Recent articles by Maine Sunday Telegram Staff Writer Eric Russell have drawn attention to several issues concerning Maine’s system for providing protection, services and supports for Maine people with intellectual disabilities who, like Norman Fisher and David Noyes, wanted or want to exercise their right to live in the community with as much independence as possible and as much support as necessary. We want to be clear that we know nothing about either situation, and we are not writing to comment on those matters specifically.

More generally, the two articles in successive weeks brought back to mind our experience with the underlying issue of state guardianship. From 1998 to 2010, we represented a class of adults with intellectual disabilities that had been certified by the federal court to receive services and supports under the community consent decree. For 12 years, we advocated for, and worked with, leadership of what is now the Department of Health and Human Services to accomplish “substantial compliance” with the decree’s requirements.

In 2010, over our objection, the court granted the department’s motion to end the decree. The department had made many improvements, but we argued that the “mechanisms of future compliance” were fragile and unreliable.

One concern related to the adult protective system, which has subsequently come under criticism by federal officials. Another was the elimination of the Office of Advocacy, which had identified shortcomings in services and supports for vulnerable persons with intellectual disabilities.

Our single greatest concern, however, was the state’s role as guardian for many individuals who had no private guardian. The state is the guardian of last resort.  Guardianship is a fiduciary responsibility, but the state-employee guardians is burdened with an unavoidable conflict of interest. DHHS’ fiscal obligations and program management decisions cannot be squared with its fiduciary obligations to its public wards. Political and administrative realities often cause DHHS to manage its budget by limiting or denying or delaying services, even to individuals to whom DHHS owes fiduciary duties as public guardian. This is a systemic disqualifying conflict of interest.

Perversely, there is no remedy when the state breaches its fiduciary duty. When DHHS was sued for allegedly mishandling the funds and property of a protected person, the Maine Supreme Judicial Court ruled that DHHS enjoyed sovereign immunity. DHHS can breach its fiduciary duties as guardian with no consequence, whether it has neglected, failed to protect or even abused a protected person.

It should be obvious that a state employee-guardian is in an impossible position when obligated legally to speak truth to supervisors who are managing a budget and who are answerable to elected officials who may have little enthusiasm for increased funding.

Near the end of our service, the Legislature’s Health and Human Services Committee conducted a workshop at which we were asked to identify the single biggest remaining problem. Our response was simple and clear: the state’s role as guardian. Throughout our service, we unsuccessfully advocated for the establishment of a system of independent private guardians, unaffiliated in any way with the state, and free to advocate for essential services and supports for people who have no one else to speak for them.

It was our experience for over a decade that the state guardians seldom, if ever, challenged the level or quality of services and supports that their wards were receiving. During that time, of course, the Office of Advocacy could substitute for guardians who were either disabled or disinclined to press for more. With the abolition of the Office of Advocacy, the architectural conflict of interest of the state guardian became exacerbated.

We do not mean to suggest that this work is easy. The direct service professionals have very hard jobs, for which they are underpaid. The nonprofit organizations work diligently to find qualified personnel to provide essential services and supports. Our experience with a series of commissioners and other state officials was generally positive. We did not encounter anybody who did not want to do things better. The need is great and the work is difficult. That is why there must be a better solution than appointing a departmental employee with a structural conflict of interest, and legal immunity from liability for violating the fiduciary duties inherent in guardianship.

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