Disability Is No Excuse to Deprive One of Civil Liberties

The guardianship system in this country raises serious concerns. That's why the guardianship trial of Jenny Hatch, a vibrant and active 29-year-old in a battle over who controls her life, struck such a chord. Jenny spoke for many other people with disabilities when she said clearly in her trial: "I don't need guardianship. I don't want it."

On Friday a judge in Virginia denied guardianship to the parents of Jenny Hatch. Hatch will instead be able to live with her friends, couple Kelly Morris and Jim Talbert, as she had requested. This is a victory, but it should never have come to this.

If anyone else had been placed in an isolated location, against her will, with her cell phone and computer taken away, and not allowed to leave the building without permission, as Hatch was, she would either be able to lodge a charge of kidnapping, or be a prisoner convicted of a crime.

But, because Hatch is a person with a disability – and only because of that – it is completely legal, even though she has done nothing wrong.

Guardianship can, and often does, deprive a person of the ability to choose where she lives, who she sees, when she gets up in the morning, what she eats for breakfast, whether and where she works and whether she is allowed the right to vote.

Guardianship is typically created under two circumstances:

  • When adults – often seniors – develop a disability, especially one that affects the ability to manage finances or make complex decisions, their spouse or child is often encouraged to become their guardian.
  • And, when a child with developmental disabilities reaches 18, her parents are often encouraged to become the child's guardian – ostensibly so that they can continue to participate in medical and educational decisions for the child.

In both circumstances, other less restrictive options are available.

In the U.S., creating a power of attorney for health care or a power of attorney for financial matters is a better solution much of the time. These are contracts between the person with a disability and someone they trust – and choose themselves – to help advise them, or to make decisions if they are unable to. The person with a disability still keeps the right to make decisions in other areas of his or her life.

In another model, known as "supported decision-making," the person with a disability chooses a team of people to help her with decisions, and who have signed up to be available for advice and assistance. In Hatch's case, the judge was persuaded that this was the model to move toward. He recognized that Hatch should be able to choose who she lives with, who should advise her, and what she does with her life – but, like all of us, she would benefit from a support system to help with major decisions.  Talbert and Morris will have guardianship of Hatch for one year – after which they will move to the supported decision-making model.

Supported decision making and providing powers of attorney are the options we should look to first – rather than reflexively choosing guardianship and stripping a person of every civil liberty.

We still know too little about the full picture of guardianship in the U.S. We don't know how many people are under guardianship, much less the distribution between younger people with disabilities and seniors. Most importantly, we don't know how many guardians are respectful of their wards' wishes, and how many are callous, or downright abusive. What we do know is that it is the most draconian deprivation of an individual's rights in civil society.

So, what should we do?

We should have more, and clearer, conversations about guardianship that include the voices of those who are most affected by guardianship's grasp. We need to explore and further develop the best models to support individuals with disabilities in their decision-making. And, we need to be cautious when anyone suggests guardianship for our children, our parents or ourselves.

Most of all, we must recognize that disability should not be an excuse to deprive someone of her basic civil liberties.

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Anonymous

I can say from personal experience that, here in MA anyway legal guardianship isn't even required to strip your child of their liberty even if said "child" is 29yo and acused of being "mentally ill". The Section 12 ensures that an emotionally aabusive/controlling parent can simply throw out a word like "suicidal" or "unstable" and a cop, with no conduct guidelines whatsoever in the statute has full discretion to assault, cuff, berate, then toss one in a cruiser. Identical to arresting a criminal suspect. Resisting this crimeless arrest results in actual charges and a real arrest. Worst of all the psych eval that was the sole reason for detainment is no longer required. In short, legal guardianship is not even required to take someone's freedom. 500 years ago the magic word was "witch". Today? Mentally ill.

Diane Engster, JD

I agree with the anonymous statement. While guardianship, indeed, can strip a person of the most basic rights, so can civil commitment without even a court hearing in some states. And the laws of civil commitment are becoming more and more restrictive based on less and less due process. Back in the 1960's and 1970's, the ACLU was at the forefront at fighting for our rights to resist the injustice of civil commtment.

Today, the ACLU seems to ever hardly take notice and instead represents and champions more popular but also important causes like the rights of lgbt folks and immigrants. Everyone deserves basic human rights and justice. Since, I've been a long time member of the ACLU, I hope that the ACLU will get back in the business of representing people with serious mental impairments. There certainly are many avenues to do this. I might suggest fighting against putting the names of innocent, non-criminal people in the national criminal database, or compromising our privacy rights in records of medical treatment, or stopping the surveillance of young adults in colleges and universities by threat assessment teams.

