skills” limitations are
related to a person’s disability and
make it harder for him or her to
prepare for, get, or keep work:
VR MUST PROVIDE SERVICES AND
SUPPORTS TO HELP OVERCOME THEM
E LIGIBILITY
A person is eligible for VR if s/he
 Has a disability
 Wants to Work
AND
 VR services will help him or her work.
People who receive SSI/SSDI are presumed eligible!
34 CFR 361.42
M AKE A P LAN
The Individualized Plan for Employment
(IPE)
Lays out the PERSON’S employment goal –
the job the PERSON wants to get – and he
services the PERSON chooses to get there.
34 CFR 361.46
K EY C ONCEPT: “I NFORMED C HOICE ”
VR Counselor must work WITH the
person and give the person information
to help THE PERSON identify AND
CHOOSE his or her employment goal
and the services and supports needed
to get there.
e.g., 34 C.F.R. 361.52
D OESN ’ T T HAT …
Sound like Supported
Decision-Making?
P ERSON C ENTERED P LANNING
It’s REQUIRED in Medicaid HCBS Waiver programs Final Rules CMS 2249-F and CMS 2296-F
Medicaid Waiver Services MUST:

Be Driven by the person

Include people chosen by the person

Give primary consideration to and Include
things important to the person
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ATTORNEY ' S E THICS
Rule 1.14 of the Minnesota Rules off
Professional Conduct
When a client's capacity to make adequately
considered decisions in connection with a
representation is diminished . . . Lawyer
shall, as far as reasonably possible, maintain
a normal client-lawyer relationship with the
client.
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E THICS C ONTINUED
Comment (1) to Rule 1.14
The normal client-lawyer relationship is based on
the assumption that the client, when properly
advised and assisted, is capable of making
decisions about important matters. . . .
Nevertheless, a client with diminished capacity
often has the ability to understand, deliberate
upon, and reach conclusions about matters
affecting the client's own well-being.
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E THICS C ONTINUED
Comment to (3) Rule 1.14
The client may wish to have family members or
other persons participate in discussions with
the lawyer. . . . Nevertheless, the lawyer must
keep the client's interests foremost and,
except for protective action authorized under
paragraph (b), must look to the client, and not
family members, to make decisions on the
client's behalf.
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T HE PRACTICAL M ETHOD
DRAFT BY A MERICAN B AR A SSOCIATION
P R ES U M E t h at g u a rdi anshi p i s n o t n e e d e d .
R EA S O N S fo r co n c e r n – “ W h at ’s t h e p ro b le m ? ”
A S K i f t h e p ro b l e m i s te m p orar y o r e a s i l y a d d re ssab le - “ W h at ’s t h e ro o t ca u s e ? ”
C O M M U N I T Y C o n n e ct w i t h re s o u rc e s – “ W h at wo u l d i t ta ke to s o l ve t h e p ro bl e m? ”
a n d “ W h o ca n p rovi d e t h at? ”
T EA M H a s t h e p e rs o n a l re a dy i d e nt if i e d p e o p l e s / h e wa nt s to wo r k w i t h ?
I D E N T I F Y I f t h e p e rs o n d o e s n o t h ave a te a m , exa m i n e a b i l i tie s , l i m i tati ons , wa nt s,
n e e d s , a n d co ntac ts to s e e i f a te a m ca n b e m a d e o r s u p p or ts p rovi de d
C H A L L E N G ES
A re t h e re p o te ntial p ro bl e ms w i t h te a m m e m b e rs o r re s o u rc e s?
APPOINT
I f t h e p e rs on wa nt s to g i ve s o m e o n e e l s e t h e p o we r to s u p p ort o r m a ke
d e c i s i o ns, h e l p t h e p e rs o n d o i t co n s i ste nt w i t h h i s o r h e r w i s h e s
L I M I T A s a l a st re s o r t , s e e k a g u a rdians hi p l i m i te d to O N LY t h o s e a re a s t h e p e rs o n
ca n n o t m a ke d e c i s i o ns w i t h o r w i t h o ut s u p po rt
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“L IFE P LANNING ”
“It is my and my agent’s intent that we will work
together to implement this [Power of
Attorney/Advanced Directive/Agreement/Plan].
