Unbundling disability rights

From my email:

My name is Max Grozovsky. I’m an economics student at the University of Delaware (until I finish a few more papers and can start my life) and a fan of your blog/column.

Thanks a lot for using your platform to elevate disability rights. I hope you’ll write more on the topic going forward, perhaps mentioning supported decision-making mechanisms which have been touted by the National Council on Disability as alternatives to guardianship that actually help people rather than bundle and strip their rights wholesale based on the canard that incapacity in one area implies incapacity in an unrelated one.

Also, since you (or is it someone else?) sporadically post on Islamic architecture/history, here’s my favorite nonficiton book, unsolicited.


Anyone observing that incapacity in one area implies incapacity in an unrelated one is clearly someone who has never cared for someone with incapacity in basically all areas.

As many commenters pointed out in the previous post, it depends on the individual case.

It is not clear from the post that this book is NOT about Islamic architecture or history. The post has an unspoken agenda.

Hey man! Since you’re an idiot, I’ll copy Harvard Press’ description of the book:

What Is Islam? formulates a new conceptual language for analyzing Islam. It presents a new paradigm of how Muslims have historically understood divine revelation—one that enables us to understand how and why Muslims through history have embraced values such as exploration, ambiguity, aestheticization, polyvalence, and relativism, as well as practices such as figural art, music, and even wine drinking as Islamic.

Shouldn't you have provided that snowflake a trigger warning? He sounds like the sort of person who needs as much safe space as we can give him.

Though who knows - we all might have an unspoken agenda.

This ain’t my field.

But analyzing the history of Islam sure seems like Islamic history.

Some other great books that aren't NOT about Islamic history:

Disability in the Ottoman Arab World, 1500–1800, NOT by Sara Scalenghe
Religion in Modern Islamic Discourse, NOT by Abdulkader Tayob
Islam without Europe: Traditions of Reform in Eighteenth-Century Islamic Thought, NOT by Ahmad Dallal
"Did Premodern Muslims Distinguish the Religious and Secular? The Din-Dunya Binary in Medieval Islamic Thought," in Journal of Islamic Studies (2020), NOT by Rushain Abbasi
Revival from Below: The Deoband Movement and Global Islam, NOT by Brannon Ingram
Gendered Morality: Classical Islamic Ethics of the Self, Family, and Society, NOT by Zahra Ayubi
Sexual Politics in Modern Iran, NOT by Janet Afary (which does NOT reference Tyler)
Before Homosexuality in the Arab-Islamic World, 1500-1800, NOT by Khaled El-Rouayheb

sorry your dick is so small. give the guy a chance.

This feels like uninformed doubling down after all the informed comments from the last guardianship post.

And the link adds "mental illness" into the grab-bag along with "disability" and "autism".

A problem with guardianship (there are many) is that it's a straight-jacket: there's little if any flexibility in how it's applied. Thus, the title of this blog post for reform (unbundling). I wouldn't wish guardianship on my enemies. Probate has similar problems, but with probate the poor sap is dead. But let's not overlook how and why estates (and people) end up in guardianship and probate: a combination of ignorance and need for maintaining control. I recently worked with an older, retired couple to update their estate plan, a case I accepted only because the husband had recently been diagnosed with a terminal condition. As we went through the process of first developing a plan and then preparing and reviewing several drafts of documents, what became clear is that this couple didn't plan to die, well, they would die but they would control their descendants from the grave. The more I emphasized the need for flexibility (circumstances change), the tighter they wanted the straight jacket. I wanted no part of it. Do people who wish to maintain control after they are dead suffer from a mental illness? Fred Trump wanted to maintain control over his family after he was dead, and his family has suffered the consequences. Along with the rest of us.

You really wrote that last sentence right after 'suffer from a mental illness'?

I routinely practice law in probate court which handles guardianships, conservatorships and the probate of decedent's estates, as well as trust administration. I don't love the status quo (although Colorado's Uniform Probate Code and Uniform Trust Code are better than the vast majority of states), which has deep conceptual flaws, but there are real problems that need to be addressed, and while there are many hard cases, there are also many easy ones.

The book on Islam is very interesting -- it takes an uncommon look at how the religion responded, and was shaped, with its exposure, in the Indian subcontinent, to Buddhist-Hindu faiths. Here's another critical view of the evolution of Islam in the subcontinent -- recommended:

I downloaded and look forward to reading it.

...human stories can help convey why disabled people are human beings entitled to the full benefits of citizenship and adulthood, and why they shouldn't be permanently stripped of 100% of their legal rights without individual assessments of their capacities to exercise each right.

This wonderful film, Intelligent Lives, has been screened at universities across the country and is available for free through July 31st:

After my father had a stroke, he could not use money or count but he could give directions (turn here) to somewhere he knew. Very specific issues. Stroke can also be recovered from to some degree. So guardianship that is one size fits all is dubious. The previous post had someone adamantly insisting that all persons should maintain all rights but a parkinsons patient who is "locked in" can't even communicate. We have schizophrenic patients unable to comply with medication out on the street screaming at people, as is their right (?) but it is probably not the best solution for them or the rest of us.

Rights restrictions should be tied to individual assessments of capacities directly relevant to the exercise of each right, with a restoration mechanism since capacity is fluid. This is the antithesis of guardianship, which bundles lots of unrelated rights (e.g. the right to contract, marry, divorce, retain standing as a parent, vote, make medical decisions, choose their residence, speak freely, bear arms, etc.) *without* relevant capacity assessments for each right the based on the unscientific *assumption* that incapacity in one area implies an unrelated one. It’s also a fairly permanent adjudication for people with non-temporary disabilities and I can count on one hand the number of Americans who have successfully overturned theirs.

Article 12 of the CRPD affirms disabled people’s right to supported decision-making, a voluntary person-centered support, rather than mental health adjudications that arbitrarily restrict their rights.

Article 12 – Equal recognition before the law

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

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