Anonymous

would like to ask why senior citizens specially womans are being targeted to use as target for drones...... really looking forward to the answer by the way,.,, no criminal or mental issues only a widow somebody put one me a cross on my right hand inside y skin wihout remorse to follow me by the way.... ucla... and usc and others are targeting me.. by the way videos proven it and medical doctors... so why is targeting humans..... Lancaster ca....??

Anonymous

That's disgusting. And so is what the politician said about SNAP being "a waste of spending money" bc he "saw two people who weren't physically disabled using food stamps."

I didn't know you had to be SHOWing your disability at all times, and even when you do show it, they use THAT against you.

I know, b/c I have a disability that stays hidden unless I limp from it, which I don't do anymore bc the T.E.N.S unit stopped the limping.

And MY disability came from being shot by a gun - a gun: that thing that all the politicians don't seem to care WHO can have access to one, even if it's someone like George Zimmerman.

AnonymousArizona

Civil commitment and forced treatment: Yes, Twice in 2 years I've been removed from my home based on calls from other people. This has been in 2 different states because I live in a bordering community, and moved across town 5 miles-from CA to AZ. The first call was my sister, who couldn't reach me by phone ONE day, and called the sheriff to check on me. The other was frome a neighbor who knew I was in pain recovering from an accident a month before, but she misinterpreted a situation, and apparently didn't feel the need to talk me before calling 911 and declaring I was trying to kill myself by overdosing, which was ridiculous.
Nonetheless, as the writers correctly point out, not only did the sheriff disregard my demands to get of my house (after waking up to see 2 sheriffs in my living room), they took me away against my protests.
In both cases, they stated I was "a danger to myself" and ALSO a "danger to others" because I was angry about being hauled away against my will for ridiculous unfounded claims. I was held overnight, demanded to give blood and urine samples (NOT LEGAL), and then sent home once the Psychiatrist realizes this was a tragic mistatke.
There it remains in my records!! I plan to send a summary to ACLU, requesting they take my case. Please, ACLU, before this happens to me again!

Horrified Witness

I've watched powerless as someone I know was handed over in a half hour hearing to a guardian who stopped her from making all calls, visits or any other form of communication that wasn't pre-arranged by the guardian and monitored, had her transferred to some facility whose location the guardian won't reveal, and bills the family $350/hr for these "services", such as setting up meetings with her in random diners. This has been going on for more than a year, with the total billed fees by this guardian up at around $100k so fa. My friend whispers to her mother and sister how much she hates and fears her guardian, but if they try to talk openly about how she is treated, how she feels, what kind of treatment she is getting, she is told that she isn't allowed to talk about any of that. I wouldn't believe that this kind of thing can happen so easily, but it can and it does. And the state legal services, who are the ones who are supposed to prevent this sort of thing, are the ones who pushed her to request a guardian in order to get out of the hospital she had been kept at against her will for 6 months. The "mental health" cabal is out of control in this country. All it takes is for two psychiatrists to say you have a problem to the right judge and all rights can be stripped from you in next to no time. They can lock you up, keep you from seeing or talking to your family and friends, and force you to take powerful drugs which can destroy your brain and your body. And on top of all that, make you, the government, and your family pay a ton of money for your abuse.

Anonymous

horrified WITNESS? IF she is truly being held against her will and someone witnesed her statements--tell them to go the local law enforcement accompanied by another to witness and the media gets that story as well-- and make THAT STATEMENT and get a report complete with docket number etc and go to the fbi etc etc THE COURTS WILL NOT HELP HERE.
her direct family or whomever WAS responsible for her needs to find a for real civil rights atty and file complaint with the federal courts.
go to the websites for HOW TO SUE CPS IN FEDERAL COURT TO GET AN IDEA on what has to get done BUT THE MAIN PROBLEM REMAINS finding the attorney WHO STATES DIRECTLY on their website or WILL RESPOND THAT YES THEY DO WORK ALONG Civil Rights Litigation - 42 USC Sec. 1983--4TH AND 14TH AMENDMENT.

this aclu is NOT CONCERNED with mental health issues,court initiated guardianships,PEOPLE BEING LIED TO ON GUARDIANSHIPS,impaired SIGINING CONSENTS and other legal documents,held against their will even WHEN CLEARED for discharge- and is concerned with some ALLEGED RIGHTS OF ILLEGAL ENTRANTS and other assorted BS.
ILLEGALS ARE PRECIOUS TO THEM AND ALL THE OTHER civil rights groups and politicians.
AMERICANS DON'T MATTER UNLESS it's the one in 500,000 that's so offended by a cross resulting IN CROSSES REMOVED-- and mentally impaired DO NOT MATTER at all anywhere and with ANY PRO BONO BUNCH.

and definitely more than myself BELIEVE YOUR STORY.
fight back and GET LOUD ABOUT IT.

