New Tool for Supported Decision-Making Strategies

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 40, Issue 6.)

Lawyers and other professionals who assist clients with decision-making arrangements should check out Finding the Right Fit: Decision-Making Supports and Guardianship. Your clients may find this new, free online resource helpful. This training is for friends and family who want to provide support for their loved ones who need help making decisions, for individuals considering what assistance they may need now or in the future, and for named agents in a power of attorney or court-appointed guardians who want to learn more about their role.

Finding the Right Fit was developed by the National Center for State Courts, with assistance from the American Bar Association Commission on Law and Aging, and funding from the Department of Justice Elder Justice Initiative.

Three scenarios

The resource highlights the scenarios of three people:

There’s Sam, an 18-year-old with Down syndrome who wants to make decisions independent of his parents. And Edward, an elderly man with dementia, who is being financially exploited by his sister. Then there’s Maria, who recently had a stroke and is in a coma. She has no advance care planning documents to guide her brother in making medical or financial decisions on her behalf.

Using engaging, interactive activities, users can choose to explore a variety of exercises and presentations, listen to the conversations between a brother and sister when one is the guardian for the other, and view a comprehensive list of outside resources. There’s even an extensive glossary.

Three decision-making tracks

With clear, plain language, the course provides information about three main tracks of decision-making: (1) supporting an individual to make decisions (including supported decision-making), (2) legal options that transfer decision-making authority such as powers of attorney and guardianship, and (3) serving as a guardian. Within each of the three tracks, users can explore subtopics in further depth.

For example, Supporting Decisions discusses the basic process of decision-making, and the cutting-edge decision-making model supported decision-making.

Using Legal Options introduces two major categories of decision-making assistance: healthcare and financial. In this track, users will review important information about informed consent and the legal duties of a fiduciary before choosing a specific option to explore, such as power of attorney or representative payee.

Users already serving as a guardian may choose to start with the obvious choice: Serving as a Guardian, which includes information about the ethical standards of practice for guardians and how to end a guardianship.

Minimizing the risk of exploitation

Finding the Right Fit’s approach to decision-making is nuanced and comprehensive. The course balances two sometimes competing values: (1) protecting the rights of people to make their own decisions and respecting their needs and wants, and (2) addressing the risk of exploitation and harm that comes with all decision-making options.

Legal Options begins with a general definition and discussion of legal options, and then prompts the user to review a “pros and cons” list that will apply to all the legal options in the course. Each major legal option has its own pros/cons list. For example, one of the advantages of a financial power of attorney is that the person can revoke or change it at any time. A disadvantage: the financial power of attorney delegates decision-making authority over an individual’s finances to another person, creating opportunity for exploitation.

The course approaches guardianship with the same balanced approach, presenting it as an option when all other options are unavailable. Users who determine guardianship is necessary can move on to Serving as a Guardian. Again, the training emphasizes that even in this restrictive arrangement, a guardian may be able to support the person in developing their decision-makings skills and making their own decisions.

Finding the Right Fit educates individuals on all their options, empowering users to make thoughtful decisions that meet their needs. Finding the Right Fit: Decision-Supports and Guardianship will be disseminated widely across the country through a variety of state and federal resources.

[This training is not a substitute for legal advice from a licensed attorney.]