May 30, 2014

by: Emily Hastings

Michael Kirkman commentary: Ohio needs to reform guardian approach

The following article is the opinion of Michael Kirkman, the Executive Director of Disability Rights Ohio. What are your thoughts on this situation? Please feel free to comment below.

As explained by The Dispatch in its series, “Unguarded: A Dispatch Investigation,” there are many concerns with the guardianship system in Ohio. People with disabilities who are placed under guardianship usually are able to make some choices for themselves.

There is little oversight of guardians or protections for wards. Once guardianship is put in place, a person is unlikely to regain his or her rights. The lack of oversight leads to an increase in abuse, neglect, exploitation and other serious rights violations.

But the problem is that an Ohio guardianship “system” doesn’t exist. Guardianship is an ancient form of protection for orphans and unmarried women that dates to early feudal England. In more recent times, it became a private matter that was used by families to take care of loved ones or, rarely, a lawyer (or banker, or both) would be appointed to manage a large estate. Now, guardianship is being used by public entities seeking to provide protection for the individual, or by business relationships, such as nursing homes, to protect their interests. The “system” is really 88 different systems, as probate courts struggle to apply Ohio’s outdated laws to modern circumstances.

Some of the problems are larger than the guardianship laws themselves. Ohio’s protective-services laws, which are designed to help elders and people with intellectual and developmental disabilities in these situations, are grossly underfunded and underutilized. Other states have adopted new protective-services and guardianship laws. Those laws recognize that incapacity is fact specific and many times circumstantial and time-limited, and allows the protector or guardian to have specific authority to address the concern.

There are not enough guardians but too many guardianships. Courts and social-service agencies have trouble finding qualified guardians, but many people who are appointed guardians do not, in fact, need one. Person-centered services and supports can help them be independent. People with disabilities are stripped of their rights under the false assumption that they need to be cared for and protected from themselves. There are other options available, including representative payees, authorized representatives, financial power of attorneys and medical power of attorneys, that allow people to have the help that they need while still making choices about their own well-being.

Lawyers and courts do not understand presumptive capacity. Under Ohio law, a person is presumed competent — in other words, mentally and physically able to make necessary life decisions. That presumption should be carefully guarded. Under current practices, however, once a guardianship petition is filed, the presumption evaporates, and it falls to the person to defend his or her competence. Counsel is rarely appointed and full hearings are rare. Greater scrutiny at the front door would help everyone in the system do a better job of helping the elder or person with a disability.

Lawyers are not generally qualified to be guardians “of the person.” Using lawyers as “go to” guardians is a traditional practice that made sense when the person’s financial well-being was the core concern. But modern guardianship services are not legal services, and the skills needed are those of a social worker or case manager. Lawyers with large numbers of wards are actually running guardianship businesses, not law practices, and should be paid and regulated accordingly.

In those cases where guardianship is needed, the guardian who is appointed would be well-trained and monitored. Under national guardianship standards, the guardian would assist the person in making decisions and consider direction from the person unless doing so would cause harm or go against a court order. A guardian also would visit often and advocate for the ward with caregivers and government agencies. Currently, these are only suggestions and not requirements. Once a guardian is appointed for an individual, it is nearly impossible for that individual to regain his individual rights. These and the other actions described in the Dispatch series are not limited to attorneys; there are a growing number of non-attorney “ professional” guardians whose actions are not examined or regulated.

The proposed rules by the Supreme Court certainly will take Ohio in the right direction. Ohio needs a system that truly works for elders and people with disabilities, providing them with the person-centered services and supports to remain independent and free from abuse, neglect and exploitation.

Michael Kirkman is executive director of Disability Rights Ohio, the state’s federally appointed organization to protect and advocate for the rights of people with disabilities.

This article was shared from The Columbus Dispatch
by Michael Kirkman posted on May 28, 2014

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