What
can go Wrong with Guardianship?
by David Lord
for the Summer 2006 edition of Envoy On-Line
Sometimes, a person with a disability needs help making decisions.
Often, a guardian will be appointed by a judge to help. But,
guardianship can take away many rights, and some guardians don’t do a good
job.
Guardianship is not the only way to help with making decisions. You
can get help making decisions without a guardianship.
What if someone thinks you need a guardian, and you do need help making
decisions sometimes – but don’t want to lose your rights? What can you do?
1. Decide what supports and protections you need.
Do you need help with your money? Do you need help making medical decisions?
Do you need protection from abuse or exploitation?
2. Find people who you trust to support you or help protect you.
There are many people who can help. Sometimes friends or family are best.
Sometimes a staff person in a program is supportive.
Look for people who:
3. If you need help with your money, think about some of the following ideas:
Open a joint bank account.
You can set up a bank account with “two signatures required.” Since you and
one other person have to sign the checks, this can help you control spending
and protect you from people who may try to cheat you out of your money.
Ask for a payee. You can agree to have a payee appointed for your money. A
payee can help you manage your money. Many people with SSI or Social Security
have payees.
4. If you need help with medical or other decisions, think about some of the
following ideas:
Do you need a new doctor?
If you can’t understand your doctor and have trouble making decisions, maybe
you need a new doctor who will explain things better.
Ask someone you trust to come to meetings and appointments.
You can ask a friend or someone you trust to go with you to meetings. You have
the right to have someone come in with you when the doctor examines you or
talks to you. You have the right to have someone come to any meeting with you
as an advocate.
Appoint a power of attorney. A power of attorney is a document that gives someone the right to help with
your decisions. You can say what you want the person to do in the power of
attorney. You can fire the person whenever you want. Not everyone can appoint
a power of attorney – you must be able to understand what you are doing. The
person with the power of attorney is your advocate. A staff person cannot have
a power of attorney, but a family member can.
BUT – BE CAREFUL!
Do not give a person a power of attorney unless you trust them and have known
them for a long time. Make sure that the person is someone you are sure will
not cheat you.
5. If you are abused or exploited, consider the following:
Call the police and Adult Protective Services (APS).
APS and the police help people who are abused, neglected, and exploited. They
can ask a judge for a “protection order” that says that an abuser cannot
contact you. If the abuser still bothers you, they can be sent to jail.
Make a “stay safe plan” with someone you trust.
Talk to a friend, a family member, a staff person, case manager – anyone you
can trust. Ask them to help you decide what to do if someone tries to abuse or
exploit you. Make a plan.
Common Problems with Guardians and
What to do About Them.
Someone has applied to be my guardian. I don’t want the person to be my
guardian. I don’t need a guardian at all!
You can fight the guardianship. You can tell the judge that you want a lawyer,
ask other people to come to court to help you convince the judge not to give
you a guardian. If you don’t like the person who is applying to be your
guardian, you can suggest someone else. Make sure that the judge knows about
the things you can do – not just the things you have trouble with.
I have a guardian, but I don’t really need one.
You can ask the judge to remove the guardianship. It really helps to have a
lawyer to do this. See the WPAS publication, “How to Modify or Remove a Guardianship.”
My guardian takes away my rights! My guardian tries to stop me from seeing who
I want, eating what I want, and living where I want.
Sometimes guardians think that they have more powers than they really do. Sometimes these guardians can get other people to go along with them.
Speak up for yourself! If you disagree, tell other people who support you that
you think the guardian is making choices for you that are not really your choices.
Find someone you trust to help you disagree with the guardian. If you have a
staff person, ask them if they will help you.
My guardian does not listen to me.
A guardian is supposed to listen to what you say. Speak up for yourself! If
your guardian still won’t listen, get some help from someone who you trust. Talk with that person about what you want to tell your guardian. You might
want to write it down. Be prepared to tell your guardian what you want, and
get others to help you assert your rights if you need to.
My guardian doesn’t do much for me, but charges a lot of money.
If you are paying your own money for the guardianship, you can tell the judge
that it costs too much. The judge decides how much the guardian will get paid. When the guardian asks the judge for approval of the bill, you can disagree
and tell the judge why it is too much.
I lost my right to vote with my guardianship. I want to vote!
You can ask a judge to give you back your right to vote. You can do
this by writing a letter to the court. Follow the steps in “How
to Modify or Remove a Guardianship”
Guardianship and Your Rights
You have rights! You should know what your rights are so that you can decide
if you want to agree to a guardianship or to fight against it.
- You have a right to fight guardianship.
If you don’t want to have a guardian, you can oppose it. You won’t have a
guardian unless a judge in a court decides you need one. The judge will
appoint a person to investigate: a guardian ad litem.
- You have a right to have a lawyer help you in court.
If you can’t afford to pay a lawyer, the judge can get you one. If you
don’t want a guardian, you should ask for a lawyer to help you. The
lawyer will be on your side, and will help you understand what happens in
court.
- You have a right to a jury trial if you want one.
You decide whether you want a judge or a jury decide if need a guardian.
- You have a right to say who you want for a guardian.
If you don’t want the person who has applied to be your guardian to be
appointed, you can tell the judge who would be a better choice. The judge
doesn’t have to agree with your choice but must consider it.
- You have a right to go to the court hearing.
You can go to the hearing if you want to. You do not have to go if you don’t
want to, but often you have a better chance of winning if you are there.
You can have people who agree with you come to the hearing.
- You have a right to let others know about what happens with your
guardianship.
You can ask that a friend be told whenever something comes up with your
guardianship in court.
- You have a right to tell a judge when you disagree with your guardian.
You can ask a judge to fire your guardian and give you a new one.
You can ask a judge to give you back some of your rights.
You can ask a judge to get rid of the guardianship.
If you want to do any of these things, you can write a letter to the judge
explaining the problem and asking for changes.
This publication is an information service of the
Washington Protection & Advocacy System (WPAS). It provides general information
as a public service only, and is not legal advice.
If you need
legal advice, you should contact an attorney. You do not have an
attorney-client relationship with WPAS.
If you would like more information about this topic, call (800) 562-2702 (voice)
or (800) 905-0209
(TTY).
To receive this publication in an alternative
format, such as large print or Braille, please call Washington Protection &
Advocacy System (WPAS) at 1-800-562-2702.
WPAS is a member of the National Disability Rights
Network
A substantial portion
of the WPAS budget is federally funded.
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