All people have a right to self-determination – that is, the right to live their lives the way they choose. Sometimes, however, a person with disabilities might need some support in making important decisions about money, health care, housing, property, public benefits, and other important issues. T
Tonight at 5:00 PM on Speak Up Arkansas, we’re going to talk about guardianship and decision-making. Joining host Kerri Michael tonight are DRA attorney Cristy Park and DRA advocate Jacqueline Gorton (herself a guardian for her adult daughter, Sarah).
As a companion piece to tonight’s show, Cristy Park shares some important information about guardianship and decision-making in today’s blog. Read on:
What to consider before guardianship?
In considering a guardianship, the first thing that should be considered is all lesser restrictive alternatives. In fact, Arkansas law requires that, even when a person is found to be incapacitated, the court shall determine the extent of the incapacity and the feasibility of less restrictive alternatives to guardianship to meet the needs of the incapacitated individual. A.C.A. § 28-65-213
Guardianship for an incapacitated person shall be: (1) Used only as is necessary to promote and protect the well-being of the person and their property; (2) Designed to encourage the development of maximum self-reliance and independence of the person; and (3) Ordered only to the extent necessitated by the person’s actual mental, physical, and adoptive limitations. A.C.A. § 28-65-105
Often when a loved one is in need of assistance with decision-making, well meaning professionals and acquaintances will immediately suggest a guardianship. Lots of family members and loved ones faced with the decision of whether to pursue a guardianship are not aware of the lesser restrictive options available. Or it may seem more convenient to just get a guardianship than consider lesser restrictive alternatives.
Self-determination is an important aspect for one’s quality of life and self-worth. Taking away more of an individual’s rights than necessary can lead to lack of self-determination, lack of self-worth, and poor life outcomes. By considering options other than guardianship, which is the most restrictive on an individual’s rights, the individual has a better chance of participating in decisions about his/her/their own life which leads to better quality of life and positive life outcomes.
Below are some of the lesser restrictive alternatives that should be considered before considering a guardianship:
Supported decision-making is a way to assist an individual in making their own decisions without removing any of their rights. The individual selects a person or group of persons to assist him/her/them in making informed decisions. When deciding who to include, the individual should decide who and what it will take for them to feel comfortable and fully informed before making important decisions.
The agreement can be formal or informal. Some states have laws in place for supported decision-making. A supported decision-making bill has been drafted in Arkansas and is expected to go before the legislature next session. But again, this agreement can be informal; a law is not required to participate in support decision-making.
Advance Directive/Psychiatric Advance Directive
An advanced directive is a tool that allows you to put your wishes in writing prior to losing capacity. You can appoint an agent to act on your behalf, list who should be allowed (or not allowed) to visit you, document which hospital you prefer, specify which medications to avoid, etc. I recommend that everyone complete an advance directive. DRA has a psychiatric advance directive template and user guide that can be found on its website here.
Power of Attorney
Power of Attorney allows an individual to designate another person(s) to make decisions for them about specific issues. For example, a medical power of attorney would allow a designated person(s) to make medical decisions for the individual. The individual can decide how may and which powers they would like to designate and can revoke the power of attorney at any time as long as they have capacity. One possible concern about powers of attorney is that there is no court oversight.
If an individual receives Social Security or Supplemental Social Security income and is unable to manage his/her/their benefits, they can be assigned a representative payee to manage the payments on his/her/their behalf. Representative Payees may be required to submit an annual accounting to Social Security Administration.
Cristy Park is an attorney with Disability Rights Arkansas. Email her at cpark@disabilityrightsAR.org.