August 17, 2023
Source: Washington Post
A decade after a Virginia woman with Down syndrome fought for her right to make her own decisions, people are still losing that right too easily
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When Jonathan Martinis stands in front of judges at conferences and speaks to them about the power they hold in guardianship and conservatorship cases, he always gives them the same advice.
“The most important question to ask before you sign off on putting a person into guardianship or conservatorship is: What else have you tried?” he tells them.
Guardianships and conservatorships — terms that can differ in meaning by state but involve removing a person’s right to make decisions — are too often put in place as a default, Martinis told me on a recent evening. He said it is the responsibility of judges to make sure they are needed, even when a person is willing to sign away that right.
“You shouldn’t be able to voluntarily admit you can’t make decisions, because that’s a decision,” he said. “There should be a backstop to that. There should be a judge who says, ‘Wait a second, how do we know? How do we know this isn’t a devil’s bargain? How do we know this isn’t an overreaction? How do we know that this family, let’s give them the best of intentions, wasn’t told they have to do this? Maybe the family got advice. How do we know it was good advice?’”
I called Martinis after learning that Michael Oher, the former Baltimore Ravens player whose life inspired the Oscar-winning film “The Blind Side,” filed a petition asking a judge to terminate a conservatorship that was initiated when he was 18. Oher is now 37.
In recent days, Oher’s case has ignited impassioned conversations across the country about conservatorship, just as Britney Spears’s contentious conservatorship did a few years ago. But Martinis has long been trying to get people to pay attention to the issue. A decade ago, he made me pay attention to it.
At the time, he was an attorney representing Jenny Hatch, a Virginia woman with Down syndrome who fought for the right to choose how she wanted to live. At 29, Hatch was under the temporary guardianship of her parents, living in a group home where she didn’t want to stay. She wanted to work at a thrift store and live with her friends who owned it. Hatch’s attorneys argued at the time that she needed support when it came to making some decisions, not to lose her right to make any.
Ten years ago this month, a judge ruled in Hatch’s favor and she became an immediate champion for disability rights. At the time, not a single state recognized “supported decision-making” as an alternative to guardianship, Martinis said. Now, most states have laws that do.
“Has the conversation advanced? Absolutely,” Martinis said. “Do we still have far to go? Absolutely.”
Oher’s case shows that. Oher alleges in the court filing that he only recently learned that Sean and Leigh Anne Tuohy, the White couple who offered the Black teenager a home when he didn’t have a stable one, convinced him to sign papers he believed were part of an adoption process but in reality made the couple his conservators. The filing goes on to accuse the couple of financially profiting off him, claims the Tuohys have denied. The truth about the money will undoubtedly emerge as the case moves forward, but what remains undisputed is that Oher was placed under a conservatorship — one that Sean Tuohy told the Daily Memphian he would be willing to end.
There are many concerning aspects of Oher’s claims, but the most troubling one is how easily he lost his rights. That should leave us questioning how many other people have been stripped of the power to make critical decisions about their lives, without any authority making sure that was necessary.
Five years ago, Morgan K. Whitlatch was the legal director for Quality Trust for Individuals with Disabilities and represented an 87-year-old woman who became the first senior citizen in D.C. to convince a court to terminate a guardianship placed on her in favor of supported decision-making. Whitlatch is now the director of supported decision-making initiatives at the Center for Public Representation.
“I am deeply troubled by Mr. Oher’s case,” Whitlatch told me. “While I do not know the details outside his petition to terminate his conservatorship and the limited court filings available online, his allegations certainly highlight some of the very problems with guardianship and conservatorship systems that disability rights advocates have been pointing to for years — from the unchecked and wide-flung authority conservators can possess, to the lack of effective legal representation for respondents to ensure they can fully understand and participate in the court process, to the enduring, broad, and negative impact such proceedings can have on the personal rights of the people made subject to them.”
She noted the lack of justification in the court order for removing “all of Mr. Oher’s legal rights to make his own medical, educational, and contract decisions — a huge infringement of Mr. Oher’s personhood.”
“The order contains no finding — by clear convincing evidence or otherwise — that Mr. Oher’s is incapable of making his own decisions without a conservator,” she said.
Martinis, who is now the senior director for law and policy at Syracuse University’s Burton Blatt Institute, has served as an expert witness in guardianship and conservatorship cases across the country and written a book on supported decision-making.
He said Oher’s claim that he didn’t know he was under conservatorship until recently doesn’t surprise him, because he has represented other people in similar situations. Martinis said he and another person plan to publish a paper soon about “ghost guardianships.” For it, they examined every guardianship case filed in Wyoming in 2021 and found 20 cases in which a person was put into guardianship without ever receiving notice that there was a case against them. That means they lost rights they didn’t even know were at stake.
I asked Martinis how many people have guardians or conservators who don’t need them, and he said that’s a question no one can answer. He said until people are no longer placed into those arrangements as a default, and judges make sure of that by asking the correct questions, there is no way to know how many people have unnecessarily lost their rights.
“And that uncertainty is terrifying,” he said “Because if it can happen to Michael Oher, it can happen to me. It can happen to you.”
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