Thursday, June 30, 2016

Understanding Guardianship Part 2: The Michigan "Preventing Guardianship" Project, 2002 - 2004

Two of the goals of the 1998  Michigan “Task Force on Guardianship and Conservatorship…” were seemingly contradictory:  to reduce the number of unnecessary guardianships and  conservatorships and to guarantee “an appropriate number of qualified and concerned guardians”. The Task Force report did not include how the Task Force would ascertain that a guardianship was unnecessary or the number of guardianships that were actually found to be unnecessary in the course of reporting on guardianships in Michigan. 

State Courts complain about the lack of guardians available for people who have no willing friend or family member to take on the responsibility of guardianship, at which time the courts are impelled to turn to professional state or corporate guardians. It is my guess (I’m still looking for definite answers to this question), that there are more abuses in the public guardian system because the relationship between public or state guardians and their wards is less personal and is more fraught with conflicts of interest. Could it be that the aggressive approach of disability advocates to discourage potential family guardians from seeking guardianship has the effect of pushing courts into using less desirable professional and state guardians? By always speaking of guardianship in a pejorative way and by portraying the desire to protect a disabled family member with guardianship as wanting to take away the person's rights, advocates may exacerbate the problem of state courts not having enough guardians available to protect people who have no one else to help them. 

Here is an example of a campaign in Michigan that was supposedly launched to reduce guardianships but was turned on families and others close to people with developmental disabilities to shame them into never seeking the protections of guardianship.

Advocates for people with developmental disabilities, including Michigan Protection and Advocacy Services (MPAS) and the ARC Michigan, had been leading a long-term campaign to dissuade parents and other family members from using Michigan’s guardianship law to acquire decision-making authority for their developmentally disabled loved-ones who cannot make decisions for themselves. Some of the advocates’ activities were funded by the Michigan Developmental Disabilities Council with federal funds under the Developmental Disabilities Assistance and Bill of Rights Act (The DD Act).

From 2002 – 2004, the Michigan DD Council awarded a grant of $200,000 to Washtenaw Association for Community Advocacy (a local ARC chapter) and Michigan Protection and Advocacy Services for the “Preventing Guardianship” project. Although the stated purpose of the grant was to reduce the number of guardianships in Michigan, it was clear from the grant proposal that the project leaders philosophically opposed guardianship for people with developmental disabilities, even those with the most severe disabilities. Promoting their philosophy was central to the “Preventing Guardianship” project. 

Families were subjected to anti-guardianship activities, including public meetings that were supposedly held to give information on alternatives to guardianship, but were in reality for the purpose of proclaiming the evils of guardianship and shaming families into believing they would be depriving their loved ones of their civil rights by contemplating guardianship.  This is despite a Michigan guardianship law that protects developmentally disabled people from neglect, exploitation, and abuse. The law contains extensive protections against unwarranted and overly restrictive guardianships. By undermining state law and ignoring DD Act policy that makes developmentally disabled individuals and their families, not advocates, the primary decision makers, the DD Act-funded project may have resulted in making people with DD more vulnerable to neglect, exploitation, and abuse and families less equipped to protect them.

Public agencies and organizations were also targeted to persuade them to adopt practices and position statements that reject the use of guardianship and proclaim that it is a denial of civil rights. The expectation was that organizations that provide supports to people with developmental disabilities “…will change policies and adopt position statements that reflect an attitude and philosophy recognizing that guardianship is a denial of self-determined lives, civil rights, and that alternatives should be used.”

Parents and other family members were confused and often offended by the advocates unwillingness to acknowledge that some people with DD are not capable of making some or all decisions for themselves. Especially offensive was the accusation by advocates that family members seeking guardianship were allowing the worth of their loved-ones to be diminished by having a court declare their disabled family member incompetent. There were also attempts to exaggerate the difficulty of getting guardianship in the Probate Courts by statements from advocates who said the process was expensive, difficult, and exhausting and should be avoided at all costs. In fact, Michigan Probate Courts are usually family-friendly and most parents obtain guardianship without an attorney. Some Probate Courts offer help to families before a guardianship hearing that includes helpful references to the law and other educational materials on their Websites. As long as the person who needs a guardian is eligible for SSI, there are no court fees. 