That means that I should retain as much control
over my life and make my own decisions, with my
agents support, to the maximum of my abilities. I
am giving my agent the power to make certain
decisions on my behalf, but my agent agrees to give
primary consideration to my express wishes in the
way she makes those decisions.”
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M EDICAL D ECISION -M AKING
“My agent will only have “full power ” to make health care
decisions for me if I am unable to make decisions, either
because the doctor in charge of my care (attending physician)
decides that I lost this ability temporarily or my attending
physician and a consulting doctor agree that I have lost this
ability permanently.
Otherwise, my agent will work with me to make decisions and
give me the support I need and want to make my own health
care decisions. This means my agent will help me understand
the situations I face and the decisions I have to make.
Therefore, at times when my agent does not have full power to
make health care decisions for me, my agent will provide
support to make sure I am able to make health care decisions to
the maximum of my ability, with me being the final decision
maker.”
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F INANCIAL A UTHORITY
I will not buy, sell, manage, or otherwise take or
exercise any interest in any tangible property or item
costing or worth more than $X without my agent’s
agreement. For example, if I want to buy or sell a car
for $20,000, I would need my agent to agree or the
sale could not go through.
In making decisions whether or not to buy, sell,
manage, or otherwise take or exercise any interest in
any tangible property or item costing or worth more
than X, my agent and I will discuss the situation and
give consideration to my express wishes before my
agent decides whether or not to agree.
B ANKING
I agree that my agent will be listed as a joint account holder on all
bank or other financial institution accounts – including checking
and savings accounts, as well as credit and debit cards – that I
have or open while this power of attorney is in effect.
I agree that I will not withdraw more than $X from any account,
write a check for more than $X, or otherwise cause more than $X
to be withdrawn from or charged to any account unless my agent
agrees.
In making decisions whether or not to agree to write checks,
withdraw money from my accounts or charge money to my
accounts, my agent and I will discuss the situation and give
consideration to my express wishes before my agent decides
whether or not to agree.
E ND OF L IFE P LANNING
“The Conversation” and “Five
Wishes”
A facilitated process where the
Person makes decisions about the
types of hospice, palliative care,
and services s/he wants.
“G ROWTH C LAUSE ”
“My agent and I will review this [Power of
Attorney/Plan/Advanced
Directive/Agreement] to see if it should be
changed or cancelled at least every two
years. However, unless my agent and I
change the [], I cancel it, my agent resigns,
or either I or my agent dies, the power of
attorney will continue.”
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T HE E LEPHANT I N T HE R OOM : S AFETY
NOTHING: Not Guardianship, Not Supported
Decision-Making is 100% "Safe."
HOWEVER: Supported Decision-Making
Increases Self-Determination (Blanck &
Martinis, 2015), which is correlated with
increased Safety (Khemka, Hickson, &
Reynolds, 2005).
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S IGNS AND S IGNALS -A BUSE
Injuries
Unusual bruising or abrasions
Fear or nervousness
Withdrawal
S IGNS AND S IGNALS – E XPLOITATION AND
C AREGIVER N EGLECT
 Basic needs not being met
 Overdependence on another
 Bills not being paid
 Living below means
 Things are missing
 Unexplained ATM or Credit Card
 Unexplained cash withdrawals
 Unexplained changes in lifestyle
 Retitling assets
 Changes in power of attorney
S AFEGUARDS
People, corporations, and other organizations that are licensed by the
Commissioner of Human Services MAY NOT be appointed guardians:
 (1) under section 524.5-309 of the Uniform Probate Code, any
individual or agency that provides residence, custodial care, medical
care, employment training, or other care or services for which the
individual or agency receives a fee may not be appointed as guardian
unless related to the respondent by blood, marriage, or adoption; and
 (2) under section 245A.03, subdivision 2, paragraph (a), clause (1), a
related individual as defined under section 245A.02, subdivision 13, is
excluded from licensure. Services provided by a license holder to a
person under the license holder's guardianship are not licensed
services.
