Supported Decision-Making Eyed As Alternative To Guardianship
MIAMI — At 22, Tyler Borjas had a job, a bank account and got around using Uber and Metrorail.
But he couldn’t legally vote, buy a house or make travel plans. That’s because a Miami-Dade court deemed Borjas, who has autism, “incapacitated,” and placed him under guardianship.
“I want to make my own decisions,” Borjas, who is now 25, said. “I want my rights back.”
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Guardianship essentially stripped Borjas of his rights, meaning he couldn’t legally make decisions for himself, said Viviana Bonilla López, an attorney working with Disability Rights Florida, an advocacy group.
Bonilla López has set out to change that for Borjas and other adults by promoting a mechanism known as supported decision-making instead of guardianship. If Borjas succeeds, it’s believed he’ll be only the second person in the state to reclaim his rights back in this manner.
Supported decision-making allows adults with disabilities a “less restrictive alternative” while ensuring that they have oversight and help in making important decisions. Bonilla López filed a “suggestion of capacity,” (similar to a motion) in court last week asking a judge to give Borjas his rights back and name his mother, Kelly Bain-Borjas, and two sisters, Hayley and Jade, as his supporters.
“Supported decision-making better enables people with disabilities to protect themselves from abuse and neglect,” Bonilla López said. “Guardians and guardian advocates have sole control over the person in their care’s life with little oversight.”
So if Borjas wants to go on a trip or buy a car he would run the idea by his supporters and together they would make a decision. Borjas would be able to play a more active role in controlling his own life.
Tyler as a child
Borjas was a toddler when his mother started to notice her son wasn’t hitting certain milestones, including talking. Her brother told her not to worry, because boys tend to develop a little slower.
She ended up taking him to a neurologist and learned her son had autism.
She enrolled him in a Miami preschool that offered a program for children with autism. He was placed in an ESE class in elementary school and “he excelled,” his mom said.
Bain-Borjas said she didn’t want to hold her son back from doing anything he wanted to do. He wanted to learn martial arts. She obliged. He wanted to volunteer. So she signed him up. He wanted to work. She helped him get a job.
At 16, Borjas was already learning the importance of helping others and working. His first volunteer job was at a bird sanctuary. While in high school, Borjas was placed in a job-training program at the University of Central Florida, where he got experience by working at places including Publix and an assisted living facility.
“One thing about Tyler, is he is very self-motivated,” she said.
A life for himself
Borjas completed an internship at Nicklaus Children’s Hospital, and in 2016 he got a job at AmericanAirlines Arena working in the Papa John’s. He is currently not working because the pandemic has shut down major events.
Borjas does it all. He uses the dough machine, makes the pizza and delivers throughout the arena.
He was living at home, but building the life he wanted.
How they fell under guardianship
When Borjas was 22, his mother filed a personal injury lawsuit on her son’s behalf. She said a lawyer told her the only option was guardianship.
She had heard about guardianship while her son was in school, but never went that route because she didn’t think her son needed it.
She said before she knew it, the judge deemed Tyler incapacitated.
“I was thrown off,” she said. “I didn’t want to take his rights away. I was very distraught.”
What led them to supported decision-making
Bonilla López is an Equal Justice Works Fellow working with Disability Rights Florida.
Her project, which is sponsored by the Florida Bar Foundation, is focused on expanding the use of supported decision-making.
She said she met Tyler and his mom at an event in October where she presented on the topic.
That’s when Bonilla López decided to take on Tyler’s cause.
“Tyler’s case is a perfect example that a guardianship should never have happened,” she said. “He was already independent and he was being found incapacitated.”
The first Florida case
Michael Lincoln-McCreight became the first person in Florida to terminate his guardianship in favor of supported decision-making.
In 2014, Lincoln-McCreight, who has a developmental disability and was in foster care, was deemed incapacitated after an advisor decided guardianship was the best route for him.
Now 25, he was around 20 at the time and participated in the Sheriff’s Explorers, volunteered at hospitals, went to church and loved movies.
But that didn’t matter. In September 2014, the Circuit Court of St. Lucie County declared Michael incapacitated and he lost his rights.
“My dad always taught me to be independent,” he said. “I was shocked that it happened.”
Working with Disability Rights Florida, Lincoln-McCreight, who is a security guard, got his rights back in 2016.
He now works to help others like Tyler.
“People with disabilities can do anything if they set to their mind to it,” he said.
On a mission
Bonilla López’s main goal is to spread the word that supported decision-making should be used as an alternative to guardianship when it is appropriate.
“Guardianships are overused when really the person could be making their own decision with support,” she said. “A lot of times people confuse needing help with not being able to do something. But all of us need help, all of us need advice and people with disabilities are no different.”
Bonilla López said they are also working on legislation that would require supported decision-making to be considered before a disability guardianship is activated.
For Tyler, getting his rights back would mean he is in control.
For his mom: “I am just so happy that there is something in place that can help Tyler.”
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