Staci

Q&A: Guardianship, Supported Decision-Making, and Powers of Attorney in Maine

Posted on January 09, 2017

by Staci K. Converse, Esq.

Some of the most frequently-asked questions of attorneys and advocates who work with adults with developmental disabilities involve decision-making.  These include questions about guardianship, supported decision-making, and other tools to assist people in making decisions about their lives.

Historically, decision-making has been thought of as a linear process that relies on two conceptual flaws.

  1. That there is a right and a wrong choice to every decision.
  2. That people can either make the right decision or they cannot. 


Under this paradigm, substitute decision-making was thought of as the answer for people who needed assistance with decision-making.  Frequently, this was done through the guardianship process.

More recently, decision-making has come to be thought of as a skill that can be learned and improved upon over time.  The belief is that if a person has the ability to participate in any way in the decision-making process, there is a way to accommodate that person. Under this paradigm, supported decision-making is the answer for people who need assistance in making decisions.


GUARDIANSHIP

1. What is guardianship?

A. Guardianship is the result of formal judicial process, which gives someone’s decision-making authority to someone else. It begins when someone petitions for guardianship over someone else. After a hearing, the judge will issue an order establishing that guardianship is not needed, a full guardianship is needed, or a limited guardianship is needed.

People under full guardianship experience a type of “civil death” because the person is stripped of legal capacity and have no right to make choices about their lives, such as marriage, healthcare, and finances.

2. What’s the difference between a full guardianship, a plenary guardianship, limited guardianship?

A. Under Maine law, generally, a full guardian has same decision making authority with his ward as a parent does to a minor child. A plenary guardianship means the same thing as a full guardianship.

In a limited guardianship, the guardianship order will specify the areas where a guardian has decision-making authority over the ward. A person under limited guardianship retains all legal and civil rights except those suspended by the order.  For example, a person may have a limited medical guardianship but retain all other decision-making authority such as where to live, how to spend their money, etc.

3. Can Mainers under guardianship vote?

A. Yes. Unless the court order specifies that a person under guardianship cannot vote, a person under even a full guardianship can vote.

4. Do any special rules about guardianship apply to people who receive services that are paid for by MaineCare?

A. Yes.  Under the Rights of Recipients of Mental Health Services and the Rights of Individuals with Intellectual Disabilities or Autism, guardians cannot delegate their authority to service providers who are paid through MaineCare.

For more information on guardianship in Maine, visit:

5. What is a power of attorney?

A. A power of attorney can be executed for any type of decision. It’s a contract granting co-existing decision-making power to someone else.  It is notarized and signed by both parties.  A power of attorney can be revoked at any time.

For more information on powers of attorney in Maine, visit:

 

SUPPORTED DECISION-MAKING

6. What is Supported Decision-Making?

A. Supported Decision-Making (SDM) is a tool that allows people to retain their decision-making capacity by choosing supports to help them make choices. A person using SDM selects trusted advisors, such as friends, family members, or professionals, to serve as supporters and tools, such as apps and assistive technology, to understand and communicate choices. The supporters agree to help the person understand, consider, and communicate decisions, giving the person the tools to make their own informed decisions.

7. Who uses Supported Decision-Making?

A. Everyone.  In one way or another, we all use Supported Decision-Making on a daily basis. None of us make decisions completely on our own.  Many of us consulting a mechanic about a car repair, talk to friends about picking a school, or talking to family about holiday plans.

Everyone’s decision-making process is going to look different and using Supported Decision-Making is individualized to each person.

For more information on Supported Decision-Making in Maine, including more answers to frequently asked questions, go to: http://www.supportmydecision.org.


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DISCLAIMER

This material is presented for educational purposes only. It does not take the place of legal advice in any specific situation, nor is it offered as such by the author. The material is intended to be timely as of the date written and/or originally presented. Due to the rapidly changing nature of the law, the information contained above may become outdated. It is the responsibility of any individual using or relying on this information to confirm its timeliness.

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