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Capitol Correspondence - 03.26.18

NCD Releases Report on Guardianship Alternatives

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On March 22, 2018, the National Council on Disabilities (NCD) released a report on the guardianship process, which affects 1.3 million Americans by legally finding them incapable of making decisions for themselves. Click here to access the full report, and see below for NCD’s summary of their findings and recommendations.

Summary:

  • Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
  • Capacity determinations often lack sufficient scientific or evidentiary basis.
  • Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
  • People with disabilities are often denied due process rights in guardianship proceedings. 
  • Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
  • Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
  • There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.

Additionally, given the implications guardianship has for civil rights, ANCOR wishes to bring members’ attention to another article in this issue on the effects of guardianship on voting.