Groups opposing guardianship by family members who accept federal funds under the DD Act with enthusiasm, usually reject DD Act policy that makes developmentally disabled individuals and their families, not advocates, the primary decision makers regarding the services and supports they receive. Ignoring DD Act policy and undermining state law that protects developmentally disabled people from neglect, exploitation, and abuse should not have been rewarded with DD Act funds

Michigan’s law for guardianship for people with developmental disabilities: start here and navigate forward to other sections by clicking on the navigation arrow. 

Wednesday, June 29, 2016

Understanding Guardianship Part 1 : Facts and Data

Opposition to guardianship for people with developmental disabilities by disability rights advocates has been growing over the last twenty years as more funding becomes available for promoting alternatives to guardianship. Supported Decision-Making (SDM) is the most recent initiative that promotes “a process in which adults who need assistance with decision-making…receive the help they need and want to understand the situation and choices they face, so they can make life decisions for themselves, without the need for undue or over broad guardianship” [from “Supported Decision-Making: An Agenda for Action”, 2014, p.1]. The Federal Administration on Community Living (ACL), under the U.S.Department of Health and Human Services, has given millions of dollars in funding for multi-year projects to promote and do research on Supported Decision-Making. Among those receiving grants are the Quality Trust for Individuals with Developmental Disabilities for their National Resource Center for Supported Decision-Making and the Burton Blatt Institute at Syracuse University in New York.

While slogging through articles and reports on guardianship and its alternatives, I was struck by how little data is available on guardianship. Very few reports make distinctions between guardianships for people with severe developmental  disabilities, people with mental illness, physically incapacitated adults, and aging citizens who can no longer handle their own affairs or are affected by Alzheimer’s or other forms of dementia. To illustrate the importance of making these distinctions, my son Danny, who has been profoundly mentally and physically disabled since birth, has never accumulated property or wealth and is unlikely to be the target of unscrupulous probate attorneys who want to get their hands on his loot. Our guardianship is the best tool we have to make sure he is not taken advantage of and that his rights are protected. My mother, however, who lived to be 98 years old and had some degree of dementia by the time she died, was a good example of someone who had everything in place for my father and I to make decisions for her and could have been at greater risk of exploitation if she had been forced into a court-appointed guardianship.

Another question is, who are the guardians? It appears that the vast majority are close family members or friends of the person needing guardianship. Guardianship abuse from family members can occur, but it appears that corporate or state guardians with dozens of wards are far less likely to attend to the needs and wishes of people under guardianship. More stringent regulation of corporate and state guardians may be warranted, but family guardians may be overly burdened by too many requirements aimed at professional guardians and may not need the same kind of monitoring and supervision by the court. 

Much of the reporting on abuses in guardianship (see the National Association to Stop Guardian Abuse) is anecdotal. These anecdotes are rarely quantified to give an overall idea of the extent or causes of guardianship abuse. Although there are horrific stories about what can happen to people under guardianship, we rarely see stories about unpaid family guardians who defend their family members against agencies and individuals who, through neglect or the intentional desire to do harm or simply to save money, exploit vulnerable people with disabilities. And then there are advocacy organizations who claim to know better than the family what people need and are often the recipients of funds for projects that may conflict with the interests of the people the advocates claim to represent. 

Speaking of anecdotes, this has to do with guardianship procedures at our local Probate Court. In 1996, we filed a petition for guardianship for our son Danny. The Court appointed an attorney to represent him, ostensibly to protect his rights and to make recommendations as to his need for guardianship and whether he had any objection to my husband and I becoming his co-guardians. The attorney never called us to find out more about Danny. My husband and I finally met him in the hallway outside the courtroom 15 minutes before the hearing at which time the attorney thought I was the caseworker from Community Mental Health who would be submitting a report to the Court on Danny's condition. Near the end of the hearing, the attorney turned to Danny and asked Danny, who has never been able to talk or communicate in any specific way, if he had anything he would like to say to the Judge. Danny did not respond. Afterwards, we assume the attorney collected his $600 from the Court, the going rate for attorneys representing people who are too poor to pay attorney’s fees. There are lots of conclusions I could have drawn from this one instance of an attorney neglecting his duties, but I talked to other families who had good experiences with court-appointed attorneys who were both caring and fair.

With that said, this is a report from Michigan called the Task Force on Guardianship and Conservatorships; Final Report, September 10, 1998”. The Task Force was created in 1996 by the State Court Administrative Office (SCAO) after news stories were published about abuses by a professional guardian in Wayne County. 25 people were appointed to the Task Force, including probate court judges, probate court registers and staff members, both houses of the Michigan Legislature, relevant executive  branch agencies, several advocacy groups, the State Bar Association, academia, and members of the probate bar.

