Disability Rights Montana
Guardianship and Other Less Restrictive Alternatives
People with disabilities are born with every right granted to individuals under Montana and United State laws. Sometimes, people with disabilities may need support in making decisions or conducting the business of their lives. To avoid unnecessary infringement upon the rights of people with disabilities, the least restrictive option to provide this support must be explored and employed well before any other, more restrictive options are considered.
The kinds of less restrictive options we endorse are Supported Decision Making Agreements, limited powers of attorney, social security payees, and a whole host of assistive services, such as case management, meals on wheels, home health care and nursing, peer support, etc.
To the extent a person with a disability is incapable to make legal decisions, the law and courts must insist that these less restrictive options are explored and employed before considering a more restrictive arrangement. Only after this has been done may a guardianship or conservatorship be considered. Even then, the preference must be limited/temporary guardianship or conservatorship which address only those narrow issues when a person with a disability is incapable of making a decision. It should end as soon as possible, and the guardian or conservator must be required to support the independence of the person under guardianship.
Any guardianship/conservatorship law and system must ensure the appropriate training and monitoring of both family/friends and professionals who take on this duty. This includes requiring them to comply with the National Guardianship Association Standards, or other applicable standards that require professional conduct, as well as legal procedures and provisions that provide for the adequate monitoring of these relationships to protect individuals under guardianship from exploitation, abuse, and neglect.
All persons with disabilities have the right to vote if they meet the requirements set by state law. In Montana, these requirements are:
- residency in the state for 30 days prior to an election,
- be of sound mind; and
- not be serving a sentence in a correctional institution.
Providing for voting is a governmental service and the government conducting an election must accommodated voters with disabilities according to the state and federal law. This includes the counties, who manage federal and state elections, municipalities who conduct city elections, school districts who conduct school elections, and special districts which conduct their own elections.
Accommodations include accessible polling places and accessible voting machines, as well as the lack of disparate treatment, or lack of unfair procedures, such as unreasonable requirements to demonstrate that one is of sound mind, etc.
Service animals provide a critical aid to people with disabilities. They must be treated with respect. Federal law places service animals that are dogs in a position where they are presumed to be allowed entry in public accommodations and public places as an aide to people with disabilities. Miniature horses are also recognized as service animals, but do not have the same protections as dogs.
Federal law does not allow public accommodations or public entities to require a certification of service animals. There has been a trend across the country to criminalize the use of animals falsely identified as service animals. Various parts of the disability community are in support and in opposition of these laws. We do not believe that the involvement of law enforcement in this issue is helpful. Additionally, we are quite concerned that the enactment of such laws will encourage greater confrontation of people with legitimate service animals. We believe that many of the anecdotal disputes that have been reported would be resolved if the parties involved understood the federal law, including the provisions that establish that a dog that is out of control of the handler is not entitled to the protections for a service animal.
Meaningful work is an essential part of life and people with disabilities should have the same opportunities to achieve meaningful work as anyone else. This means work that is competitive and integrated, and which compensates people fairly. We believe that sheltered workshops which pay people with disabilities less than the minimum wage and segregates them from the larger workforce are in violation of federal and state anti-discrimination law.
Access to Education
Students with disabilities are entitled to learn without discrimination. This requires that schools provide services which address their needs. These must be individualized and comply with federal law. These services should be provided in integrated setting and not be provided in a manner that segregates students. Educational services must be provided in all contexts, including institutional placements such as psychiatric residential treatment facilities and correctional settings.
Personal Relations and Sexuality
People with disabilities have the same constitutional rights to associate with people of their choice as those without disabilities. This includes all types of social interactions. People with disabilities should be provided all the resources and educational opportunities provided to those without disabilities regarding sexual relationships, including issues of reproductive health, consent, contraception, partner abuse, and other aspects of these relationships. Given that persons with disabilities represent a disproportionate percentage of those subject to sexual assault and abuse as children and as adults, extra efforts must be made to provide support to individuals with disabilities in assessing situations and making choices.
People with disabilities have the same fundamental right to marry and engage in sexual relationships. They have the right to parent their children as anyone else. Reasonable accommodations must be provided to these parents to support their ability to parent.
Gun Ownership and Hunting for People with Disabilities
People with disabilities have the same rights to own and use firearms as the rest of the population. However, limitations such as the federal Brady bill have been imposed that prohibit people who have been involuntarily committed and those who have been appointed guardians from owning, possessing, or using firearms. This law provides only a federal court petition to restore these rights, which is burdensome for individuals with disabilities.
This federal law takes away the individual judgment of state district court judges to limit or preserve this right for a person who is subject to a petition for involuntary commitment or a guardianship. Hunting is a strong part of the culture of Montana, and these individuals are categorically excluded from this experience, which can be part of the recovery process. Also, because we are aware of the common practice of issuing a full guardianship, without considering less restrictive options, many people have these rights restricted without actual consideration of its implications.
Unfortunately, many have publicly assumed that the culprits of mass shootings in the last 10 years are people with disabilities. However, many of these individuals have not been diagnosed with serious mental illnesses, or if they do have diagnoses, were not identified prior to the tragic events they bring about. Thus, attempts to reduce or eliminate mass shootings that focus mainly upon persons with mental illness or other disabilities miss the point.
Although we support greater access to mental health treatment, which is often called for as a way to end mass shootings, these two factors should not be linked in our public discussions. People with disabilities are far more likely to be victims of violent crimes than perpetrators of them.
End of Life
People with disabilities have the same rights as everyone else under the laws and constitutions of Montana and the United States. The Montana Supreme Court has found that an individual may receive help to hasten their death from health care professionals if they are in a terminal condition, and the intervention sought is consensual. Baxter v. State (Baxter v. State; 354 Mont. 234; 224 P. 3d 1211). In this case, we participated as an amicus curiae and took a position against finding that the “right to die” should be found in the Montana Constitution, which would allow no statutory restrictions upon the right. We took that position as we are well aware of the differential treatment of persons with disabilities by the health care profession and believe that statutory limitations on the withdrawal of treatment and the hastening of death are essential tools to attempt to address that differential treatment. We believe that people with disabilities have the right to make the full panoply of medical choices – however we believe that to truly protect those rights, strong statutory protections are necessary to keep people with disabilities safe from jeopardy.
Currently, the rights of the terminally ill act in Montana allows people with disabilities or their representatives to choose to withhold water and nutrition only once the person has been found to be in a terminal condition. We have found it important to intervene in multiple cases where this determination has not been made or has been made in a vague or unclear manner, yet water and nutrition have been withheld. We will continue to do so.
Under Baxter, it is still illegal to hasten an individual’s death if they are not in a terminal condition. Only where the person is in a terminal condition, they are competent, and they have made a decision to hasten death, is there a defense for a health care provider to avoid a homicide prosecution should they aid the person in this endeavor. We will insist upon compliance with the criminal law in any cases where an individual with a disability is presented with this choice.
Under the U.S. and Montana constitutions, people with disabilities have the same rights to reproductive choice as any other individual. These rights are fundamental and can only be infringed by a compelling state interest.
People with disabilities have the right to use or forgo contraception, decide whether or not to opt for sterilization, and to choose or forgo abortion services. As these are fundamental rights, we believe that state guardianship laws should not allow guardians to make these decisions for those under guardianship, but instead to seek a court determination before making this decisions, just as such a determination is required for involuntary commitment.