THE UNFORTUNATE experience Britney Spears has had under guardianship should not be construed to imply that all guardianship arrangements are abusive or exploitative.
And the Spears case should not be used, in particular, to advocate for legislation that could make it more difficult for family members to become or remain as guardians of persons with intellectual and other developmental disabilities.
Those, however, are implications that we think can be drawn from an opinion piece by Scott Harshbarger and Paul Lanzikos in CommonWealth. Citing the Spears case, the piece states that Harshbarger’s and Lanzikos’ organization, The Massachusetts Guardianship Policy Institute, is seeking better oversight “to prevent overreaching by guardians or conservators…”
The article specifically calls for legislation to create a state Office of Adult Decisional Support Services (H.1898 and S.974). According to the piece, the office would “improve oversight and best-practices in guardianship and conservatorship, as well as support alternatives to guardianship—such as supported decision-making—statewide.” (Emphasis mine.) More about supported decision-making in a moment.
Certainly, there are compelling questions as to why someone like Britney Spears remains under guardianship, also known in some states as conservatorship. She is a hugely talented singer, songwriter, dancer, and actress who we assume is cognitively normal, and who appears to be involuntarily trapped under the guardianship of her father. She appears to be capable of making her own life choices.
But not all guardianship arrangements are like Spears’ relationship with her father, and not all persons under guardianship are capable of making their own life choices. Yet that is one of a number of distinctions that appear to be lost or glossed over in Harshbarger’s and Lansikos’ piece, and are glossed over as well by the supported decision-making movement.
Guardianship is under attack, and the Spears case, in particular, is being used by anti-guardianship activists around the country and even by some members of Congress to justify the elimination of guardianship.
We are concerned that the Guardianship Policy Institute may be proposing the Office of Adult Decisional Support as a backdoor means of instituting supported decision-making in Massachusetts as an “alternative to guardianship.” Supported decision making is an arrangement in which individual guardians are replaced by teams or “network supporters,” who enter into written agreements with disabled individuals to help them make decisions about their care, finances, and living arrangements, and in other areas. Supported decision making proponents maintain that guardianship unduly restricts the rights of disabled individuals to make those decisions.
We think supported decision-making can hold promise for some high-functioning individuals; and we would support its adoption with adequate safeguards, particularly safeguards against the potential marginalization of family members. The problem with proposed legislation to implement supported decision-making in Massachusetts (H.272 and S.124) is that, as with earlier versions of the measure, there appear to be few, if any, such safeguards in it. The bills still provide no standard for determining who might be eligible for supported decision-making.
The legislation continues to avoid the question whether everyone is really capable of making their own decisions in those very important areas. Supported decision making proponents need to recognize that there are some individuals who do not have the cognitive skills necessary to make reasonable decisions. Those people need guardians – preferably guardians who are family members.
The legislation that would create the Office of Adult Decisional Support Services is, moreover, vague as to the duties of the proposed agency; and “decisional support services” are not even defined in the legislation. The Office would be tasked with “developing oversight and accountability procedures to prevent potential errors or abuses by decisional fiduciaries.” We think better oversight and more accountability are needed in the probate system; but it is unclear what the proposed Office would consider to be abuses.
We have identified what we think are abuses, including the incentives the probate court system in Massachusetts gives to professional guardians to acquire as many wards as possible while doing little to represent them. This raises another distinction that Harshbarger and Lanzikos appear to have failed to make. In our experience, the overreaching that they refer to applies much more commonly to professionals hired to serve as guardians than it does to family members.
We think reform of the probate system in Massachusetts is needed, and a first step would be passage of H.1733, a bill which would require that probate court judges consider parents of individuals in the DDS system to be suitable guardians for them. In too many instances, Department of Development Services officials, clinicians, providers, and probate judges dismiss families as uninformed or meddlesome. But we have seen time after time that it is family members who not only have their loved ones’ best interest at heart, but are often the ones most intimately knowledgeable about their physical and emotional conditions.
A serious discussion of guardianship reform is sorely needed. But the
proposal from Harshbarger and Lansikos appears to be one-sided. Basing
their proposal on the Britney Spears case is a key indication of that.