A National Perspective on Guardianship and Decisional Support
From: Heather Connors, Ph.D., and Traci Cucinotta, MSW, MBE
To: Conference Participants and Institute Subscribers Report Date: January 19, 2018
Event Date: December 6, 2017
“A National Perspective on Guardianship and Decisional Support,” co-sponsored by the Massachusetts Guardianship Policy Institute and the National Association of Social Workers, welcomed over 300 participants from elder services agencies, Councils on Aging, nursing facilities, hospitals, law firms and social service agencies through Massachusetts to a day-long event at Morris Auditorium, in the Federal Reserve Bank Building in Boston, on December 6, 2017.
The Conference delivered cutting-edge expertise on assessing capacity, ethical end- of-life decision-making, national trends in public guardianship, alternatives to guardianship, and judges’ perspectives on guardianship in Massachusetts. The last hour provided a status report on efforts in Massachusetts to establish an Office of Public Guardian. Continuing Education Units (CEUs) for the Conference were offered to Social Workers, Nurses, Care Managers and Guardians.
Review of Presentations
The day began with a warm welcome from former Massachusetts Attorney General Scott Harshbarger, who tied the event to the 30-year history of advocacy for a public guardian in Massachusetts. (The last Conference of similar scope in Massachusetts was the Guardianship Conference sponsored by his Office in 1996, during his second term as Attorney General.) Mr. Harshbarger noted how views of guardianship, and the perceived role of an Office of Public Guardian, have changed over the past two decades. Today the proposed Office is viewed not just as an overseer of services, but also as a crucible for evolving public policy to respond to new perspectives on how to meet decisional support needs, especially through the use of volunteers and through alternatives to guardianship.
Mr. Harshbarger was followed by Erica Wood, JD, Assistant Director of the American Bar Association Commission on Law and Aging, who introduced a national perspective on guardianship policy. Ms. Wood described the growing number of state Working Interdisciplinary Networks of Guardianship Stakeholders (“WINGS”) chapters across the country, and recognized the work of Massachusetts advocates as a de facto WINGS chapter. Her discussion of proposals for a new Uniform Adult Guardianship, Conservatorship and Other Protective Arrangements Act provided the audience with room to consider the weaknesses that are inherent in current guardianship law, and the important reasons for strengthening those laws.
Participants then were invited to consider guardianship at a more micro level, through a presentation by one of the nation’s leading experts on decisional capacity, Jennifer Moye, Ph.D., Professor of Psychology at Harvard Medical School and Director of Education and Evaluation for the New England Geriatric Research, Education and Clinical Center at the VA Medical Centers in Boston and Bedford. Dr. Moye offered an interactive, high level primer on the concept of decisional capacity, using cases to demonstrate types of capacity and when a person may need decisional support.
Dr. Moye was followed by brief comments from Hon. Paul Brodeur, State Representative from Melrose, who provided an update on the bill that he filed in the Massachusetts House in January, 2017, to establish an Office of Public Guardian for Massachusetts. Rep. Brodeur was generous in his praise for the work performed by participants in the Conference, and encouraged participants to continue thinking broadly and deeply about guardianship issues, even as the work continues toward passage of his Public Guardianship bill (discussed below).
Rep. Brodeur ended his comments by introducing Hon. Paula Carey, Chief Justice of the Massachusetts Trial Court. Chief Justice Carey gave participants a rare look at how judges hear and decide the cases that come before them. Drawing upon her years of experience as a former Probate and Family Court Judge, as well as her experience running the Trial Court for the past ten years, Chief Justice Carey grounded the entire day’s curriculum with a realistic view-from-the-bench, which focused less on what should happen than on what does happen when capacity issues come before the court. Offering examples from actual cases, Chief Justice Carey illustrated why neither guardianship appointments nor guardianship decision-making is ever black-and-white.
Our keynote speaker was nationally-recognized bioethicist Vicki Kind, who further developed the theme of how decisions for others can be made ethically within the bounds of guardianship law. Her focus was on end-of-life decisions, one of the most acute challenges for decisional support. Drawing upon her research as an ethicist and her experience with decision-making in complex medical situations, Ms. Kind provided a framework for considering the ethics of such decisions, and again offered case examples to help participants think through the issues.
A shift in focus was introduced by Robert Fleishner, JD, of the Center for Public Representation in Northampton, Massachusetts, who presented the Supported Decision Making model (“SDM”) as an alternative to guardianship. SDM is a non-judicial form of decisional support that recognizes, rather than displaces, a person’s autonomy and legal capacity, relying instead upon a voluntary agreement among the individual and a group of supporters – selected by the individual – to help with important decisions when needed. Mr. Fleishner piloted a program in Western Massachusetts that helped eight individuals under guardianship to reassert self-agency through SDM, one of whom successfully petitioned after about a year to terminate his guardianship. This model demonstrates that less-restrictive alternatives to guardianship can provide necessary decisional support while maximizing autonomy.
Last on the program was a panel of members of the Massachusetts Guardianship Policy Institute, who discussed Rep. Brodeur’s proposed Public Guardianship legislation and highlighted the research, advocacy and training programs that are in development at the Institute. Rep. Brodeur’s bill (H3027) has a matching bill in the Senate (S1177) that is sponsored by Senator Cynthia Creem. These bills, if enacted, would create an Office of Adult Guardianship and Decisional Support, which would oversee the work of a private entity – the Public Guardian – to provide decisional support services in Massachusetts. A notable feature of the legislative proposal is that the aims of the Office would include developing and supporting alternatives to guardianship, such as SDM, as well as education for the public about options and procedures for responding appropriately to decisional support needs among friends and loved ones.
Conclusions & Next Steps
Feedback about the Conference was overwhelmingly positive. Participants asked informed and thoughtful questions throughout the day, and most reported in their Evaluations that the sessions provided useful and topical information.
A number of people wished that there had been more time for questions. In response, the Institute now is organizing a “Guardianship Listening Tour” for the first half of 2018. The Tour will stop in more than two dozen locations around the Commonwealth, providing time for smaller groups in these communities to interact in in a seminar-like setting. Because it will include an educational component, participants will be able to earn an additional CEU for the one-hour sessions. Building upon the conversation and energy that were evident at the Conference, we hope through the Tour to hear new ideas and directions for best practices in all forms of decisional support, including guardianship. Stay tuned for details in the weeks to come.