Sixteen years after the landmark Supreme Court decision Olmstead v. L.C. ex rel. Zimring, traditional models of services and supports for persons with disabilities and older adults are changing. So too are traditional legal tools designed to protect individuals such as guardianship. Although the Olmstead case dealt specifically with residential institutions, in recent years, the Americans with Disabilities Act’s (ADA) Integration Mandate and Olmstead decision have been used to redirect state funding for all types of segregation. This article examines how Olmstead principles of self- determination and integration in the community will also bring heightened focus to guardianship and other traditional substitute decision-making practices.
Other commenters have extolled the need for enhanced supported decision-making as an alternative to traditional guardianship and argued that the Integration Mandate of Title II of the ADA provides legal justification for such changes. This article builds upon such reasoning and picks up on the challenge of Professor Leslie Salzeman to develop creative ways of utilizing existing resources so as to build and expand emerging efforts to implement supported decision-making. Answers to this challenge require not only legal and practice changes to guardianship but also corresponding investment in services and supports that teach and encourage individuals (and their families, friends, and providers) how to actually make supported decisions.
Part I briefly examines the restrictive nature of guardianship laws and traces the rise of supported decision-making. It argues that supported decision-making reforms may result in better integration, unlike earlier guardianship reforms that have yet to significantly change the way guardianship is practiced.
Part II introduces person-centered concepts, such as the dignity of risk, that suggest self-determination is a fundamental characteristic of integration. It also discusses emerging (if not necessarily new) services such as peer mentoring, self-advocacy, and person-centered planning and how they, as opposed to other types of disability services, enable individuals with intellectual limitations to learn how to make decisions.
Part III argues that as supported decision-making reformers become successful in changing guardianship laws and practices, they must also focus on these person-centered services necessary to teach supportive decision-making skills. Recent changes to the regulation of Home and Community Based Services (HCBS) and the continuing evolution of Olmstead make this an especially important time to invest in services and supports that teach and promote decision-making and independence. Long-term care policy makers must do a better job at investing in best practices in these services, instead of simply the traditional “direct care” staff that is the dominant care tool Medicaid services.