CPR’s various initiatives on the state and national level seek to advance legal capacity, and realize the goal of the Americans with Disabilities Act “to assure equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities.
CPR has been working with the American Bar Association and various state and national stakeholder groups to reform guardianship laws and establish guardianship standards that include mandatory training for guardians. Other efforts are focused on capacity determinations, due process rights, alternatives to guardianship, and the restoration of rights for people with disabilities. Staff have written numerous briefs, papers and articles on these issues, including:
- Lexis published three editions of John Cross, Robert D. Fleischner and Jianne Elder, Guardianship and Conservatorship in Massachusetts, which was the first comprehensive treatise on guardianship. The last edition by the original authors was published in 2014. The treatise has been revised is updated and is annually by a new group of attorneys. The treatise has been cited as authority by Massachusetts courts.
- Steven Schwartz, Abolishing Competency of a Construction of Difference: A Radical Proposal to Promote the Equality of Persons with Disabilities 47 U. Miami L. Rev. 867 (1993)
- Robert D. Fleischner, Advance Directives for People with Mental Illness: A Survey of State Law, 4 Psychology, Public Policy Law 788 (1998)
- Robert D. Fleischner and Dara Shur, Representing Clients Who May Have “Diminished Capacity”: Ethics Issues, 41 Clearinghouse Rev. J. of Poverty L. & Pol’y 346 (2007)
In Massachusetts, CPR was part of a committee sponsored by the Massachusetts and Boston Bar Associations and the Probate and Family Court to reform the state’s guardianship and estate statutes using the Uniform Probate Code as a model. Article V of the Massachusetts Uniform Probate Code drafted over several years and finally enacted in 2009, promotes limited guardianships over plenary (full) guardianships and provides important due process protections to people at risk of or under guardianship or conservatorship. A limited guardianship is tailored to a specific need, such as finances, and allows the individual to exercise choice in all other aspects of his or her life. In addition, Article V explicitly states that guardianship should be a last resort, sought only after less restrictive alternatives, such as health care advance directives and durable powers of attorney, are deemed inappropriate. Many other states have promulgated similar reforms.
After enactment, CPR was an active participant in a committee appointed by the Chief Judge of the Probate Court to implement the new statute. The Court promulgated new rules, issued dozens of new forms and trained hundreds of judges, court staff and attorneys.
CPR has continually advocated for the inclusion of supported decision-making as an alternative to guardianship in proposed legislation in Massachusetts. But so far, only Texas and Delaware have enacted legislation recognizing supported decision-making. Read about CPR’s supported decision-making initiative.