The Arc Experience Podcast
The Arc Experience Podcast
What does Britney Spears mean for WI? Addressing Overuse of Guardianship
If you haven't heard of the Britney Spears conservatorship case we'd be pretty surprised! It seems everyone is talking about conservatorship or guardianship these days as the case of the pop star's life hits the headlines. But while you may now know that Britney had very limited control over any decisions in her life, what may be new news is that tens of thousands of people in Wisconsin live with the same restrictions. Many people think guardianship is an over-used tool in Wisconsin and people with disabilities should have more choice and control in their lives. Listen to this podcast to hear from an attorney who is in the trenches helping Wisconsin people with disabilities have their guardianships reviewed and get their rights back.
Resources on Guardianship in Wisconsin:
https://wi-bpdd.org/index.php/supporteddecision-making/
https://arcwi.org/2018/04/13/supported-decision-making/
Guardianship Support Center: https://gwaar.org/guardianship-resources
Welcome to the arc experienced, featuring the stories of self advocates with disabilities and their families from around Wisconsin. Be inspired. Take action. And now for today's episode,
Speaker 2:Hello and welcome to the arc experience podcast. I'm your host Lisa pew from the arc Wisconsin today. We're talking about guardianship. Actually, a lot of people in the United States are talking about guardianship these days because of a pop star that you may have heard of Brittany Spears. Some of you have probably read in the news CNN TV that Spirit's career has been in the hands of legal guardians, um, including her father in an arrangement that a lot of people been calling conservatorship. Um, that's been her situation since 2008 when she had a, um, a public mental health crisis. And that's how that happened. We're going to talk more about that, but I think we're perhaps more interestingly to learn more about people who are under guardianship or conservatorship in Wisconsin, which is tens of thousands of people. So our guest today is an expert on that. George is ASCII is an attorney who works with families to help plan for their future of their child. With a disability is also a parent of an adult with a disability. And, um, he is really an expert on guardianship and supported decision-making. So thank you for joining us, George.
Speaker 3:Glad to be here. Hey
Speaker 2:George, can you give us a little bit of an overview of what you know is happening in that Brittany Spears case as of today, which is, uh, early October and I know things are changing all the time.
Speaker 3:Yeah, just this, this week, actually her father who earlier in the month, petitioned to resign from the conservatorship for his daughter, Brittany. In fact, it was granted by the court. And I think what that highlights is if you're put under guardianship or conservatorship, the court needs to be involved in all, most, all of the major decision-making. So you just can't resign and walk away as a guardian or as a, as a conservator, you need the court's approval to do that. And oftentimes when somebody resigns there's a need for a successor conservator or a successor guardian. So that's part of the process is finding somebody to take over that role unless you're resigning because the guardianship or the conservatorship is being terminated.
Speaker 2:Yeah. So we really, I guess we don't know what's going to happen in that specific case, but I think you're making the point like guardianship is a really significant process said takes away people's rights. Can you back us up a little bit and really explain kind of what an extreme process that really is and what it means for people?
Speaker 3:Yeah. Yes. Here in Wisconsin, you can start the guardianship process at seven. If your child is 17 and a half years old, the idea is to get the guardianship in place to protect your loved one. When they turn 18 and reached the age of majority where a number of rights invest in them and parents no longer have any kind of say in their child's life. Once they reach the age of majority of 18. So our system is set up that months before you turn 18, you can fill out the paperwork, which is called a petition for guardianship of the person in Wisconsin. We have two types of guardianship on your chapter 54, which is guardianship of the person or guardianship of the estate and guardianship of the estate deals with the money. And obviously guardianship of the person deals with the, with the individual themselves. And the forms are online. I know a number of parents who have filled out the forms themselves, gone into court and gotten appointed guardianship. Um, and basically they have almost complete control of their child's life from making decisions about medical treatment, their finances, where they live, the benefits they receive, even whether or not they can vote. So it's a very significant and very powerful, uh, court order that can be generated out of this process,
Speaker 2:You know, and doing a little background research for our conversation today. It looks like the basic data on guardianship and Wisconsin, like how many people and who, and where they live and who are the guardian. Like, that's really hard to find. There really isn't very good data, but, and the best I could find is actually pretty old, 2015, and it's kind of cobbled together information from the courts, estimated 34,000 people under guardian ship. And it says about 6,000 guardianship petitions. So those requests were filed in 2016. I know you had mentioned to me earlier that you think that number is actually low for the number of guardianships in Wisconsin.
Speaker 3:Yeah. Because if you think about, uh, in the area of, uh, cognitive disability and somebody coming out of high school, they're going to be placed under guardianship in 2015. And that guardianship is going to last for 40, 50 or 60 years until they pass away in their sixties or seventies. And then in 2016, there's another graduating class in 2017, there's another. And so the numbers just keep being added and you're under and more and more people are under guardianship for long, for a long period of time. And I also, part of my practice includes elder law. And I think we're also seeing an increase in the number of guardianships for elderly people, the baby boomers as they age. And they may reach a point where they're with Alzheimer's or dementia, where they can't make decisions for themselves and a guardian needs to be appointed. And those are, can be huge numbers in our population. So you're seeing guardianship on, in, in our society right now, expand, expanding in on both ends of the life spectrum.
