What Judges Need to Know About Supported Decision-Making, and Why

• Published in: The Judges' journal Vol. 58; no. 1; pp. 26 - 32
• Main Author: Glen, Kristin Booth
• Format: Journal Article
• Language: English
• Published: Chicago American Bar Association 01.01.2019
• Subjects: Advisors; Alternatives; Americans with Disabilities Act 1990-US; Analysis; Court hearings & proceedings; Decision making; Decision support systems; Disability; Education; Guardians; Interdisciplinary aspects; Judges & magistrates; Law; Powers of attorney; Minnesota; United States > US; Texas; Nevada
• ISSN: 0047-2972; 2162-9749

"11 and the guardianship statutes of 31 states, with analogous language in seven other state statutes, and case law imposition in two more. 12 Judges in most guardianship proceedings are required to consider less restrictive alternatives before imposing guardianship. [...]recently, those alternatives have generally involved health care proxies, living wills, trusts and/or powers of attorney executed by an older person before developing her/his disability, or special needs trusts, or other financial instruments created by others for the person's benefit. According to Justice Hecht,40 problems with guardianship arose in part because of Texas's diverse, nonunified court system- with guardianship proceedings in small rural counties presided over by judicial officers who were not law trained. [...]the court has restored rights to a number of previously "protected persons" who were subject to guardianship. Despite the absence of legislation requiring third parties to honor supported decision-making agreements, a local trust company is now reaching out to social workers to determine whether there is a supported decision-making system in place for persons with intellectual disabilities, rather than, as was the previous practice, insisting on the appointment of a guardian. Because of Judge Doherty's commitment to the rights of young adults with intellectual and developmental disabilities, and her belief that courts can do better to serve them and their families, supported decision-making is well on its way to becoming an effective and recognized practice in Nevada.46 Judges have also taken active roles as members of Advisory Committees and Councils in pilot projects testing the use of supported decision-making to divert persons with I/DD from guardianship, and to restore rights to persons currently subject to guardianship.