Article on Restoration of Rights in Adult Guardianship: Research & Recommendations

Erica Wood, Pamela Teaster & Jenica Cassidy recently published an Article entitled, Restoration of Rights in Adult Guardianship: Research & Recommendations, ABA Commission on Law and Aging with the Virginia Tech Center for Gerontology (2017). Provided below is an abstract of the Article:

Adult guardianship has been characterized as both a “gulag and a godsend” in which people with disabilities – including older individuals with dementia – lose their rights in the name of protection. Regardless of the good intentions of – and essential care provided by – many
guardians who often step in at crisis points, guardianship is one of society’s most drastic interventions in which fundamental rights are transferred to a surrogate, leaving an individual without choice and self-determination.

It appears that an unknown number of adults languish under guardianship beyond the period of need – and that others may never have needed the guardianship in the first place, as a less restrictive option could have sufficed. A guardianship may be terminated by the court in three scenarios: (1) the court finds that the person has regained the ability to make decisions; (2) the court finds that the person has developed sufficient decision-making supports and no longer needs the assistance of a guardian; or (3) additional evidence becomes available to show that the person does not meet the legal standard of an incapacitated person. While, on paper, each state provides for “termination of the order and restoration of rights,” there are no data on the frequency with which restoration occurs and under what circumstances.

To enhance self-determination of individuals subject to guardianship, the American Bar Association Commission on Law and Aging (ABA Commission) conducted a project to shine a light on the little known process of restoration.