Speaker 2:You make it sound like it's pretty easy to put a guardianship in place in Wisconsin. I, you know, I think we're learning from the Britney Spears case. Like that's not always a good thing. It's, um, I'm wondering what your, what your thoughts are on that and how frequently or infrequently guardianship should really be used.
Speaker 3:Well, I gave a presentation to a parent group of SCATA be maybe 10 years ago on guardianships. And when I did my research and it was really hard to come up with current data at that time, I came across the study that indicated that most guardianship hearings, uh, lasts between 15 and 30 minutes. Now I practicing court do motion practice. When you're in court, you make appearances, the judge tells you about their guns, their rules in the courtroom, but in about 15 to 30 minutes, you can have all of your rights taken away because generally the people coming in are mom and dad. They have their loved one's best interests. In mind. The court recognizes that there's been a physician's report that has indicated that the person, uh, that's to be placed under guardianship in Wisconsin, it's called the they're called the ward. They may indicate that that's appropriate. And it's just in some ways, a continuation of the care and support that an individual had when they were a minor in their parents' household. And then this gives the parents, a court order and legal authority to continue that beyond age 18. One of the things that we're finding is that the brain, the human brain does not fully develop until till about age 24, 25. That is true regardless of cognitive disability. So if you've got an 18 year old getting ready to go off to college, their brain is still immature and still needs opportunities to physically mature and to develop the executive functioning, the rational decision-making that they would need to be a more responsible adult. I mean, I can certainly look back and consider some of the decisions I made when I was 18 or 19, and they were not necessarily the best and brain research has shown that that's in fact, the case and the other research has shown that when somebody is put under guardianship, regardless of their cognitive ability, at some level, they know that they aren't making their own decisions. They are not independent. Somebody is making choices for them, and they don't have the opportunities to make decisions, maybe fail in a safe way and learn from those decisions and improve over time. But we put them on at 17 and we can put on a guardianship at 17 and a half. And that order is going to stay in place for decades. I mean, people, if you're 17 and a half and it's in for 40 years, you're only what 57. It could be another 10 years, 67, 77, that somebody else is making decisions for you.
Speaker 2:You know, and I think we're seeing what I'm hearing you say is that these, this decision is made in a pretty short amount of time, uh, and lasts for a really long time. And I think what we're seeing in the Brittany Spears case relates to what you just said, that, you know, her conservative ship was put into place after she had a pretty significant mental health crisis. And now it appears that that's no longer the situation for her, but yet it's pretty difficult or it has been. And it seems like it's drawn out now in the courts to even consider lessening that level of oversight in her life. How easy or hard is it to get a guardianship changed for somebody in Wisconsin? Who's not Brittany Spears.
Speaker 3:Oh, I would say it's, it's very difficult. I think in order to effectively challenge a guardianship, you would want to have an attorney involved who understood the rules of evidence court procedures, and be able to develop a case to make an argument for either reducing the reach and scope of a guardianship from maybe a full guardianship to a limited guardianship, to have a guardianship terminated. You'd have to look at progress that the individual has made in terms of their decision-making, what maybe backup supports will be put in place so that the person transitioning out of a guardianship to no guardianship would still have support in place to help them so that they wouldn't no sense fall back where they would need more of it. The interesting thing I found about the Brittany Spears cases, her, uh, or court order, the Genesis started under an, uh, temporary emergency order. And it was more mental health. Now, here in Wisconsin, we have a different statute that deals with those types of cases, whether it's a mental health breakdown or substance abuse. And it's called protective placement in, in, in, in Wisconsin with a protective placement. There's a requirement that once a year, that protective placement is reviewed under the guardianship statute that we have chapter 54, that doesn't have any kind of regular review of the guardianship. So that's why we say they can be put in place at 17 and a half and go unreviewed or unexamined for that person's lifetime. And whether that there would've been changes to that person in the future, it would be incumbent upon them. Now, everybody who is under guardianship has a right to an attorney, they can challenge it, but as a practical matter, that very rarely happens
Speaker 2:Well. Yeah, because I mean, it's not as if people with disabilities have the same means as certainly as Brittany Spears to connect with an attorney that can help them challenge and get into court and understand all these important, um, avenues and pieces of the law that you're mentioning. Um, you make a really important point, you know, back to that brain development point. You know, the fact that somebody might be put under a guardianship at age 17, age 18, and then, um, their brain develops and like you and I, we learned to make decisions. We probably make a lot of mistakes and you learn from those. It seems like there should be some sort of review, um, at the very least for young people, maybe for, for others as well. What do you, what are your thoughts on that and what is some progress maybe that we're making in that direction?
