February 15, 2018 RAPID RESPONSE

Supported Decision Making as a Less Restrictive Alternative to Guardianship: What Judges Need to Know

The right to make decisions about one’s own life is a fundamental value in American law. The ABA recently passed Resolution 113 encouraging (1) states to pass legislation that amends their guardianship statutes to require that supported decision-making be identified and fully considered as a less restrictive alternative before guardianship is imposed, as well as in proceedings for termination of guardianship; and (2) courts to consider supported decision-making as a less restrictive alternative to guardianship, as well as grounds for termination of a guardianship. In this webinar, judges are invited to learn about the principles involved in supported decision making and its use in ensuring self-determination for people with disabilities.

Supported decision making—a process by which individuals with disabilities choose a trusted person or persons to support them in making their own decisions and exercising their legal capacity—has been gaining recognition as a less restrictive alternative to the surrogate decision-making model embodied in guardianship. While guardianship involves a third party making decisions for the individual, supported decision making focuses on supporting the individual’s own decisions. Recently, supported decision making has been gaining traction in courts and legislatures. In the last few years, one court has required the creation of a supported decision making system in place of guardianship for an individual with Down Syndrome and others have granted restoration of rights upon a showing that the person subject to guardianship now had a functioning support system or on proof of the execution of a supported decision making agreement. In 2015, Texas enacted the country’s first law recognizing supported decision making agreements and Delaware has recently enacted a similar law.

Panelists

  • Hon. Francis M. Doherty
  • Robert D. Fleischner
  • Hon. Kristen Booth Glen
  • Hon. Nathan L. Hecht
  • Shira Wakchiang

Co-Sponsors: ABA Section of Civil Rights and Social Justice Disability Rights Committee, ABA Section of Civil Rights and Social Justice Elder Rights Committee

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