Guardianship for Persons with Mental Illness - A Legal and Appropriate Alternative?

Saint Louis University Journal of Health Law & Policy, Vol. 4, p, 279, 2011

Cardozo Legal Studies Research Paper No. 348

53 Pages Posted: 27 Sep 2011 Last revised: 11 Oct 2011

Leslie Salzman

Benjamin N. Cardozo School of Law

Date Written: September 26, 2011

Abstract

By limiting an individual’s right to make decisions, guardianship removes the individual from a range of human, social, and civic interactions thereby imposing a form of unjust and impermissible segregation. After discussing some of the problems with existing guardianship laws, and why guardianship is particularly ill-suited for individuals with psychosocial disabilities, the Article analyzes guardianship through the lens of the ADA’s integration mandate, referring to provisions of the U.N. Convention on the Rights of Persons with Disabilities for normative support, to argue that states should, and possibly must, modify guardianship systems to provide decision-making support as a less restrictive form of assistance. In the case of individuals with psychosocial conditions, where there tends to be a conscious or unconscious presumption of incapacity that is not empirically justified, and where the provision of support rather than the removal of decision-making rights has significant therapeutic benefits, the shift from surrogate to supported decision making is critical.

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

Suggested Citation

Salzman, Leslie, Guardianship for Persons with Mental Illness - A Legal and Appropriate Alternative? (September 26, 2011). Saint Louis University Journal of Health Law & Policy, Vol. 4, p, 279, 2011 ; Cardozo Legal Studies Research Paper No. 348. Available at SSRN: https://ssrn.com/abstract=1933809

Leslie Salzman (Contact Author)

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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