Anonymous

and why ISN'T THEEEEEEE ALMIGHTY ACLU even investigating ?
ooh yeah,this is an AMERICAN,not an illegal claiming some bs on being INCARCERATED and denied his familial association.

Anonymous

only because I admitted to having an on going depression, anxiety and adhd diagnosis and my husband a non symptomatic ptsd diagnosis from 08 the state decided to take and keep our son even tho nothing added up in their reports, we saw them no more than 5 times and they filed an order for emergency removal saying they thought I was being held hostage. My husband was born in India and they stated I complained of cultural differences (later admitted I did not say that) then this one worker grew a soul and admitted they did NOT investigate and we did not refuse services filed untrue information on the petition and in reports that lead to taking the 2 1/2 yr old angel we dreamt of nearly 10 years. we have been married 13 but my mom said she "would get my son one way or the other and there was no judge in white bread west Michigan that would give my husband custody." she set my husband up stating he was a racist towards our child (not even dignifying that) and oddly enough she reported he would teach our son to say not white like grandma yucky baby. This man served 5 honorable years in the US Army as a Medic and at no point before or after had he ever expressed or even I would be willing to bet thought , a racist thing about anyone in all his life.
to beat all, we both filed motions that had been denied and the judge said it was because there was nothing new. I told my husband, "he knew what he was doing was against the law and he just didn't care. It was not news to him that we are entitled to self evident truths on life liberty and the persuit of happiness etc, but he just didn't think we should have them for whatever reason. Rights allowing us to love and raise our own children.
Again cps admitted to lying on the paperwork and petitions that got him removed. they admitted we did not get a due process and didn't feel the need to investigate, when questioned on the stand. No threat to my son was ever there at home or thru us. his VA dr sent a letter stating his ptsd was not a threat. our family tree dates back to the 1600 and a long line of folks that fought for these freedoms or the idea of. It just is not right that our son has been gone for 4 months in care of strangers contrary to what their own psyc dr said, above average parenting skills, well rounded sort of conflict resolution and interpersonal effectiveness skills. etc.
aprilbhayana@live.com
They never even told us what we did wrong, just that we had some discord in our marriage......
ok, but our son was reported to not eating, fighting sleep, bursting out in crying fits repeating "mommy get you out" for no less than 3 days before he was placed and the cps worker wrote to me saying "your son is a picky eater" he also was rushed to the er the night they took him because of his viral lung infection and 103 temp no one but the workers who took him from me knew. Yet the same worker testified the day after they took him )9-28-13) that "she told me he was sick but when we got there, he was running around, playing, interacting like a happy little kid" we got the er bill a month or so later from the foster agency. who despite hearing 1st hand the cps worker say they did not find what they reported they found all that and the rest, "has to stick to office policy and design a treatment plan based on the petition to the court"
odd too how folks mentioned that its not like them to let you have unsupervised visits in the home and tell you "absolutely no concern leaving him hear with either one of you" so since they are, we should be happy.
My son was kidnapped and I couldn't even call the police. Also we both have to work on our ability to cope with the situation. You cope with people lying about you to your face, on paper, and to the system in order to steal your only child right from your arms. NON OFFENDING PARENTS. proven NO THREAT to his safety was is or would be. the judge in west mi just says, denied.
k really going this time. have a good holiday all.
ok sorry for throwing up over the page, I finally wrote to the news here earlier to see what they think of the lack of grounds and legal right they had to even take him to begin with.

Anonymous/Arizona

Just returned to read the additional comments, and to say I've been very fearful lately of law enforcement coming to my door and having me committed. It's just too easy, and there are too many people willing to do this to someone like me. I feel for the rest of you, and feel like we need to band together for power somehow. I'm going to make a serious attempt to get the ACLU to help me with some kind of document or power of attorney to prevent cops from coming into my home, taking me in against my will, possibly to the ER again where I will be held down, insulted, forced to allow them to inspect my entire body, invasively procure blood and urine without my consent, possibly inject drugs, send me to an isolated mental hospital without anyone knowing where I am. IT'S GOT TO STOP!!

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