Restoring Decision-Making Rights
Guardianship, by its nature, restricts the rights and autonomy of individuals deemed by the courts as unable to make life-care decisions on their own. But what if that capacity to make those decisions changes? How does restoration of rights happen for individuals under court-appointed guardianship?
Some individuals do fare best under guardianship. In these instances, the supportive services provided under guardianship can help protect them from exploitation and abuse. This is true when they do not have the capacity to understand the implications of decisions regarding their safety, personal care and finances.
But for some individuals, less restrictive supportive services can help them avoid guardianship and retain their decision-making autonomy. This can be a changing situation; for example, if someone is placed in guardianship for mental health reasons and later gains the capacity for self-care, either through medication or other treatment, guardianship might no longer be needed. Or if an individual suffers a brain injury that heals, restoration of rights would be appropriate and necessary. Supportive services can help individuals maintain civil liberties — partially or wholly restoring rights — so individuals can make their own decisions, providing a means of living more independently.
The Basics – Understanding the Terminology of Decision-Making
Guardianship assumes substitute decision-making power for an individual who the court determines is unable to understand the nature and consequences of personal and financial decisions. A limited guardianship might assume substitute decision-making for certain kinds of decisions and employ supported decision-making for others. This is true when a person under guardianship may have capacity to make some typically limited decisions when supports are in place to help them more fully understand the implications of the decision. For instance, the individual may be able to comprehend and make life decisions — like where to live or how to have healthy relationships — and might still need a conservatorship to manage financial affairs.
Supported Decision-Making ensures an individual retains the right to make their own personal or financial decisions with the support of others. Supported decision-making looks different for each person and can include informal and formal supports.
Petitioning for Restoration of Rights
For years, common practice was to implement guardianship for many people with disabilities, those with significant mental health challenges, and older adults with impaired functioning. The intent of the law was to protect individuals, with the emphasis on keeping them safe. While there is a system in place to petition for restoration of rights, it has often been difficult for individuals to get their rights restored.
The restoration process begins with a petition to the court — which can be filed at any time — by an individual, their guardian, or another interested family member or friend. After the petition is filed, a hearing is set where:
- The individual must prove to the court that they are capable of making personal care decisions. This may include testimony from the person under guardianship, testimony from other people in that individual’s life, and possibly testimony of medical determination by a doctor.
- The presiding judge decides if the evidence presented proves an individual has restored functioning enough to make personal care decisions on their own. If so, the guardianship is ended, and the person is “restored” to capacity with decision-making rights.
Historical challenges in reversing a court-ordered guardianship can stem from the complexity of cases before the court. It takes a significant amount of time from the Guardian, and other members of the individual’s care and support team, to make a decision with someone rather than decide for them. Finding the balance between fulfilling court-ordered duties of a Guardian and supporting an individual’s autonomy while allowing a certain amount of growth-related risk requires time and careful attention.
A Real-Life Restoration Story
Theresa is an excellent example of someone who, with their guardian’s support, successfully worked to have her rights restored.
When the court assigned Lutheran Social Service of Minnesota to be Theresa’s guardian, Theresa was experiencing significant mental health and behavior challenges, an outcome of traumatic experiences earlier in her life.
Theresa always had a strong desire to become independent. She realized her challenges were significant enough that she needed to work on her mental health and receive supports. She and Darla Brede, an LSS guardian and conservator who worked with Theresa, created a plan for her to live independently and eventually have her rights restored. “We made a list of things I needed to do to get to where I wanted to be and show the court that I could be my own guardian,” Theresa said. “I also went to therapy to work on my struggles.”
Theresa worked her plan, but her first petition for restoration was unsuccessful. “The judge said I still needed 24-hour care,” she said.
With continued support from her care team and Darla, she kept working on her plan goals until her efforts paid off. “On my own, I found an apartment, filled out the application, got approved, and moved in last summer,” she said. Theresa started making her own medical appointments, setting up meetings with her team by herself, and managing her own finances.
“Theresa completely turned things around,” Darla said. “She accomplished everything on her list and worked with everybody on the team to make this happen. One of her greatest strengths is her determination.”
After accomplishing these things, Theresa applied again for restoration of her rights. She told Darla, “I think I’m ready.” Darla said to her, “I know you are ready. You’ve got everything in place.” This time, the court granted Theresa’s request.
Building trust with Theresa was an essential component of Darla’s support for her. Belief in Theresa was also a crucial component of Darla’s role as guardian. “We wanted Theresa to know, ‘You can do this. It is possible to move into your own apartment, get a job, and do all kinds of things. We're here to walk alongside you and support you so you can reach your goals.’”
That belief in Theresa and others whom Darla has supported includes an expectation that they will make mistakes. “I tell everyone I support, ‘You don’t have to be perfect,’” Darla said. “If they slip up, we move on from there. We’re not going to hold it against them. We’re all human.”
“I didn’t like Darla at first,” Theresa said. “But I realized she was different from others I’d known. She treated me as an adult. She didn’t constantly check in on me. When I made a mistake, she would say, ‘This is how we can fix it next time.’”
Theresa continues to move forward. She still sees a support person once a week. She is married now. She continues to work with her therapist on mental health challenges. With support, she is creating a plan to get involved in regular activities in the community and setting up a savings account for a future home purchase.
Theresa said, “My social worker recently said to me, ‘You are doing so well; you don’t need me anymore.’ I know I will need support from others for a while yet. But I know I rely on that support much less than I used to. I’m so happy that I can make my own decisions now.”
LSS Supported Decision-Making Services
LSS is the largest provider of guardianship services in Minnesota, providing guardianship and conservatorship services for 35 years. Our guardianship services have evolved since we first began offering them in 1988.
In addition to guardianship and conservatorship services, LSS offers Power of Attorney and Health Care Agent services for people who might need or choose support in managing legal, financial or medical decisions. In this capacity, LSS can act as attorney-in-fact and/or health care proxy.
We believe, and always have, in giving people as much autonomy as possible.
LSS is committed to forward-thinking, relevant and person-centered services. Our goal is to support each individual to their fullest potential. We have advocated for and supported individuals we serve to achieve restoration of their rights and an end to their guardianship. We hold the hope for each individual we serve that they can attain a restoration of their rights. Twenty-two individuals receiving LSS guardianship or conservatorship services had their rights fully restored in 2022.
LSS understands the gravity of responsibility that comes with handling life decisions for others. We are committed to honoring the dignity of each person and including each individual we serve in their care plan as much as possible.
- LSS provides a range of decision-making services so individuals get the support they need at the level that meets their needs.
- We continue to pursue the least restrictive options for individuals we serve.
- Wherever possible, we advocate for and fully support the full restoration of rights for those we serve who are under guardianship or conservatorship.