Guardianships for those with disabilities draws debate

by Joanna Gagis

Some advocates for those with disabilities want less restrictive guardianships or none at all

Guardianship is a legal process that’s handled through the courts, giving one legal authority over someone who’s unable to make decisions for themselves and often with intellectual or developmental disabilities.

Now that longstanding process is coming under new debate.

“If you have a guardian, that person has the right to decide everything for you,” said Kelly McGuire, staff attorney for Disability Rights New Jersey. “There’s very few rights that you actually retain under guardianship.

“I see it in my clients, that people subject to guardianship will come to me and say that they don’t want to be subject to guardianship anymore,” she said. “Or they want a less restrictive guardianship or less restrictive guardian, because these tend to be abusive relationships. Not all guardians are abusive, but it’s a very easily abused system.”

Disability Rights New Jersey represents many individuals with disabilities, often fighting guardianship cases in court.

Among the clients is Peter Brumlick, who has autism and spent three years and close to half a million dollars in court trying to get out from under his mothers’ petition for guardianship. The appellate court recently ruled on Brumlick’s behalf, but it’s the petition process that has him concerned for others like him.

Yet a new bill in the Statehouse would further streamline the process, and advocates are concerned given how easy it is to apply for guardianship already — and how hard it is to get out from under a request, let alone an actual guardianship appointment.

The bill would allow someone to request guardianship of a minor six months before that person turns 18. It was first introduced by state Assemblyman Hal Wirths (R-Sussex) and is now sponsored by Assemblywoman Carol Murphy (D-Burlington), who says it’s intended to keep the most vulnerable from falling into a care gap where family can’t advocate for them.

“A lot of times, our folks with disabilities, once they turn 18 it’s not automatic that their parents will become their guardian,” said Murphy. “So in order to avoid that break in the guardianship, it allows that parent to file early before they turn 18.”

She does want to see people who don’t need guardians to be able to live independently and seek help when they need it. But this bill puts the onus on those who would have guardianship placed over them to prove that have capacity to care for themselves.

“We shouldn’t start from the position that people are sort of guilty until proven innocent,” said Paul Aronsohn, the state Ombudsman for Individuals with Intellectual or Developmental Disabilities and Their Families. “If someone is seeking guardianship over another individual, I think it’s incumbent upon them to make the case, and make it in a thoughtful way.”

There’s another option here – one that 22 other states have adopted – that calls for what is termed supported decision-making, where the person with a disability assigns power of attorney to a caregiver so they can participate in things like healthcare and banking.

Passaic County Surrogate Judge Zoila Cassanova approves guardianship requests, and she too is in support of a more coordinated, centralized system that puts supported decision-making before guardianship.

“I feel we should try to look at the least restrictive means,” said Cassanova. “Ultimately, we should move forward as a state in how to support individuals, meet them where they are, and work on their strengths with the right support. Rather than automatically take away a person’s right and their autonomy.”

Cassanova would also like to see a shift away from court-appointed attorneys used in these cases, instead using a guardian ad litem as an advocate. Murphy has said she’s holding the bill while she continues to have discussions with stakeholders.

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Guardianships for those with disabilities draws debate