July 7, 2017

Today the ACLU of Utah, the law firm of Latham & Watkins, and the ACLU Disability Rights Program filed a lawsuit demanding a right to counsel for anyone who is to be put under guardianship.

“Guardianship, like prison, takes away an individual’s freedoms – including the right to travel, to marry, to vote, to have relationships, and to choose one’s home. Aside from the death penalty, there is no greater deprivation of civil liberties,” explained Alfred Pfeiffer, partner at Latham & Watkins, LLP and Vice Chair of its global Litigation & Trial Department.

The lawsuit also challenges a 2016 Utah law, H.B. 101, that lowered legal counsel requirements for people with disabilities who are involved in guardianship disputes. The team of ACLU attorneys, with co-counsel Latham & Watkins LLP, is representing the Disability Law Center as a plaintiff, as well as two anonymous individual plaintiffs, Katherine C. and Anthony M.

Plaintiff Katherine C. has schizophrenia. She works at a local non-profit and lives with her parents because of her disability. Plaintiff Anthony M. has developmental and intellectual disabilities. He works as a school custodian and though he lives with his wife and son, he receives care and financial support from his parents. Both clients have expressed concerns about losing the right to make important medical and housing decisions for themselves, should their parents gain legal guardianship over them at some time in the future.

(NOTE: Plaintiffs wish to remain anonymous at this time, and will not be available for media interviews; other members of the disability community, however, are available for comment upon request).

“Once granted, guardianship is rarely if ever revoked,” said John Mejia, Legal Director of the ACLU of Utah. “When facing the loss of the right to make deeply personal decisions for themselves for the rest of their lives, people with disabilities need to have unfettered access to legal assistance.”

Enacted in 2016, H.B. 101, “Disabled Adult Guardianship Amendments,” states that under certain circumstances, a person with disabilities defending against a petition for guardianship brought by a parent isn’t required to have an attorney If the estate of the “prospective ward” is worth less than $20,000 and other requirements are met, H.B. 101 directs that the individual does not need an attorney to represent him or her.

“The Disability Law Center is a plaintiff in this suit because our members face very unique and serious threats to their liberty and independence when another person seeks legal guardianship over them,” said Aaron Kinikini, Legal Director of the Disability Law Center. “We want to ensure that our members have absolutely every legal protection they deserve when going through the guardianship process.”

The lawsuit names the State of Utah, the Utah Administrative Office of the Courts, and the Utah Judicial Council as defendants. The lawsuit asserts constitutional claims to due process and access to counsel (under U.S. Supreme Court’s Gideon v. Wainwright decision), as well as claims under the Americans with Disabilities Act and the Rehabilitation Act.

The complaint, along with a motion for a preliminary injunction halting the enforcement of H.B. 101, can be found at acluutah.org.

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