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Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act

90 Pages Posted: 15 Dec 2009 Last revised: 13 Mar 2010

Leslie Salzman

Benjamin N. Cardozo School of Law

Date Written: December 14, 2009

Abstract

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that by limiting an individual’s right to make her own decisions, guardianship marginalizes the individual and often imposes a form of segregation that is not only bad policy, but also violates the ADA’s mandate to provide services in the most integrated and least restrictive manner. After discussing why recent reforms of state guardianship laws have proven inadequate, this Article conceptualizes guardianship as a form of disability-based discrimination and argues that Olmstead and the integration mandate are legitimately applied to the guardianship context. This Article then argues that states should be required to modify their current guardianship systems to provide decision-making support as a less restrictive form of assistance and suggests that such a modification would not necessitate a “fundamental program alteration.” Finally, this Article points to supported decision-making models that have been developed in other countries as less restrictive alternatives to guardianship that enhance the independence, autonomy, and inclusion of individuals with limitations in decision-making abilities. The hope is that this re-conceptualization of guardianship will further the development of a range of meaningful and effective alternatives for guardianship.

Keywords: disability, Americans with Disabilities Act, guardianship, integration, mental health, health, elder

Suggested Citation

Salzman, Leslie, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act (December 14, 2009). Cardozo Legal Studies Research Paper No. 282; University of Colorado Law Review, Vol. 81, p. 157, 2010. Available at SSRN: https://ssrn.com/abstract=1567132

Leslie Salzman (Contact Author)

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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