 (d) Upon the transfer or death of a person, any funds or other property
of the person must be surrendered to the person or the person's legal
representative, or given to the executor or administrator of the estate
in exchange for an itemized receipt.
- MN Code Section 245D.06
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BUT REMEMBER: A DULTS A RE A LLOWED
TO MAKE BAD D ECISIONS
Health
Money
Love
Living Conditions
M INNESOTA L AW
524.5-102
Incapacitated person. "Incapacitated person" means
an individual who, for reasons other than being a
minor, is impaired to the extent of lacking sufficient
understanding or capacity to make or communicate
responsible personal decisions, and who has
demonstrated deficits in behavior which evidence an
inability to meet personal needs for medical care,
nutrition, clothing, shelter, or safety, even with
appropriate technological assistance."
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BUT . . . R EMEMBER
 EVEN IF the person is "Incapacitated" or is being
abused or neglected, it does NOT NECESSARILY mean
the person NEEDS A GUARDIAN.
 It could just be the person needs new or better
supports.
 524.5-310: "The court may appoint a limited or
unlimited guardian for a respondent only if. . . the
respondent's identified needs cannot be met by less
restrictive means . . . ."
 REASSESS AND REAPPLY PRACTICAL
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EVEN IF G UARDIANSHIP IS N EEDED
T HE P OINT O F T HE P ROCESS
 524.5-310 "The court shall grant to a guardian only those
powers necessitated by the ward's limitations and
demonstrated needs and, whenever feasible, make appointive
and other orders that will encourage the development of the
ward's maximum self-reliance and independence.
 524.5-313(6) "[Guardian has] the duty and power to exercise
supervisory authority over the ward in a manner which limits
civil rights and restricts personal freedom only to the extent
necessary to provide needed care and services."
 524.5-316 [Guardian's reports must include] "a
recommendation as to the need for continued guardianship
and any recommended changes in the scope of the
guardianship"
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AND E VEN W HEN A P ERSON IS IN A
GUARDIANSHIP
People Under Guardianship STILL Have the Right to Make
Choices:
People under guardianship:
 Must be treated with dignity and respect and receive
consideration of their wishes
 “Exercise control of all aspects of life not delegated
specifically by court order ”
 Can talk to or visit with people they choose unless there is
proof it would “harm” them
 Ask the court to change the guardianship or change where
they live
 Vote
- Minnesota Code 524.5-120
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G UARDIANSHIP A S A WAY -S TATION , N OT
A F INAL D ESTINATION
 The Court and Guardian's Job is to
MAXIMIZE self-determination and
independence
 The Guardian should work to increase selfdetermination through Supported
Decision-Making or other means
 Then ask the Court to remove or limit
guardianship
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NEVER FORGET:
D INO, L ILLIAN , AND J ENNY
Supported Decision-Making
ONLY works if we recognize,
respect, and protect
EVERYONE’S
Right to Make Choices.
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R EMEMBER T HE C HALLENGE
EVERY great advance in civil
rights fundamentally changed
the way “things have always
been”
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R EMEMBER T HE O BSTACLES
Change is HARD
“We were not promised ease. The purpose
of life . . . is not ease. It is to choose, and to
act upon the choice. In that task, we are not
measured by outcomes. We are measured
only by daring and effort and resolve.”
Stephen R. Donaldson
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R EMEMBER T HE G OAL
EVERY person the “causal agent”
in his or her life.
 We all need help making decisions
 Older adults and People with Disabilities
may need more or different help but have
the SAME rights
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J OIN THE C ONVERSATION
National Resource Center for Supported
Decision-Making:
SupportedDecisionMaking.Org
The Burton Blatt Institute at Syracuse
University: BBI.Syr.Edu
Jonathan Martinis, Senior Director for
Law and Policy: [email protected]
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