People with cognitive disabilities may find themselves vulnerable in many ways. Historically, the approach to assisting a person with cognitive needs has been through paternalistic decision making in which someone makes decisions for another person in the person’s “best interest”. This approach is objective in nature as a decision-maker examines the circumstances presented and decides what is best for the person. In effect, this practice is similar to a parent/child relationship. Nebraska’s guardianship and conservatorship statutes have adopted the “best interest” standard. However, this is the most restrictive option for assistance in decision making.
Even though the “best interest” standard is the legal standard in Nebraska, Nebraska’s Office of Public Guardian has a statutory obligation to model guardianship best practices and is a resource for private guardians and conservators to be able to implement guardianship in the least restrictive way possible. Additionally, National Guardianship Association best practice standards indicate guardians should include the person under guardianship in decision making, guardians are not legally required to do so in Nebraska. Unfortunately, many individuals with cognitive disabilities, their families, and professionals who serve them default to believing guardianship is the only way in which a person can be protected when it comes to decision making. Fortunately, other options exist and are developing to better support decision making needs.
Prior to examining the need for guardianship, one should look at forms of substituted judgment as a less restrictive option than guardianship. Considerations, such as representative payees, health care powers of attorney and other powers of attorney are a few tools that can be put to use where the person needing assistance with decisions identifies who will help them and how, in a formalized manner. The following resources may assist in providing additional information on decision making:
Disability Rights Nebraska substitute decision making resources:
*Representative payee: https://tinyurl.com/y8fj2zy8
*Nebraska’s State Unit on Aging - Surrogate Decision Making in Nebraska: https://tinyurl.com/y9khonse
*Legal Aid of Nebraska’s Advance Directives and Power of Attorney tools: https://tinyurl.com/yavth673
The least restrictive option in decision making is Supported decision making (SDM), a formal term given to decision making assistance that most everyone uses every day. The American Bar Association (ABA) states SDM “describes the process by which most individuals make decisions – by consulting with friends, family, social services, community organizations, and/or other sources of support to weigh the pros and cons of a decision, review potential outcomes, and finally make a choice.”
In August, 2017 the American Bar Association House of Delegates adopted a resolution on supported decision making as a less restrictive alternative to guardianship. This is a great step toward the movement of placing the person with a disability at the center of the decision making process. Additionally, Texas and Delaware have recently adopted legislation to formalize supported decision making. Recognizing the need for ways to educate and support people with cognitive disabilities to make their own decisions is a trend that is slowly moving in the right direction. Individuals and families who would like to see SDM more formalized in Nebraska may also wish to consider legislative changes as well.
In the meantime, all of us should commit to exercising the least restrictive options first. Individuals and families who may be looking for alternatives to guardianship must consider what might work best. The American Bar Association has recently produced a Practical Tool for Lawyers: Steps in Supported Decision-Making in which attorneys are to assist their clients with finding alternatives to guardianship as a starting point rather than automatically assuming guardianship is what is needed. The tool provides not only guidance to attorneys but can be used by others looking for options as well. You can find it here: https://tinyurl.com/yaqtbb88
Links to additional items of interest mentioned in this article (Use your browser's Back arrow to return to this list between articles):
* Nebraska's Office of Public Guardian: https://tinyurl.com/y7dlfw5a
*National Guardianship Association Best Practices Standards: https://www.guardianship.org/standards/
*Legal Requirements of Guardians in Nebraska: https://tinyurl.com/yaylt3x7
*National Resource Ctr for Supported Decision Making: http://www.supporteddecisionmaking.org/
*American Bar Association (ABA) position on Supported Decision Making: https://tinyurl.com/y9hm2rz8
*ABA Resolution on Supported Decision Making: https://tinyurl.com/y8s68bfr
*Texas - Sample Supported Decision Making Agreement Form: https://tinyurl.com/y7vcjkqk
*Delaware - State Code on Supported Decision Making: https://tinyurl.com/ya5abkc3
Marla Fischer-Lempke, J.D. is the Deputy Director for the Office of Public Guardian. She has had personal and professional experience with people with disabilities throughout her life.
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