COFAR blog

We have been dealing lately with several cases in which family members of persons with intellectual and developmental disabilities have lost their guardianships and have embarked on difficult quests to obtain legal representation in probate court.

For many, getting an attorney is prohibitively expensive. Even for those who can afford it, finding attorneys with experience in going up against the Department of Developmental Services (DDS) can be frustrating.

For some time now, we have been exploring options for those families who find themselves pitted against both DDS and the probate court system. 

One lesson we’ve learned so far is perhaps not to rely on entities that bill themselves as legal advocacy organizations that fight for rights under guardianship.

A case in point concerns two Massachusetts-based and one national legal advocacy organizations that we recently contacted to request free legal help for a woman who receives DDS services and who told us she was placed involuntarily under the guardianship of a DDS provider.

Earlier this month, I emailed the Boston-based Disability Law Center (DLC), the Easthampton-based Center for Public Representation (CPR), and the National Center on Law and Elder Rights (NCLER) to ask whether any of them would represent this person.

All three are legal organizations that maintain that they advocate for the rights of people with disabilities. The CPR and NCLER have so far not responded to me. The DLC did respond, saying they don’t actually handle guardianship cases.

I had emailed the DLC on October 3, the CPR on October 10, and the NCLER on October 17.

The DLC describes itself on its website as a part of “a national network of disability rights agencies investigating abuse and neglect and providing legal representation and other advocacy services to people with disabilities.”

We are, meanwhile, exploring other options for families such as contacting attorneys that provide pro bono representation. And we have begun examining the possibility of having non-attorneys represent family members as advocates in probate court.

Last week, I contacted probate court clerks’ offices in Worcester and Woburn to see whether I could attend court sessions on behalf of two different families that are currently caught up in guardianship battles in those courts. I received conflicting answers from those offices as to whether I, as a non-attorney, could attend those sessions.

Response from the Disability Law Center

As noted, I emailed the DLC on October 3, asking whether that agency might be able to provide legal assistance or representation to the woman who has been placed involuntarily under the guardianship of an organization funded by DDS.      

I noted in my email that we understand that the DLC has advocated for the rights of persons under guardianship and for limitations on guardianships where possible. For example, an online DLC brochure on “self-determination” states that:

A person has the right to have the (probate) Court limit a guardianship as much as possible.  A person under guardianship has the right to have a guardian who considers the person’s expressed preferences and acts in the person’s best interests.  A person has the right to be present and participate in the guardianship hearing. This includes giving the Court evidence and asking questions.  A person under guardianship has the right to ask the Court to remove the guardian. (our emphasis)

I stated in my email to the DLC that it appears that at least some of the woman’s rights, as enumerated by the DLC, are being violated under the current guardianship arrangement. She was placed under a full guardianship, yet the guardian is someone who does not appear to be considering her expressed preferences.

I’ll give the DLC some credit for having responded to me. On October 7, Nancy Murphy, the managing attorney for the DLC’s Intake Unit, wrote back to say that the DLC “does not handle guardianship cases.” She added that, “This is to avoid duplicating work that other organizations and the private bar do.” However, she didn’t identify any other such organizations.

Murphy added that, “Our focus areas allow us to better use our very limited resources on our core mission of monitoring and investigating abuse and neglect.”

The DLC has told us before about their limited resources even though they received some $4.3 million in federal, state, and other revenue in Fiscal Year 2023, according to the organization’s 2023 tax filing available on the ProPublica Nonprofit Explorer website.

I wrote back to Murphy, stating that it was disappointing to learn that the DLC does not handle guardianship cases and that such cases are not part of the DLC’s core mission. I noted that we would hope that the DLC recognizes that guardianship is central to the question of the quality of the care of individuals with intellectual and developmental disabilities.

I also pointed out that it appears that the DLC would have a role in implementing pending legislation, which would authorize “Supported Decision Making” (H.4924 and H.4949) as an alternative to guardianship in Massachusetts. The DLC wants to take on this role, as we understand it, because the DLC considers that guardianship “takes away an individual’s personal decision-making rights and responsibilities.” 

Yet, I noted, when there is a clear case of an individual whose personal decision-making rights and responsibilities have been taken away by the appointment of a state-funded guardian, the DLC is not interested or has too little resources to advocate for that individual’s rights and responsibilities.

The Center for Public Representation

As noted, I requested legal assistance from the CPR for the DDS client on October 10, and have not received a response as of this date.

The CPR’s 2023 tax filing describes the organization as “providing legal assistance, counsel, and representation to institutionalized, low-income individuals with mental illness or other disabilities at no charge.” In the tax filing, the CPR describes its mission as seeking “to improve the quality of lives of people with mental illness and other disabilities through the systemic enforcement of their legal rights while promoting improvement in services for citizens with disabilities.”

According to the tax filing, the CPR received just over $1 million in revenue in 2023.

We have noted that the CPR’s website states that the organization has developed a partnership with more than a dozen law firms “to directly represent thousands of individuals with disabilities” on a pro bono basis. We will attempt to contact those organizations in coming weeks.

The National Center on Law and Elder Rights

The NCLER describes its mission on its website as providing “the legal services and aging and disability communities with the tools and resources they need to serve older adults with the greatest economic and social needs.” 

I stated in my October 17 email to the NCLER that we understand the organization is dedicated to protecting and enhancing the rights of persons under guardianship. As the NCLER noted in a paper on guardianship, “When a person asks for the return of their rights (under guardianship), they very likely have the capacity to make choices—especially with appropriate supports.”

The NCLER appears to be a government organization and therefore doesn’t file a tax form, which would list its revenue. So, unfortunately, there appears to be no available information about that.

As we have seen repeatedly, people need legal representation when appearing in probate court, just as in any courtroom setting. Without it, they are hopelessly outgunned and outmaneuvered.

Unfortunately, the combined DDS and probate court system in Massachusetts won’t help families unless they have the money to hire experienced attorneys. Today, that combined system appears to be broken.