The goals of the Task Force were to make recommendations on the following topics:
  • Reduction in the use of guardianships and conservatorships;
  • Guarantee of an appropriate number of qualified and concerned guardians;
  • Guarantee of adequate monitoring of guardians and court operations; and
  • Institution of needed standards, training, and education.

The report said that two-thirds of the probate courts did not keep a statistical record of the total number of guardianships and of the percentage of guardianships that are limited (or partial) as opposed to plenary (or full). Although the idea of the Task Force was instigated by abuse by a professional guardian, it found that the vast majority of people filing guardianship petitions were family members or close friends of the person. Guardians often had guardianship recommended to them by other agencies or professionals. 

Here are some of the recommendations of the Task Force:

To reduce the use of guardianships and conservatorships, it recommended that local resources be established to assess the need for guardianship and develop alternatives to guardianship. It also recommended that an effort be made to educate personnel in hospitals, nursing homes, and other medical or psychological personnel to emphasize presumption of competency and alternatives to guardianship.

To reduce the unnecessary appointments of guardians, the Task Force recommended collecting better screening information on court forms, requiring court-appointed attorneys to include an evaluation of the functional capacity of the potential ward, and more training for judges on cognitive and physical impairments, mental illness, and the aging process. It would have been helpful to know how the Task Force ascertained whether a guardianship was unnecessary and how many unnecessary guardianships were found, but that was not mentioned in the report. 

Recommendations on how to better manage guardianships and conservatorships included minimum ethical standards for professional guardians, compelling courts to comply with statutes and court rules, requiring annual review of accountings, and restrictions on real estate transactions involving the ward’s property. These recommendations seem obvious and it is surprising these were apparently not already implemented by the courts that handle guardianships.

In addition, the report recommended that the Courts should increase the recruitment and training of volunteer guardians, and more guardians who are state-agency-funded and -monitored should be provided as guardians of last resort. This is also surprising, considering that the main complaint was that too many people had court-appointed guardians. The shortage of guardians available for appointment by the court is often mentioned in other reports on guardianship.

The report also includes this statement:

“Many of the recommendations may increase costs to the local funding units or state agencies. Implementation of such recommendations must only be done with a corresponding increase in appropriations to cover costs to avoid any unfunded mandates.”

Some members of the Task Force belonged to organizations that would later become recipients of the type of funding recommended by the report. This included representatives of Michigan Protection and Advocacy Services and the director of the Washtenaw Association for Community Advocacy, a local affiliate of the ARC. They received funding from the Michigan DD Council from 2002 - 2004 for the “Preventing Guardianship” project. 

More to come….

See also Comments to the National Council on Disability on Guardianship and Supported Decision-Making

Tuesday, June 21, 2016

Massachusetts: Sheltered workshop closures result in less employment and fewer options for DD

Here at The DD News Blog, we have covered the movement to close sheltered workshops  for people with developmental disabilities. These closures have been supported by disability rights advocates who claim that it is a civil rights issue and that services for people with disabilities provided in congregate settings (settings that serve more than 3 or 4 people with disabilities together) are necessarily discriminatory. That the individuals involved in sheltered workshop programs voluntarily choose to work in these settings and need the services they provide, does not seem to matter. As far as these advocates are concerned, they know better and have determined without necessarily knowing the individuals involved that congregate programs are illegally segregating and isolating. More often than not, the legal justification for this is based on a misinterpretation of the 1999 U.S. Supreme Court Olmstead decision interpreting the Americans with Disabilities Act.

Disability rights advocates  have also pushed to eliminate sub-minimum wage certificates for people with disabilities who work at a slower pace than their non-disabled peers or are otherwise unable to cope with integrated, competitive work settings. These certificates issued by the U.S. Department of Labor are often used by sheltered workshops to employ people with developmental disabilities. While abusive employment policies that exploit people with disabilities should not be tolerated, sub-minimum wages allow sheltered workshop programs to continue operating and pay for the services they provide. The people employed usually are eligible for social security and Medicaid benefits that subsidize their living expenses and pay for needed services. For people with DD who want to work in competitive, integrated work settings, supported employment services should be available along with a variety of work options that fit the needs of the individuals involved.

With the elimination of sub-minimum wages and the movement to close sheltered workshops, both reinforce the other and mainly result in reducing employment for people with DD and eliminating options that often work better for people with severe disabilities. 

