San Diego Law Review

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A guardianship or nothing. One option completely strips a person of his or her rights; the other option provides no protection. Both are extreme options; both are the only legal options in a majority of United States jurisdictions. Only providing legal recognition for two options aggravates the problem of granting unnecessary or overly broad guardianships for people with disabilities. Inappropriately granted guardianships consequently leads to violations of the Americans with Disabilities Act, individuals’ constitutional rights, and individuals’ human rights. However, viable intermediate options now exist that can be implemented in lieu of the two extreme options. Alternatives to guardianships simultaneously provide support for the individual, while maintaining as many rights as possible. One such example of a viable alternative is Supported Decision-Making (SDM). The first step the United States could take towards promoting an autonomy-focused system is ratifying the Convention on the Rights of Persons with Disabilities, which the United States signed in 2009 but has yet to ratify. Ratifying this document would require states to legally recognizes SDM-type models. In addition to providing legal recognition for guardianship alternatives, state legal systems should alter mental capacity determination framework to further avoid rights-capturing legal systems. But, should there be push back to ratifying the CRPD and providing legal recognition for alternatives, there is a more attainable solution: require school systems to provide students and families with information about every available support option. School systems have a unique role in an individual’s pathway to autonomy because the school is present during the student’s “transition” years. School systems can stop the problem before it even occurs. Support needs are not one-size-fits-all models, and states must work towards filling in the gap between granting a guardianship or nothing at all. Individuals should not be completely stripped of their rights simply because they have been categorically deemed “incapacitated.”

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