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    Disability and Guardianship Project
 

Access to Advocacy Outreach Project

Investigative Reporting:
Initial Focus on California

Our interest in adult guardianship proceedings involving people with intellectual and developmental disabilities started in 2012.  Three cases with serious civil rights violations caused us to investigate for possible systemic flaws in California's limited conservatorship system.  Our extensive research revealed a pattern and practice of constitutional and statutory violations of the constitutional rights of respondents with disabilities.

We published many reports on various types of deficiencies and recommended that state and local officials and agencies enact needed reforms.  Our requests were generally unanswered.

When our research discovered a federal basis for promoting reforms -- under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 -- we filed complaints with the United States Department of Justice against state and local public entities in California.

We believe that the most promising method for achieving systemic reform of guardianship and conservatorship systems is through the mandatory appointment of competent counsel to represent respondents in these cases.  A cadre of such attorneys in each state will push the system to reform the other aspects that deny respondents access to justice.

Of the many reports we have published on guardianship reform, there are three that we especially recommend to reform advocates.  The White Paper to the U.S. Department of Justice explains in great detail how the ADA requires courts to appoint attorneys in each case and offers specific training and performance standards for such attorneys.  Our proposals to the Judicial Council in California (which are now under review for possible adoption) offer a framework for new court rules and standards.  The results of an audit of court-appointed attorneys in Los Angeles show just how compelling the need for training and performance standards are.  The deficiencies we discovered are alarming.

We invite you to browse through the list of our publications (see link below) to see the path we have taken during the investigative stage of our work.  We also suggest that you go to our "what's new" page to learn what we have been doing to stimulate guardianship reform.

We have decided to move from investigating deficiencies and developing proposals for reform, to an outreach phase in which we are contacting the supreme court and state bar association in each state.  We are reminding these courts of their responsibilities under Title II of the ADA and are encouraging the state bar associations to support reform efforts.
 

ADA and Guardianship Reform:
Outreach to All 50 States

The Americans with Disabilities Act was passed by Congress some 25 years ago.  The ADA builds on the mandates of the Rehabilitation Act of 1973.

Title II of the ADA applies to public entities, including state and local courts.  Section 504 of the Rehabilitation Act applies to courts that receive federal funding for any of their programs.

The ADA requires public entities to ensure that people with disabilities have access to their services.  The service provided by a court is the administration of justice.  Title II and Section 504 require courts to ensure that people with disabilities have access to justice.  Modifications and accommodations must be provided to ensure that people with disabilities can have meaningful participation in the program or service.

Guardianship respondents generally have cognitive and communication disabilities that prevent them participating in their cases in a meaningful way without appropriate modifications and accommodations.  One appropriate accommodation -- perhaps the only one that will enable them to defend their rights from encroachment -- is the appointment of an attorney.  Such an attorney can make sure that constitutional protections of due process are followed and that statutory requirements are met.  Without an attorney, a guardianship respondent does not have access to justice.

Courts are accustomed to modifications and accommodations for litigants using wheelchairs or those who are Deaf or hard of hearing.  They are not used to devising methods to accommodate the needs of litigants with intellectual or developmental disabilities.  The time has come for this to change.  Having been in effect for 25 years and counting, the ADA must be applied by the courts to accommodate the needs of guardianship respondents with cognitive and communication disabilities. 

Thirty states require the appointment of counsel for guardianship respondents in all cases.  In 20 states, the appointment of counsel is not required.  We believe these 20 states are committing per se violations of the ADA and Section 504.  In all but one of the other 30 states, there are no training and performance standards for the court-appointed attorneys.  Access to justice for these litigants is denied if counsel's performance is deficient.  We believe that leaving it to chance as to whether the attorneys are providing effective advocacy is a violation of the ADA and Section 504.

To cure these violations, we are asking the supreme court in every state to appoint and monitor competent counsel as required by the ADA and Section 504.  They should take pro-active measures to fill the access-to-justice gap.

 

New Phase: Filing Formal Complaints

The first phase of the outreach project involved sending informational letters to several state supreme courts about the denial of access to justice for people with intellectual and developmental disabilities in guardianship proceedings.  We focused primarily on deficient legal advocacy services for guardianship respondents with court-appointed attorneys.  Because they are court-appointed, the Supreme Court of a state bears even more responsibility for ensuring ADA-compliant legal services than it would for privately retained advocacy attorneys.  Although the first phase resulted in a few replies from supreme courts or state bar associations, no meaningful changes occurred in those states.

Phase two of our outreach project will involve the filing of formal letters of complaint to state supreme courts about ADA noncompliant guardianship systems over which the courts have administrative oversight and supervision responsibilities.  The first such letter was sent on September 25, 2017 to the Supreme Court of Missouri.  Letters of complaint to other state supreme courts will follow in the coming weeks and months.
 

California:  
Supreme Court, Chief Justice,
Response by Court, Reply to Court
State Bar, State Bar #2, State Bar #3

Washington:
Supreme Court: Letter 1, Letter 2
State Bar, Essay 1, Essay 2
Report to the Supreme Court
Letter from Chief Justice

Nevada:
Supreme Court, State Bar

Oregon:
Supreme Court, State Bar
Response of Supreme Court

South Dakota:
Supreme Court, State Bar

Utah:
Judicial Council:
Letter 1  Letter 2

Ohio:
Supreme Court, State Bar
Response by State Bar

Michigan:
Supreme Court, State Bar
Response of Supreme Court
Reply by Spectrum Institute

Indiana:
Supreme Court, State Bar

Colorado:
Supreme Court, State Bar

Pennsylvania:
Supreme Court, State Bar
Response of Supreme Court

 


Follow Up Letters to
Courts and Bar Associations

 

Letters to Various Associations

National Council on Disability

American Judges Association

 

Conference of State
Court Administrators

Conference of Chief Justices

National Center for State Courts

Uniform Law Commission
Letter 1 / Letter 2

 

What's New

 Publications

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Thomas F. Coleman
Executive Director

Project Advisors