GUARDIANSHIP

POLICY STATEMENT

 The majority of people with mental retardation and related developmental disabilities can manage their own affairs with informal assistance and guidance from others, such as family and friends.  If guardianship is necessary, it should be tailored to the person’s needs.  It must be adequately monitored to ensure that the best interests of the individual are protected.

ISSUE

 The appointment of a guardian is a serious matter because it limits a person’s independence and rights.  Guardianship has been over-used by those who were unaware of less intrusive alternatives or who simply wanted to have their views prevail over the wishes of the individual.  Frequently, lesser forms of legal intervention such as limited guardianship and use of powers of attorney have been either overlooked, intentionally avoided, or unavailable.

 POSITION

 The majority of our constituents can manage their own affairs with informal assistance and guidance from family, friends, and others. If guardianship is essential, it should be used only to the extent necessary with a presumption in favor of limited rather than full guardianship.

 Systems Issues 

·      Appointment of a guardian should be made only to the extent necessary for the protection and welfare of the individual and not for the convenience of the family, the service system, or society. 

·      Less intrusive alternatives to full guardianship, like limited guardianship or power of attorney, should always be considered first.  If used at all, these restrictions on the individual’s rights and decision-making powers should be confined to those areas in which the individual clearly cannot understand the serious consequences of his or her decisions or the person lacks foresight.   

·      Mechanisms to reverse unnecessarily restrictive forms of existing guardianship must be available. 

·      Since guardianship represents a transfer of the responsibility for exercising an individual’s rights, adequate safeguards, including the right to counsel, are needed to assure the individual retains as much decision-making power as possible. 

·      Members of the judiciary and attorneys need training on alternatives to guardianship for our constituents. 

·      Individuals placed under guardianship must have legal representation at all stages of the process and must be informed about the possibility and the process to have the guardianship removed. 

  Guardian Responsibilities

  ·      They should be knowledgeable of services, supports, and systems that could significantly affect the life of the individual, and must be committed to the well-being of the individual, know and understand the individual’s needs and wishes, and act in accordance with them whenever possible.  Family members are preferable when they meet these criteria. 

·      They shall take the person’s preferences into account.

  Oversight

  ·      States should adopt minimum standards for all guardians and require that training and technical assistance be made available. 

·      Professional guardians (those who serve two or more wards who are not related to each other and receive fees) should be licensed, certified, or registered and should have the appropriate education and skills.  They should not be receiving payment for providing other services to the ward. 

·      The guardians shall be accountable for their actions, and those actions must be reviewed periodically.