Guardianship requests decline as knowledge of alternative legal option grows

Supportive decision-making alternative helps maintain people’s rights to make decisions

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By Emily Davies

AUBURNDALE, Wis. (WSAW) - In July 2020 Jordan Anderson and his twin, marked a milestone; the two turned 18 and became legal adults. It is a big day for anyone, but especially for children with disabilities and their families. Born 12 weeks early, the two have cerebral palsy.

The Auburndale family scheduled a hearing with the court that fall so Anderson’s parents could have legal guardianship over them to protect them and support them as they go through adulthood. In addition to planning for the two to graduate high school and prepare for their future, securing guardianship is an expected next step for many families who have children with disabilities.

Just before the hearing, Anderson attended a virtual conference that empowers people with disabilities called the Wisconsin Self-Determination Conference. He sat in on a session George Zaske, an attorney and member of the Wisconsin Board for People With Developmental Disabilities, led.

“That was the first time I’ve ever heard about supportive decision-making,” Anderson said. “Once I heard George say you might lose your right to vote, that really got my mind going.”

The sports, journalism, politics, and hunting enthusiast also learned guardianship could take away his right to hunt and make decisions.

“These are pretty significant decisions,” Zaske told NewsChannel 7. “A guardianship order can transfer all of the rights to a guardian and that guardianship order can stay in place for decades.”

After listening to the concerns and frustrations of individuals and families navigating the guardianship system, the Wisconsin Board for People With Developmental Disabilities worked with legislators to offer a less restrictive alternative. Wisconsin became one of the first five states in the country to enact the supportive decision-making law in 2018.

It is a legal document that gives the person with a disability or aging individual the ability to get support from people they trust in areas they need support, like making financial or medical decisions but leaves the ultimate decision about what to do in those circumstances up to that individual. It is a document that does not require the time or cost of going to court and is recognized by the State of Wisconsin.

“Without a law that is equally recognized the way guardianship is recognized, you know, families ran the risk of saying ‘yes, my family member wants supportive decision-making,’ but then going into a formal system like a school or a hospital and not having that recognized,” WBPDD’s executive director, Beth Swedeen stated.

Anderson learned all about the option a day before his guardianship hearing. The next morning as he was getting ready for school, he talked with his parents, shared his concerns, and told him about supported decision-making.

Anderson’s parents, like many other people looking to find ways to protect and support loved ones with disabilities, were told by attorneys they could either have guardianship over their son or no guardianship. When told about supportive decision-making, their attorneys said they had to do more research.

Since the law was introduced, guardianship requests have declined each year from 5,147 in 2017 to 4,146 by 2020. Zaske said there is still a lot of education need about supportive decision-making, noting that institutions like schools, medical facilities, financial institutions, and even judges are not aware of the different options.

“Until supportive decision-making came around, it (guardianship) was really the only option. It was kind of black and white and people over-protected their loved ones and checked a lot of options that are on the guardianship petition,” Zaske, a parent of a child with disabilities said.

As a parent, he recognized that you want to do everything to protect your child because they are not as supported in the adult world as they were as a child going through school. He noted just like all adults making their own decision, adults with disabilities may make mistakes. As long as they do not have life-threatening consequences to those decisions, there are other alternatives to help guide and protect them.

“A guardianship can be appropriate if somebody can’t recognize danger. (If) They don’t have a good sense of when they’re being exploited. But research has shown that if you give a young person, even with a cognitive disability to practice that decision-making, then, in fact, they get better at making those decisions and get a better sense of who they are and their sense of autonomy,” Zaske explained.

Swedeen said families often ask if they should go through the guardianship process first and then go to less restrictive options later, but she urged that is not recommended. She said guardianship is the most restrictive way to protect a loved one with disabilities, it costs a lot of time and money, and it can be difficult to reverse or reduce a guardianship’s restrictions after being implemented. Even if the family and individual want guardianship removed, she explained that person has already been considered legally incompetent and it is up to a judge to decide to change that label.

“So if you can start with the flexible tools and if they don’t work or if they’re not complete enough, then consider something more restrictive, that’s always going to be the easier path and the path that keeps people’s rights intact,” she said.

“I have the best parents in the world for listening to me,” Anderson smiled. He and his family decided to implement powers of attorney for medical and financial decisions, retaining Anderson’s rights, but providing him less restrictive support when he needs it.

To learn more about supportive decision-making click here. You can also register for the free Wisconsin Self-Determination Conference happening virtually Oct. 18-21, which will include in-depth explanations of options for people with disabilities who need support. Anderson will also be speaking at that conference.

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Guardianship requests decline as knowledge of alternative legal option grows