| Abstrakt: |
Britney Spears' conservatorship has been rightly criticized for denying her civil and human rights, and indeed conservatorships and guardianships continue to be tools of abuse of some of our most vulnerable citizens. The Convention on the Rights of Persons with Disabilities requires recognition of legal capacity and decision-making for all adults with disability, and arguably also requires abolition of guardianship. It further requires that people with disability be provided with supports for decision-making according to practices of "supported decision-making". Yet while there is broad commitment to implementing supported decision-making, there is still significant resistance to totally abolishing guardianship. This article provides a more sophisticated and informed understanding of what guardianship is, and how guardianship systems can be reformed, to encourage less restrictive alternatives and maximize the use of supported decision-making. It does this by comparing the California conservatorship system with guardianship systems in two Australian states. In California, conservators are appointed by courts bound by due process, while in Australia, administrative tribunals operate under informal rules of natural justice. Ironically, the Australian systems are much more likely to result in less restrictive alternatives than guardianship (including supported decision-making). If Ms. Spears had lived in Australia, it is unlikely that she would have been placed under guardianship, and if she had been, it would not have lasted thirteen years. Abolishing rather than reforming guardianship systems, without understanding how they operate, or what will replace them, risks defunding current systems of support for vulnerable citizens, in the name of upholding civil and human rights. [ABSTRACT FROM AUTHOR] |
