State Bar of Michigan
Volume
1, Issue 3, July 2005
Disabilities Project Newsletter
Lay Advocates as an Accommodation
for Individuals with Disabilities
One of the biggest challenges to courts in providing accommodations under the Americans with Disabilities Act (ADA) is finding accommodations for individuals who have cognitive or psychological disabilities. Not only are these disabilities sometimes “hidden” and not easily apparent, but an additional challenge is that the person may not know about, or understand, his/her right to ask for and receive an accommodation. Individuals with cognitive disabilities may not understand what a hearing is about or what their rights are. Individuals with schizophrenia may be so disoriented they cannot grasp what is being said. An older person may become easily confused and unable to participate in the process. It is necessary to find creative accommodations for individuals with these disabilities, and flexible ways to request them.
The Open Justice Commission Disabilities Committee (OJCDC) submitted a report in April, 2001 addressing these issues. After conducting surveys and research about individuals with these types of disabilities, the OJCDC reported in most court processes, and particularly in criminal court, screening should be done to determine whether an individual has a disability. If a disability is found, an attorney who understands disability issues is the best accommodation that can be provided. However, when the court process is one in which no attorney is required, such as landlord-tenant court, or in which no attorney or representative is allowed, such as small claims court, the individual with a cognitive or psychological disability is at even more of a disadvantage. In these cases, only the assistance of another person can provide equal access to the court process.
The OJCDC did a survey of professionals who work with individuals with cognitive or psychological disabilities who become involved in court processes. In an elder-law program, it was found that older people sometimes have a small claims issue, but cannot easily understand or follow the court process. They sometimes choose not to pursue their claim when they discover they cannot bring their spouse or friend with them to help them through the process. In community programs for people with developmental and psychiatric disabilities, it was found that individuals are in danger of being evicted in landlord-tenant court unless third parties help develop and request creative accommodations. These individuals are able to live in their own homes only with appropriate support provided by community agencies. They do not understand the meaning of an accommodation under the ADA or Fair Housing Amendments Act. It is impossible for them to take advantage of accommodations required by these laws on their own.
As an example, a man with cognitive disabilities moved from an institution to an apartment where he received frequent visits from a community mental health (CMH) staff person. He went out every day to a part-time job and functioned well most of the time on his own. However, one day the toilet overflowed in his apartment. Since he had never run into this problem before, he didn’t know what to do and simply put towels on the bathroom floor to soak up the water, then left for work. By the time it was discovered, the water had run into the apartment below, causing considerable damage. The landlord started eviction proceedings because the tenant had not followed the lease agreement requiring notification of plumbing problems to management. The CMH staff person intervened in the court process, developed a plan in which the tenant would be taught about all the potential plumbing and electrical problems that could go wrong. The tenant agreed that when such circumstances arose he would contact the CMH staff person 24 hours/day so she could take appropriate steps, including calling management. Without the assistance of the staff person to devise and offer this accommodation to the court, the man would surely have been evicted. These types of accommodations require the support of CMH staff or other advocates of individuals with disabilities in order to assure the continued inclusion of the disabled in their community.
A request for an individual to assist in such a hearing as a form of accommodation is comparable to a hearing-impaired person who asks for an augmented hearing device, or person in a wheelchair who asks for a ramp. A court can require that such a request be made formally through the State Court Administrators’ Office “Request for Accommodation” form (MC 70, 20/97), or can accept more informal inquiry methods.
Questions have arisen whether such an advocate is really engaging in an unauthorized practice of law. Certainly, we must vigorously guard against the potential abuses of unauthorized practice of law. However, the delineation of an individual’s right to an effective accommodation for a disability and the unauthorized practice of law needs to be defined.
The OJCDC recommended in their report that the Open Justice Commission should “work with the Standing Committee on the Unauthorized Practice of Law to explore methods to provide advocacy accommodations for individuals with disabilities without the risk of an advocate being accused of practicing law without a license.”
While this issue is being debated, many courts are taking the initiative of entertaining requests by community agency staff and advocates to assist individuals with cognitive or psychological disabilities in hearings that do not require or allow attorneys. This is a positive step to assure that the promises of the ADA guaranteeing equal access to the courts to individuals with disabilities are meaningful.