Law and People with Disability

31 October

• Mitch Hagopian; at disability rights WI 10 years, other agencies before that. Public interest law since 1985
• Guardianship: a surrogate decisionmaking system. Substituting the decisions of a competent person for an incompetent one.
• See Wis. Stat. § 54.10(2)-(3). These procedures mirror, more or less the four main indicators of competence from the Berg/Grisso Rutgers L. Rev article.

  See, esp. (3)(a)(2): limitations of guardianship only to cases where the consequences would be severe.

• So, you do have the right to make bad decisions (e.g., refuse medical treatment, etc.).
• There's guardianship of the estate ("spendthrift") and guardianship of the individual.
• Financial power of attorney, healthcare power of attorney. Why would some people with disabilities not have these set up? They may never have had the capacity to execute those documents, or they may not have planned for their incapacitation.
• Guardianship of the person § 54.25 is long.

  But basically it tries to set up limitations on guardianship. This is WI's policy, basically. May rights are reserved to the ward, and the guardian can't interfere with them no matter how incompetent they are.

  1A rights can be problematic: incompetent people may make dangerous choices with respect to free association.

  Lots of times parents become the guardians of their disabled children when they turn 18. But there's a danger that the parent will never transition from a parent role to a guardian role (which implies a greater recognition of the ward's rights).

  Anyway, you get to keep your consitutional rights and the ability to advocate for yourself. After that, there are rights that the court can take away (execute a will, enter into a marriage, donate organs, vote, etc.); if you lose these rights, the guardian can't exercise them on your behalf either (except (2)(c)(g)(3) - some rights can maybe be exercised by the ward with the consent of the guardian).

  Point of conflict: sterilization. Guardian thinks the ward is not competent to be a parent, and the guardian doesn't want to become a parent to someone else.

  Then there are rights that the guardian can exercise on your behalf. Consent to medical treatment (assuming the ward is not expressing an objection, which would call for a procedure to override the ward's will).

• WI is trying not to have incompetence be a binary thing: there are degrees of incompetence. A person might be competent in some areas or at some times, and not others.
• But is that really happening? Look at the Circuit Court forms. The forms reflect a bunch of checkboxes. The court can just run through and check them. So has the fancy law really helped? Well at least it gives someone who wants to assert their rights the tools to do so.
• You can get a public defender appointed for your competency hearing if you're contesting it. And an independent evaluation, if you're disputing the state's. A good guardian ad litem would have a huge influence as well: a thoughtful opinion from a neutral third party that has the ward's best interests at heart can be quite persuasive.
• In a way, low pay for guardians ad litem (and in WI you have to be a lawyer to be a GAL) helps to ensure that people really want to do it. You can make more taking PD appointments. On the other hand, if you put in too many hours, a broke county will be unlikely to keep appointing you.
• Protective placement is more than guardianship-- you have to be subject to guardianship in order to get protective placement imposed on you.

  This is a whole new level of government intrusion into your life: they're going to put you somewhere.

• Watts v. Combined Community Services
  Equal protection claim: folks in protective services don't get the same degree of review as those who are civilly committed.

  Annual reviews are now called Watts reviews. You get a GAL, and that person makes a recommendation whether a full due process hearing is indicated.

  People could petition for review themselves, but it all had to be initiated by the person in placement. So as a practical matter it was inaccessible.

  Now, protective placement is supposed to be in the least restrictive environment. And different institutions (psych hospital, locked nursing home, unlocked nursing home, assisted living) have different degrees of restrictiveness. Even in a nice nursing home, you may not get to pick what's for dinner or what time the lights go off. This isn't just about big liberty issues; it has to do with how folks live their lives.

  CBRF: Community-Based Residential Facility. Also there are Adult Family Homes and Supported Apartments.

  As a general rule, the smaller the setting, the more individualized the services can be.

• For protective placement, the individual can pay (and get maybe nicer services, but more often it's the county or the state. In WI, the main source is Medicaid. But that's discriminating, in the sense that it has a bias towards paying for institutional placements (i.e., funded at 100% of their cost) but placements to smaller settings may require counties to pay.

  Now smaller settings mean that treatment can be more individualized, and can do better at looking after individual wishes.

• In re Guardianship of Judy K
  She has been protectively placed, so she gets a Watts review. And she has improved so that she doesn't need to be in this large nursing home. But the stumbling block is that to move her into the community, the county would have to start paying, and they're only willing to pony up $0.24/day (that's what they had been paying for the other placement, the other $125 had been paid for by a federally funded state program). In the community, they'd have to start paying $40/day (the rest would be matched).

  A "good-faith reasonable effort to find appropriate accomodations." Acres of wiggle room there. And see footnote 10: even more wiggly (we're not going to say what is good enough, because the county here did literally nothing).

  This was a 4-3 decision; Watts was unanimous. This case is important to the protective placement exercise. This case is really about putting large financial obligations onto counties.

  It's pretty slippery, but it does at least require the county to make some sort of showing.

  The county looks pretty bad here: the total cost of housing for Judy would have been just $600/year, and they were trying to say they shouldn't even have to do that.