Monday, July 10, 2017
The ABA Commission on Law & Aging and the Virginia Tech Center for Gerontology have released a report, Restoration of Rights in Adult Guardianship: Research & Recommendations. The report is divided into four parts: (1) introduction & background, (2) research on restoration of rights, (3) discussion & recommendations on key issues to restoration, and (4) conclusion. The report runs 69 pages and is available for download as a pdf. Section 3 covers a number of topics, including lack of knowledge of the availability of restoration, review by courts re: continuing need for guardianship, court access, attorney representation (and the attorney's role), the guardian's role, supports available to the person, evidence and evidentiary standards, and data and research. Here is the conclusion
The time is ripe for restoration of rights to be become a viable option for people subject to guardianship. In the context of the emergent paradigm of supported decision-making, restoration can be a path to self-determination and choice. For courts, attention to restoration can weed out unnecessary cases from dockets, allowing a stronger focus on problems needing judicial intervention, and saving administrative costs of carrying unnecessary cases.
To make restoration work:
• State legislation must ensure sufficient notice that the option exists, provide for regular court review of the continuing need for guardianship, afford the right to counsel, and set workable evidentiary standards.
• Courts must assess cases for possible restoration, find ways to make individuals and families more aware of the option, make the process more accessible, take into account available supports in making determinations, and track data on restoration.
• Guardians must perceive their role as enhancing self-determination and working toward termination of guardianship with sufficient support – more as "supporters" guided by the person’s expressed wishes if possible. There must be sufficient legal decision-making tools, family supports, technological supports, and community supports readily available to bolster functional abilities.
• Lawyers must recognize and act on the potential of restoration in guardianship cases.
This study has set the stage for such actions, bringing to life the possibility that guardianship is not automatically an end but can be "a way station and not a final destination."