There is movement and attitude that many guardianships are unnecessary and can be avoided by using “Supported Decision-Making”, thereby making guardianship unnecessary. I believe that the concept of avoiding a guardianship by using Supported Decision-Making is ridiculous. By the time an individual is incapacitated to the point of needing a guardian, they are no longer capable of appropriate decision-making. The time for Supported Decision-Making is when the individual still has the capacity to make reasonable decisions for themselves and just need someone to help make those decisions happen.
When an individual ends up with a guardian, at least in Washington State, they have either been financially exploited, abused or have demonstrated over an extended period of time self-neglect (poor judgement) that puts them at imminent risk of serious injury or death. The court investigator (called a Guardian ad Litem in Washington State) is required to rule out less restrictive alternatives before recommending a guardianship.
Should guardianship clients have as much autonomy as possible? Of course! But to say that Supported Decision-Making can be used in place of guardianship in these cases is unrealistic. Supported Decision-Making can be used within guardianship in a controlled way with the guardian providing appropriate structure and oversight in order to guide the client to work toward the client’s goals and also to improve the client’s quality of life; but here is why it will never replace guardianship:
Cognitive Impairment: Individuals who need a guardian typically have significant cognitive impairment.
· They are unaware when they are making unsafe decisions.
· They are unable to problem-solve; which means being able to analyze why a plan works or, if it doesn’t work, why it doesn’t work, and adjust their plan accordingly.
· They are unable to see the possible consequences, good and bad, of their desires.
· They are unable to think in a logical manner.
Consequently
· They are impulsive.
· They make decisions emotionally, not logically, and these decisions can change depending on how they feel at the moment. (see “impulsive”)
· They are manipulative because they do not know how, or have lost the ability, to get their perceived needs met in an appropriate manner.
· They can be paranoid and unable to trust a helper enough to make progress.
· They have a low tolerance for stress and, as a consequence, may act out with negative or inappropriate behaviors.
There is a movement to try to avoid guardianships with a fiduciary, such as a Social Security Representative Payee, and “supported decision-making.” I have found that many low income incapacitated individuals who have Representative Payees are not able to take advantage of discounts and other low-income programs because the Representative Payee doesn’t have the legal authority and the staff in other agencies on which the individuals may rely are not always proactive in ensuring that each of their clients are taking advantage of the low-income programs available.
Because these individuals have cognitive impairment, they need someone with legal authority to act on their behalf, at the very least a power of attorney. If they are too incapacitated to designate a power of attorney, the only other alternative is legal guardianship.
Maybe the thinking is that many of the identified individuals who are supposed to be able to thrive with “supported decision-making” already have various agencies involved with them to do this. This is patently false. I have been appointed guardian to individuals who were “in the system” and I can tell you that things fall through the cracks for these individuals if they don’t have someone specifically advocating for them. For example, while my guardianship clients certainly get to make their own medical decisions whenever possible, it is my job as guardian to make sure that they truly understand, on a level that they can understand, what the medical issue is, what the options are and the positive and negative consequences to each option. The medical personnel do not know the client well enough to understand how to explain the medical issues in a way that the client can understand.
It is also important to ensure that the client is taking advantage of services that stretch their limited funds as far as possible, as well as advocating for the client when there are problems; sometimes system problems and sometimes personal problems. Without an advocate, the client’s life lacks needed enrichment and sometimes additional funds.
I have yet to hear a description of how “supported decision-making” to avoid guardianships will work in real life for individuals with cognitive impairment. This is far too simplistic an answer to a very complicated set of issues.
I invite those who think that “Supported Decision-Making” will work to avoid guardianships to clearly define its definition and illustrate how they envision it will work.