Abolish Guardianship, Protect the Rights of Disabled Individuals, and Free Britney

Britney Spears supporter Alandria Brown holds a sign about the pop singer’s conservatory prior to a trial on Thursday, February 11, 2021 at the Stanley Mosk courthouse in Los Angeles. (Chris Pizzello / AP Photo)

Guardianship only makes the news when something goes terribly wrong. Take Rebecca Fierle-Santoian, for example: as a professional guardian, she gave a non-resuscitation order to an elderly man who said he wanted to live. He died. Fierle-Santoian served as the guardian of about 450 people, and it was later found that many of them were placed under DNRs or denied life support medical care without their petitions or permission, or that of family members or the courts.

The Argument is a column in which writers and thinkers propose a provocative idea that may not be politically feasible in the short term, but that prompts greater reflection on an urgent problem of public concern.

Or consider the case of William Dean, who was placed under state tutelage after his mother’s death. The Maine Department of Health and Human Services sold his home for below market value, released his beloved musical instruments, and killed his cat, Caterpillar. Best known is Britney Spears and the ongoing struggle for control of the pop star’s life and sizable estate.

These cases make it clear that guardianship needs reform. The problem, however, is that quite a few people abuse their power. it is guardianship itself. Depriving a person of their legal rights is inherently dangerous and dehumanizing. Guardianship is based on the patronizing assumption that people with certain disabilities are unable to be full citizens and need a non-disabled person to act as a proxy in all things. While I do not discourage reform, what we need ultimately is abolition.

According to the AARP, there are currently around 1.3 million Americans under guardianship. It’s hard to say exactly how many there are as the records are poor and there are no national standards or federal oversight. As a system, guardianship is based on the assumption that guardianship is benevolent and always wants the best for its wards. And this is probably true of most guardians: They want to protect their elderly parents or disabled children from financial exploitation and worse. Unfortunately, one cannot rely on a system that depends on the individual goodness of a person with absolute power. People under guardianship still have their own opinions and feelings and deserve the respect everyone else has.

The argument

A significant disability is real. Some people have difficulty making decisions or understanding the world around them. When I call for an end to guardianship, I am not pollyanna with the people on whom it is normally imposed. There will always be a need for proxy decisions. But guardianship should be the nuclear option: it deprives everyone of legal rights, and once in place it is extremely difficult to end. According to federal law, disabled children in schools have a legal right to the “least restrictive environment”. This means that children receiving special education have the right to spend as much time as possible in non-special education classes and to make the same decisions as their non-disabled peers. Your educational plans are regularly reassessed as people’s needs are rarely static. However, the same standard does not apply to disabled adults. If a person has trouble managing money, why should they lose their right to vote or marry? Instead of depriving them of all legal rights, as is the case with guardianship, the courts should examine where a person is vulnerable and what that person needs, as schools are supposed to do. While schools do not always manage to determine the least restrictive environment, at least that standard is something to strive for. There is no such standard for guardianship.

When it comes to serving disabled adults, there are alternatives to guardianship that seek to protect as many of their rights as possible. Assisted decision-making is a system in which trusted counselors – usually family members, friends, or caregivers – explain complex decisions to help a disabled person make their own decisions. Such decisions can be as simple as the color of a bedroom wall or as complicated as the operation. While assisted decision making is growing as a legal alternative in the United States, it is still rarely seen as the first option for people in need of protection. It is also generally only used for people with developmental and intellectual disabilities. The support needs of a young person with intellectual disabilities and an elderly person with dementia are not all that different, but they exist in different universities of law.

Assisted decisions are not without limitations. Depending on the degree of disability, supporters still exert some degree of control over the person they are helping. Whenever a person needs help leaving the home, regardless of legal rights, they must rely on the goodwill of another person. However, these practical difficulties are still an improvement over the person who has no legal rights at all.