Tuesday, March 24, 2009

Someone To Watch Over Me - Follow Up Part Two

Today I am continuing my followup to my post about guardianship issues for my 18 year old daughter, Jessica. My original post is here, and Part One of the follow up appears in yesterday's post.

Question 3 - What if I had concerns regarding Jessica's care in her group home? Would I be able to intervene with a guardianship? What if I knew her caregivers were trying to cover up something? Legally could I do anything to help Jessica?

Whether you are the guardian or not, anyone can file a report of suspected abuse or neglect. Your rights as a guardian are no different in that respect from anyone else. I don't see that guardianship helps in this situation at all. A person does not decide NOT to abuse someone because she has a guardian.

Question 4 - What are my other options? Would my child have to be legally competent to sign a medical directive? Could she also revoke it should the mood strike her?

For one thing, an advance directive is not an issue for a child because everyone under the age of 18 is considered to lack capacity. I think the competency level to agree to and sign one is fairly low. I have met with individuals who are basically non-verbal, but I had no doubt that they understood the concept and I had no problem drafting an advance directive for them.

As for revoking an advance directive, yes, the person can revoke it. That's one of the beauties of the concept because it is easy to write, easy to use and easy to change. You can do all those things without the involvement of attorney or courts.

This is an argument that is used quite often against advance directives, but I have rarely seen it play out in real life. The only time I've heard of it causing a problem is with a person with long term mental illness whose capacity yo-yos.

Question 5 - I've protected my child ever since I adopted her. Sometimes it seems like she needs the protection still, if not more.

I live in the real world and I want everyone to have the same opportunities and the same experiences as I do. I understand that some people need extra care and attention. I am not against guardianship in some cases, but if we can protect the person while still maintaining the civil rights, then why not?

The reality is that guardianship is always an option but maybe shouldn't be our first option. If you choose an alternative now, and decide later that your daughter needs guardianship, what have you lost? If you choose guardianship now, there is very little chance you can go back and change that decision because you would have to go back to court and prove that your daughter has regained capacity - very hard to prove when the individual has life-long cognitive disabilities.

I'm glad a lot of people have trouble with the idea of guardianship because it is a last resort and should be considered only in those situations where an alternative is not feasible, especially for a young person just starting their adult life. Even in a situation where it is needed, we should still pause because we are taking away that person's civil rights. When a guardian is appointed, the person loses the right to vote - to choose where they live and work - to get married or divorced - to have a driver's license - to make medical decisions including such personal decisions as sterilization, abortion, major surgery and do-not-resusitate orders - to enter contracts to rent, buy or lease property, and to write a will or advance directive.

Even if all those rights do not apply (even if none of these rights apply) to the individual, just the sheer loss of basic civil rights that these examples portray should give us pause when we consider petitioning for guardianship.

I hope you all have found this information as valuable as I have. And again, if you are considering any legal action involving your adult child with a disability, I urge you to contact an attorney or you state's protection and advocacy organization.


Amazing_Grace said...

This was very interesting. Thank you for sharing. :)

MMC said...

I must say that I rather disagree with some of the answers at a practical level, but it was interesting. Thanks for sharing.

So what have you and Jessica decided to do? Will you be trying another alternative?

Ashley's Mom said...

MMC, we will be starting with another alternative. We will execute a power of attorney for medical and educational decisions.

Thank you for helping me formulate questions and for providing a balanced view on this issue.

MMC said...

No problem.

I'm curious about something though. When you refer to advance directives, are you including a Power of Attorney in that description? I tend to think of advance directives as "living will" type documents but I was just wondering because I found it interesting that the attorney found Jessica competent to execute a POA.

And thanks for putting up with my questions. ;-)

Ashley's Mom said...

I think the documents we will be signing are powers of attorney, not advance directives. But, as soon as I get them to sign, I will let you know.

The attorney did an excellent job of talking with Jessica and determining if she understood. Did Jess understand completely or just on enough of a level to agree? Not really sure, but she was pretty clear that it was ok for her mom to keep making decisions about her school and medical care, and if not her mom, her brother.

But again, the options are still open to me should I get the feeling that Jess isn't really understanding.