Here is yet another example of this from the Massachusetts COFAR Blog:

David Kassel at COFAR has been covering a 2013 plan by Massachusetts to close sheltered workshops and to place people with developmental disabilities into the mainstream workforce. The promise made by disability advocates, the Massachusetts Department of Developmental Services (DDS), and corporate service providers was that integrated, competitive employment would be available for people with even the most severe disabilities, eliminating the need for sheltered workshops. As often happens, the promise has yet to materialize, leaving people with disabilities with fewer options for employment.

In “Few people moving from sheltered workshops to ‘integrated’ jobs”, 1/30/16, David Kassel describes the lack of progress toward a policy to move people with DD into integrated employment.

“While the Baker administration appears to be moving ahead with a policy of closing all remaining sheltered workshops for developmentally disabled persons in Massachusetts, records show that relatively few people so far have been transferred from the workshops to the 'integrated employment settings' that are supposed to replace them.

"Confirming our concerns, the data from the Department of Developmental Services show that most of those people have been transferred to community-based day programs funded by DDS or MassHealth.”

According to Kassel, DDS records show that the number of people in sheltered workshops decreased by 61 percent, while the number of people with DD in corporate-run, community-based day programs increased by 27 percent. The number of sheltered workshop providers dropped from 39 to 14.

“In contrast to the increase in day program use, the number of developmentally disabled people in 'integrated employment' settings increased from August 2014 to 2015 by only 337, or about 6 percent…”

Kassel goes on to explain what happened:

“‘Integrated individual employment' is defined by DDS in a 2010 policy directive as 'taking place in a workplace in the community where the majority of individuals do not have disabilities.'  In addition, the policy directive states that the 'optimal employment status is earning the prevailing wage.'

"Many families of the sheltered workshop participants have countered that those [sheltered workshop] programs are fully integrated into the surrounding communities and provide the participants with meaningful activities and valuable skills.  Those families have also raised concerns that there are relatively few integrated or mainstream workforce jobs available for people with developmental disabilities; and that absent a sufficient number of such jobs, former sheltered workshop participants  are likely to be transferred permanently to community-based day programs that do not offer the same activities or skills as the workshops did.”

Funding to transition people into competitive employment was less than requested and it appears that much of it went to providers of community-based day programs.

Kassel concludes that, “The disappearance of sheltered workshops appears to be yet another example of the erosion of cost-effective care for the developmentally disabled due to the influence of corporate interests that stand to benefit financially from it. At the very least, this case shows that a public agency should not develop policies jointly with the corporate contractors that it funds.” 

In “House and Senate not following their own funding plan for employment of the developmentally disabled”, 5/31/16, by David Kassel at COFAR Blog, the story continues: All sheltered workshops in Massachusetts are scheduled to close by June 30, 2016. 

“But the problem is that the Legislature, and to some extent the administration itself, aren’t following through on the policy, which calls for beefing up funding for DDS day programs and job development staffing.  Last week, the Senate joined the House in rejecting higher funding levels considered by the policy planners to be needed by both day programs and employment programs for Fiscal Year 2017.

“…A likely result of this apparent under-funding is that relatively few people will be placed in mainstream jobs, but rather will be sent to potentially overcrowded day programs with inadequate staffing.”

In comments to the state, 

“…the ADDP [the Masssachusettts advocacy group for corporate service providers] maintained that funding for both the community day and work line item and sheltered workshops transfer line items needed to be boosted significantly in order to fulfill the plans to close the workshops and transfer clients to mainstream jobs…

“The ADDP comments also noted that as of October 2015, the number of individuals receiving community based day services more than doubled from 2,656 individuals as of June 2013, to 5,422. While noting that this increase was directly related to the closures of the sheltered workshops, the ADDP stated that the majority of those persons were not receiving any other DDS-funded employment services.

“The ADDP comments also pointed out that DDS day programs require significantly higher levels of staffing than the sheltered workshops did.”

Kassel concludes that, 

“It appears that the only policy the Legislature and the administration have pursued with a real level of commitment has been closing the sheltered workshops. But that’s only half the plan.  The problem with the Legislature, in particular, is that while it bought into the first half of the plan, it now has seemingly abandoned the critically important second half.

“Thousands of people have or will be removed from their sheltered workshops, and the Legislature appears to be leaving an unknown number of them in the lurch.”

Photos : June 2016

Capitol Hill

Midsummer Night

Greek Festival


Midsummer Night 2


Huron River Swan Family