Resources: Articles

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Supported Decision-Making: A Viable Alternative to Guardianship

Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell

The law has traditionally responded to cognitive disability by authorizing surrogate decision-makers to make decisions on behalf of disabled individuals. However, supported decision-making, an alternative paradigm for addressing cognitive disability, is rapidly gaining political support. According to its proponents, supported decision-making empowers individuals with cognitive challenges by ensuring that they are the ultimate decision-maker but are provided support from one or more others, giving them the assistance they need to make decisions for themselves.

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Public and Private Bricolage – Challenges Balancing Law, Services & Civil Society in Advancing CRPD Supported Decision Making

Terry Carney & Fleur Beaupert

The article discusses how, particularly in Australia where, state or public functions have contracted in recent decades, the balance between public law, private law and civil society has impacted efforts to advance SDM.

Download PDF Public and Private Bricolage – Challenges Balancing Law, Services & Civil Society in Advancing CRPD Supported Decision Making

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Guardianship for Young Adults with Disabilities as a Violation of the Purpose of the Individuals with Disabilities Education Improvement Act

Arlene S. Kanter

The Individuals with Disabilities Education Improvement Act (IDEIA), originally enacted in 1975, has, as its purpose to “provide a free appropriate public education” to children with disabilities and to prepare them for further education, employment, and full participation in society. This article presents the view that guardianship as part of the transition planning process for young adults with I/DD undermines the language and purpose of the IDEIA.

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Piloting Personhood: Reflections from the First Year of a Supported Decision-Making Project (2017)

Kristin Booth Glen

Locating personhood within the human right of legal capacity, the article describes some of the lessons  SDMNY learned in the first year of its experiment in implementing legal capacity through SDM.

This and other articles published as part of the Cardozo Law Review’s issue on its 2017 legal personhood symposium are also available.

Download PDF Piloting Personhood: Reflections from the First Year of a Supported Decision-Making Project (2017)

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SDM & the Human Right of Legal Capacity (2015)

Kristin Booth Glen

The Article describes the human rights regime inspired by the CRPD and calls for a paradigm shift in how we view people with ID, from inquiry into what a person cannot do, to supports necessary to enable her/him to make her/his own decisions, and the legal efforts necessary to ensure that such decisions are recognized by public and private third parties. 

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Overview of Guardianship for Individuals with ID (2018)

Tara Anne Pleat, Edward V. Wilcenski & Katy Carpenter

Tara Anne Pleat, an SDMNY Advisory Council member, explains some of the issues and controversies surrounding guardianship law and practice with regard to persons with intellectual disabilities (ID) in New York State under Article 17-A of the Surrogate’s Court Procedures Act.

Reprinted with permission from: Health Law Journal, Fall 2018, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

Download PDF Overview of Guardianship for Individuals with ID (2018)

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Reflections on Autonomy (2017)

Dohn Hoyle

The author, a former Director of ARC of Michigan and long time disability rights advocate reflects that few recurring problems have been as vexing as the pervasive use of and blind acceptance of guardianship  which he describes as both “disconcerting” and “for persons with a history of being oppressed,… unconscionable.”

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Restoring Rights in 17A Guardianships (2018)

Jennifer Monthie

The article, describes Disability Rights New York’s representation of clients with I/DD in rights restoration proceedings, following the stories of three people, Michael, Junior, and Kelly, who sought the termination of their Article 17A guardianships.

Reprinted with permission from: Health Law Journal, Fall 2018, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

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What Judges Need to Know About Supported Decision-Making, and Why

Kristin Booth Glen

The article describes the 2017 ABA Resolution “urg[ing] courts to consider supported decision-making as a less restrictive alternative to guardianship” and “to consider available decision-making supports that would meet the individual’s needs as grounds for termination of a guardianship and restoration of rights”  including how some judges have taken the lead in promoting SDM in their jurisdictions. 

Download PDF What Judges Need to Know About Supported Decision-Making, and Why