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The Olmstead “choice” provision
and guardianship rights
Patricia
G. Williams
Attorney and Counselor at Law
897 S. Los Robles Avenue
Pasadena, CA 91106
Tel: (626) 796-0605
Fax (626) 792-7119
September
6, 2000
The
Court’s conclusion, expressed in a 3-prong standard which has become known as
the “Olmstead Rule,” requires community placement “when the State’s
treatment professionals determine that such placement is appropriate, the
affected persons do not oppose such treatment, and the placement can be
reasonably accommodated, taking into account the resources available to the
State and the needs of others with mental disabilities.
Some clarification is still necessary, however, in determining whether
the decision in Olmstead impacts upon who is qualified to object on
behalf of an individual with developmental disability where that individual
lacks the capacity to make an objection to placement. The Olmstead case
is completely silent on surrogate decisionmaking. The Supreme Court was not
asked, so did not address, the question of what decisions guardians,
conservators, or parents can make on behalf of persons with mental retardation
(Note that the only place the word “guardian” appears in Olmstead is
in the case heading. The case was filed, not by the two persons with mental
retardation themselves, but by a guardian ad litem, exercising their rights and
choices on their behalf. The guardian ad litem was appointed because the court
determined the individuals were not competent to act in their own best interests
without assistance).
We must then, as is common and correct practice in interpreting court
decisions, go beyond the four walls of the decision to use other existing law to
answer this question. If the Court were to say that persons with mental
retardation were entitled to choose their own physician from those available in
their geographic area, we would combine that principle with other existing law
regarding health care decisionmaking and conclude that a conservator who has the
power to make health care decisions on behalf of an adult with mental
retardation is authorized to make the choice of an appropriate physician. If an
adult with mental retardation has authorized an agent through a durable power of
attorney to make such decisions, the agent would also have authority to make
that decision.
There is no indication in Olmstead that the Court intended to
redefine settled statutory mechanisms for decisionmaking found in state law in
every state of the United State, evolved over hundreds of years from their
origins in common law. Absent some clear direction from the U.S. Supreme Court
to the contrary, we must conclude that the laws pertaining to guardianship,
conservatorship, durable powers of attorney and advance directives remain
intact. Where a court has exercised its judgment through judicial proceedings to
authorize an individual to make decisions on behalf of a person with a
disability, that individual’s authority must necessarily carry greater legal
weight than any other individual purporting to speak on behalf of the person
with a disability. California law pertaining to the involvement of parents,
guardians and conservators in decision making pertaining to institutional and
community residential placement of individuals with developmental disabilities
is undisturbed by the Olmstead decision.
It
is not so long ago that the U.S. Supreme Court expressed its opinion on the
importance of family participation in decisionmaking on these issues in the case
of Heller v. Doe (509 U.S. 312). Reviewing statutory provisions for
involuntary commitment of persons with mental retardation in the State of
Kentucky which provided for participation of family members in commitment
proceedings, the Court found a rational basis for the participation of families,
arguing “Kentucky might have concluded that close relatives and guardians had
valuable insights which ought to be considered during the commitment process.”
The Court specifically noted that such participation “increased the accuracy
of the proceedings” . . . “without undermining the liberty interest of the
person facing commitment.” Respect for the importance of such familial
participation is echoed in the Bear [Pennsylvania] case.
Although
there has been much discussion within the disability community of the meaning of
“choice” and how “choice” can be exercised by persons with severe
developmental disabilities, there has been no genuine legal challenge to the
authority of parents of minor children and guardians or conservators of adults
with developmental disabilities to be primary decisionmakers in those areas
recognized by competent courts of jurisdiction.
