What:
This community conversation will help People with Disabilities; their families and allies; lawyers, judges, and policy makers; and service providers better understand the myriad decisions each of us make every day, how those decisions are limited by guardianships, and why modern, less-restrictive alternatives offer more responsive, flexible, and person-centered ways to support People with Disabilities who—like everyone else—sometimes need help making important decisions.

When: January 21, 2025 @ 7:00 pm

Where: Disability Rights Montana, 1022 Chestnut St., Helena, MT 59601.  Live stream available.  Call 406-449-2344 or email info@DisabilityRightsMT.org for accommodations.

Who: People with Disabilities; their families and allies; lawyers, judges, policy makers; service providers; and other community members. All are invited.

More About This Session:

Over 50 years ago, Congress enacted the first nationwide protections against disability discrimination, recognizing that People with Disabilities have the right to enjoy self-determination and make their own choices.[i] The right to self-determination and to make one’s own choices is enshrined in the Montana Constitution[ii]  and recognized by International Law. [iii]

Yet, “For more than a century laws have been in place to segregate and isolate people with disabilities . . . enforce[ing] a ‘charity’ model of disability services, removing individual rights and treating adults with disabilities like children to be protected by others . . . .”[iv]  One of the most significant ways this paternalistic  and harmful approach is legally operationalized is through the inappropriate imposition of guardianships, which remove the most essential rights of a Person with a Disability and place them in the hands of a substitute decisionmaker, or “guardian.”

A person under guardianship typically has fewer rights than the typical convicted felon—they can no longer receive money or pay their bills. They cannot marry or divorce. By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die. It is, in one short sentence, the most punitive civil penalty that can be levied against an American citizen, with the exception, of course, of the death penalty.[v]

The “school-to-guardianship pipeline” is the phenomenon where parents and guardians of students who receive special education services are encouraged to place their students under guardianship when the student turns 18, often leading to lifelong deprivations of the individuals most basic rights and freedoms.[vi]

We’ll discuss what Montana families, policy makers, and service providers can do to stop the school-to-guardianship pipeline, protect the most fundamental rights of People with Disabilities, and better protect the inherent right of dignity and self-determination that is a hallmark of a free and democratic society.

[i] 29 U.S.C. § 701 (a)(3) (Findings and purposes of the Rehabilitation Act of 1973, which includes that law commonly called “Section 504”); see also 42 U.S.C. §§ 12101(b)(1), et. seq. (The Americans with Disabilities Act, which created “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”).

[ii] Mont. Const., Art. II, Sec. 4. (“The dignity of the human being is inviolable.”); see also Baxter v. State, 2009 MT 449, ¶ 64, 354 Mont. 234, 224 P.3d 1211 (Nelson, J., specially concurring) (“[I]ndividual dignity is, in all likelihood, the most important–and yet, in our times, the most fragile– of all human rights protected by Montana’s Constitution.”); and  Armstrong v. State, 1999 MT 261, ¶ 30, 296 Mont. 361, 371-72, 989 P.2d 364, 372-73 (Each individual “has the capacity for and the right of rational self-determination which must be promoted and protected by civil society and political institutions.”) (citing Larry M. Elison and Dennis Nettik Simmons, Right of Privacy, 48 Mont. L. Rev. 1, 17-19 (1987); Jeffrey S. Koehlinger, Substantive Due Process Analysis and the Lockean Liberal Tradition: Rethinking the Modern Privacy Cases, 65 Ind. L.J. 723 (1990)) (explaining John Locke’s conception of “liberty” enshrined in the U.S. Constitution).

[iii] Convention on the Rights of Persons with Disabilities, Art. 3(a), 2515 U.N.T.S. No. 44910 (entered into force May, 2008) (signed, 2009, by the U.S., but not ratified) (Recognizing as a general principle “respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons [including People with Disabilities].”).

[iv] The Americans with Disabilities Act at 25 at 11–12 [hereinafter NDRN Report] (Nat’l Disability Rights Network 2015) (emphasis added), available at https://www.ndrn.org/images/Documents/Resources/Publications/Reports/ADA_at_25_Final.pdf.

[v] Abuses in Guardianship of the Elderly and Infirm: A National Disgrace. A Briefing by the Chairman of the Subcommittee on Health and Long-Term Care of the Select Committee on Aging, 100^th Cong. (prepared statement of Chairman Claude Pepper), H.R. Select Comm. on Aging, Subcomm. on Health and Long Term Care, Publ’n No. 100-641 at 4 (Sep. 25, 1987) (emphasis supplied), available at https://files.eric.ed.gov/fulltext/ED297241.pdf.

[vi] Ally Seneczko, Special Education, Guardianships, and Procedural Due Process,  81 Mont. L. Rev. 289, 297–98 (2020) (quotations and citations omitted), available at https://scholarworks.umt.edu/mlr/vol81/iss2/5/.