Friday, February 5, 2016

Bill to eliminate requirement for prospective wards' legal counsel in guardianship cases put on hold

Kris Fawson
SALT LAKE CITY — A legislative committee voted to hold a bill Wednesday that would eliminate the requirement that young adults with intellectual disabilities be represented by legal counsel when courts consider their parents' guardianship petitions.

The House Judiciary Committee voted unanimously to hold HB101 to give its sponsor, Rep. Fred Cox, R-West Valley City, more time to refine the proposal.

As drafted, the legislation would be limited to young adults who have intellectual disabilities, minimal assets and are able appear in court with the petitioner. Judges must be satisfied that counsel is unnecessary, the bill states.

Cox said he sponsored the legislation to assist families who have adopted or raised a child with disabilities from birth and have the young adult's best interests in mind by petitioning courts to become their guardians.

But paying their child's legal fees, on top of their own, is a financial burden for many families, he said. However, Cox acknowledged that some petitioners may not have the child's best interests at heart.

"I’m trying to balance the 98 percent of the time with the 2 percent of the time," he said.

But some committee members expressed concerns that young adults with intellectual disabilities, in particular, need to be represented by counsel.

"The trend in the law going forward is to give and recognize more rights to the person to be protected. In fact, you're going to see, and I predict in this state, the trend will be more toward limited guardianships and limited conservatorships rather than full," said Rep. Lowry Snow, R-Santa Clara, who is an attorney.

Laura Anderson, the mother of a son diagnosed with classical autism, told the committee she has been attempting to complete the guardianship process, which is complex.

"I don't want to pay for an attorney. I feel like I shouldn't have to, but it's part of the process. It's my son's legal right to have an attorney represent him," Anderson said.

"Just because he's disabled doesn't mean he doesn't have the rights each one of us are afforded."

Anderson said the Utah Legislature removed one impediment last year by lowering the court filing fees for guardianship petitions from $360 to $35 under legislation sponsored by Rep. Becky Edwards, R-North Salt Lake.

Andrew Riggle, public policy advocate for the Disability Law Center, cautioned that the proposed legislation could run afoul of the federal Americans with Disabilities Act and the equal protection clauses of the Utah and U.S. constitutions.

"We believe the right to counsel, especially in proceedings that have the potential of bridging a person's fundamental rights, are exactly where independent representation is most important," he said.

Parents seeking guardianships find the process to be "confusing and complex," Riggle said.

"How likely is it that a proposed ward who isn’t represented is going to be able to navigate through the process on their own?"

Kris Fawson, chairwoman of the Utah Coalition for People with Disabilities, said the coalition has no formal position on the legislation but noted guardianship "is a huge issue for families."

Fawson said she obtained guardianship of a young man with Down syndrome in the 1980s. No health care provider has asked her to present proof of the guardianship since.

Yet, she said she has concerns about eliminating a requirement that wards have legal counsel in guardianship proceedings.

"This is a population that’s been minimized in many, many ways. To have those rights not available to them, I think, is one more way we minimize that population," she said.

Cox said his constituents tell him that a growing number of health care providers are requiring proof of guardianships because of federal medical privacy laws.

"That’s the biggest culprit in most cases," he said.

Snow said HB101, as currently drafted, was intended to create a summary disposition intended to be easier on the petitioner and the potential ward.

However, if judges fear a potential ward's rights are not adequately protected, they may "require full proceedings in order to be safe." That's the opposite of what Rep. Cox was attempting to accomplish, he said.

Riggle said advocates need to do a better job of informing families of no-cost resources available in the community to assist them if the want to seek guardianships.

For instance, the Utah State Bar's Guardianship Signature Program provides to judges a group of attorneys who have volunteered to represent respondents in guardianship and conservatorship proceedings when the individual does not have counsel of his or her own choosing.

The state court system also has online resources for families.

"It's still a problem even with all the things we have," Cox told the committee.

"I appreciate your willingness to help."

Full Article & Source:
Bill to eliminate requirement for prospective wards' legal counsel in guardianship cases put on hold


Dusty said...

I am not sure if this is good or not. Adult persons with intellectual disability should be able to avoid the court system and guardianship by the court assigning DPoA to the parents. There's got to be a way.

Finny said...

I'm with you, Dusty. I hope someone who is active in the disability community will post a note here with alternatives to guardianship for these families.