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Day 9 of 15 | Guardianship

Day 8 of DRNC’s 15 for 15 campaign explores why advocating for self-determination of people with disabilities is fundamental to our purpose as NC’s Protection and Advocacy (“P&A”) organization.

People with disabilities have the same right to and desire for self-determination as everyone else. We all want to be informed decision-makers and control our own lives, receive respectful support from people we choose to turn to for help, be free from coercion, act on our own behalf, and direct our healthcare, as a few examples. 

In cases where court finds that a person is incompetent, a guardian may be legally appointed as a substitute decision maker for another adult. (Minors also have guardians, either a parent or another adult, but here we are specifically talking about adults.) A guardian may be an individual, a corporation, or the government. When creating a guardianship, the Clerk of Superior Court enters an order that sets forth the powers and duties of the guardian. The order may limit the guardian’s powers and duties, depending upon the capacities and needs of the person under guardianship. Some guardianships are limited. This means that the person can make choices about some areas of life, but the guardian makes decisions about others. 

 

Basic Guardianship Duties 

There are three types of guardianships:  guardianship of the person, guardianship of the estate, and general guardianship. Each type of guardianship has specific duties; however, all guardians must follow the same general principles.  

All guardians must:  

  • Involve the ward (person subject to guardianship) in decisions to the extent possible.  
  • Ensure the guardianship meets the actual needs of the ward.  
  • Make decisions based on what the ward would decide if capable of making the decision.  
  • Help develop the ward’s skills to assume responsibility for independent decision making. 
  • Seek information about the ward’s values, wishes, and needs from the ward, the ward’s family, friends, or legal documents such as a Living Will.  
  • Allow the ward the opportunity to exercise rights within their comprehension and judgment, and allow the ward the same possibility for error as a person who is not incompetent.  
  • Ensure the guardianship is periodically reviewed and consider alternatives to guardianship, including restoration to competency or a more limited guardianship.  

 

Read more about the types of guardians, and their guardianship duties 

 

Guardianship can threaten individual’s rights to self-determination 

In many cases, guardianship results in the loss of some or all decision-making authority belonging to a disabled person. Although North Carolina’s laws state that guardianship should seek to preserve the rights of individuals to manage their property and personal affairs within their comprehension and judgment, the reality is that the current process does little to achieve the law’s stated goal.  

Too often, guardianships result in the complete removal of a person’s right to make decisions about their own life. Guardians fall prey to false notions that adults with disabilities cannot make decisions about their life or function in society. As a result, those under guardianship are segregated from their community, isolated, and oppressed. People with disabilities who are of color, LGBTQ+, and indigent are multiply marginalized and face additional challenges navigating guardianship proceedings. 

DRNC advocates for people with disabilities to have the right and chance to live their life as they want. There are many alternatives to guardianship. These alternatives can offer people help making decisions without taking away their freedom and independence. 

 

Alternatives to guardianship 

Guardianship is an extreme form of intervention in another person’s life. Under guardianship control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent, period of time. Once established, guardianship can be difficult to revoke. Therefore, guardianship should be used only as a last resort. Less restrictive alternatives that can maintain the person safely in the community should be pursued. 

The following are common alternatives to guardianship that should be explored before determining that a guardianship or even a limited guardianship is necessary:  

  • Powers of attorney 
  • Joint bank accounts 
  • Representative payees 
  • Trusts 
  • Supported decision-making 
  • Other kinds of help to make decisions for themselves. 

DRNC advocates for alternatives to guardianship that allow people with disabilities to make their own decisions about their property, personal affairs, and healthcare. We advocate for others to be surrounded by people who can help with weighing life’s options and considering consequences. DRNC also advocates for equitable guardianship proceedings with strong due process protections. 

 

Learn more about different types of guardianship, and what alternatives are available 

 

Success Stories: Ashley 

Ashley never had a chance to be independent. Due to her disabilities, Ashley’s grandmother petitioned for guardianship as soon as she turned 18. After her grandmother passed away, Ashley’s aunt took over her guardianship. While under guardianship, Ashley wasn’t allowed to manage her own finances, relationships, or even choose where to live. Her guardians made all the decisions for her.  

Ashley’s grandmother and aunt were both physically abusive. Luckily, Ashley planned an escape. She left her abusive aunt and moved in with her biological mother. Ashley’s mother gave her freedom. She was allowed to make her own decisions for the first time in her life. But on paper, Ashley still had a guardian.  

That’s when she contacted Disability Rights NC. We represented Ashley in her efforts to remove guardianship and regain her legal independence. On February 13, 2020, the Assistant Clerk of Gaston County Superior Court agreed that Ashley does not need a guardian and restored her competency. Now, at the age of 32, Ashley is finally free to make her own decisions for her life. 

 

Resources 

 If you need help ending a guardianship, considering options other than guardianship, or want to learn how to stay in control of your own life while receiving the help you need to stay safe, contact DRNC or check out these resources.  

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