Speaker 3:Well, an interesting I'm licensed in Minnesota and Wisconsin. I live in the border area of Wisconsin and Minnesota. And just last year, Minnesota passed a law that has time limited guardianships for anyone under age, 30 years old. So when I looked at the Brittany Spears case, she was put under guardianship at age 26. Now, if it happened, you know, fast-forward to Minnesota in 2021, if that were the case, they would have had to review her guardianship within 72 months. So I think there's a recognition in, in guardianship circles, people who care about guardianships, um, physicians, advocates, people under guardianship, corporate guardians lawyers, judges. There is a growing recognition that that's the Bain development when you're younger is, is critical. And as I said to Minnesota, they've recognized as such that they've changed their guardianship law, that you can't put a guardianship on somebody under age 30 for more than 72 months, you've got to come back in. And we're also seeing more, um, emphasis placed on guardians. In many instances, the parents of answering the question is this really the least restrictive control that can be put on individual. And what have you tried to demonstrate why a guardianship is more appropriate than something less restrictive?
Speaker 2:Yeah. And, you know, hopefully we can get there in Wisconsin too, because you know, obviously you and I worked on the supportive decision-making law, which Wisconsin is actually a pioneer in supported decision making, which can be a good kind of a practicing option for somebody and also helpful for parents. You're a parent, I'm also a parent helpful for parents and thinking like, how can I really provide some support structure for my loved one so that they have get that good practice making decisions in a sort of a, um, more protected environment that's not restrictive to the degree that guardianship is. So, um, it sounds like, you know, just kinda wrapping up because we could talk forever and I'll put some resources in the show notes, but I'm wondering to me based upon what I've seen in the news, and there was just a hearing on guardianship in the us Senate like this Brittany Spears case has really opened people's eyes and might be changing the conversation on guardianship. If you could look forward 10 years from now, what would you hope would be the situation for people with disabilities and guardianship and Wisconsin?
Speaker 3:Well, I, I would love to see this a similar thing in Wisconsin. That's in Minnesota, that a guardianship is time limited. And actually, I think one of the benefits Wisconsin has is it's supported decision-making law because part of the challenge is not only just with families and protecting their loved ones. It's many of us who have a child with a disability, a young adult with a disability is we have to interact with systems and systems like the medical community, the benefits community, the, um, financial community. And they, they, they ask, you know, I, there's a, there's a funny phrase that, you know, if you've been identified as someone with a disability, people will ask oftentimes, and I've seen people ask this of my son, are you your own guardian? Um, I never get asked that question. No one ever asked me, am I on my own guardian? But you can see whether these implicit, um, views I reluctant to say bias because I don't think there's necessarily a negative connotation here, but there's this view that, oh, if you have a disability, you may not be making your own decisions. And that's sort of the first thing that people go to as opposed to a second or a third assumption. And that's one of the things I like about our supportive decision making law here in Wisconsin is these systems now know that there's a long place chapter. Um, 52 that says that there's another way that a person with a disability can be supported and embedded in that statute. Our PR liability protections for businesses, for healthcare providers, for the financial institutions, so that we can, they can deal with people with disabilities differently. And we can start to change the view of that. And I certainly think that, that, you know, into my own personal circumstances, and I tell stories a little bit about our, our family with permission of my son, I don't know, in a few years, whether or not a limited guardianship may be appropriate, but we have used the supportive decision-making law to get us to a better point. I do know that if we ever did a guardianship, it would be a limited guardianship. It would not be a full guardianship because I've learned as somebody supporting in a young adult with a disability, what kinds of supports he needs and what kind of sports he may need going forward. But I am looking at least restrictive. I'm looking at opportunities to put the fewest amount of restrictions on him. Because another thing to remember for parents is somebody else's likely to get this court order for guardianship and studies have also shown that if you're under guardian ship, you're not as sensitive to self autonomy to your own self as an individual. And when you don't have guardianship, you get a better sense of self and your own boundaries, and you can protect yourself better because you know that you're your own individual and you can make choices for yourself. And they're finding that that's a way of protecting vulnerable people, is their own sense of self.
Speaker 2:Thank you for shedding light on the Britney Spears case and you know, kind of what guardianship looks like in Wisconsin. You know, one thing I didn't say in the introduction is that you are such an ally for people with disabilities. I know that you have gone to court with people with disabilities and help them get their voting rights restored. I just thank you for being a pioneer and an ally on this issue and, um, hope to see some change in Wisconsin in the future.
Speaker 3:Um, thank you, Lisa and I, I showed us
Speaker 2:All right. Thanks a lot, George, for joining us and thank you to our listeners for listening to the arc experience podcast today, please be sure to like share and subscribe
Speaker 1:Today's episode of the arc experience was brought to you by the arc Wisconsin, the state's oldest advocacy organization for people with intellectual developmental disabilities and their families it's funded in part by the Wisconsin board for people with developmental disabilities. Our theme music called species is the property of[inaudible] and cannot be copied or distributed without permission. It was produced by Eleanor Cheetham, a composer and artist with autism.