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Changing Attitudes Towards Guardianship

By Scott Suzuki, Esq. [1]

Laws have to apply to everyone and this rigid standard can cause problems when dealing with the issue of “legal capacity,” because capacity can’t be measured by a single standard. Someone may be perfectly capable of managing some daily tasks but may need assistance with others. For example, a person may have an easy time remembering to take prescription medications but not understand the implications of major medical decisions.

Capacity is often framed by the situation. In Hawaii, where I practice law, we have several legally defined situational capacity standards. For example, testamentary capacity means that someone is able to establish a will. Contractual capacity means that they’re able to enter legal agreements. Capacity for other situations becomes, admittedly, ambiguous. I’d argue that more nuanced categories should be established.

One of the important challenges we embrace in special needs planning is finding a balance between respecting an individual’s autonomy and simultaneously offering sufficient protection from potential harm. The traditional method of assisting someone has been through guardianship proceedings. Since guardianship has the potential to strip a ward of many decision-making rights, it can be too extreme. Instead, advocacy groups are pushing for systemic change and a mindset that presumes competence and encourages self-determination.

Legal Reform

There are many ways in which state law─which governs guardianship─ could be reformed in order to better protect the rights of individuals with disabilities.


Traditional alternatives to guardianship have included powers of attorneys (POAs) and healthcare proxies [4], which do not restrict an individual’s rights in any way. They simply authorize one or more additional persons to make legal, financial or medical choices on someone’s behalf. Decision-making authority can be strictly limited and these agreements can be dissolved at any time.

POAs could be even more useful if they were couched in language that’s easy to understand. Legal documents are famously difficult for non-attorneys to interpret—often even more so for someone with special needs. I realize that there are huge obstacles to this frankly aspirational goal. If certain details are missing from a document, the drafting attorney could be open to legal malpractice. But making sure that someone truly understands what they’re signing should be more than a nice-to-have.

There are also other alternatives that could be considered…

ABLE accounts [5] are savings options that won’t interfere with a beneficiary’s means-tested government benefits. They are only available to individuals with a qualified disability that appeared prior to the age of 26, and there are regulations to be aware of. They can be an important means of encouraging independence.

Restricted debit cards, which limit available funds and the ways in which they can be spent, can also help balance protection with autonomy.

Fiduciary contracts can be created without court involvement, are simple to change and don’t affect an individual’s rights. In this way, someone can be employed to perform precisely identified tasks—anything from paying bills to driving to performing more personal daily assistance.

Medical surrogacy enables someone to designate another individual, on the spot, to make health decisions on their behalf by simply informing the health care provider. They can also refuse to allow someone to represent their interests. While this has the advantage of respecting patient wishes in real-time, without legal costs, there are opportunities for abuse. If at all possible, a healthcare proxy is preferable.

Slow Going

Although there is increasing interest in reforming the guardianship system, progress is slow. Legal change takes time, and much education must take place in order to eradicate stereotypes. Families must be made aware that there are more flexible options to guardianship. A legal, medical and financial service professional must be trained to recognize and respect the choices of individuals with special needs, who must be trained to become self-advocates.

It’s important that families, as they grapple with such deeply personal decisions, get the information they require. Special needs attorneys, who are steeped in these issues, can help explain the alternatives.