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