October 03, 2019

More States Pass Supported Decision-Making Agreement Laws

By Zachary Allen and Dari Pogach

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 41, Issue 1.)

Supported decision-making is gaining national recognition as an alternative to guardianship, potentially affecting thousands of Americans and their families. Four states this year have passed laws that define supported decision-making agreements as legally enforceable arrangements. They join five other states since 2015 to enact such laws. In a supported decision-making model, individuals with disabilities--whose decision-making autonomy might otherwise be limited or removed--make and communicate their own decisions in any number of informal arrangements, with support from trusted family and friends. A growing number of advocacy groups, social services organizations, and state agencies assist with implementing supported decision-making arrangements by documenting and formalizing the process with supported decision-making agreements.

Supported decision-making agreements laws gain national recognition.

Supported decision-making agreements laws gain national recognition.

Indiana, North Dakota, Nevada, and Rhode Island are the latest states to pass supported decision-making agreement laws in 2019. They follow Texas, Delaware, the District of Columbia, Alaska, and Wisconsin. [1] State laws vary widely on requirements for supported decision-making agreements, including who may serve as a supporter, the role of third parties, and the scope of agreements.

Supported decision-making is often defined as supports and services that help an adult with a disability make his or her own decisions by relying on trusted friends, family members, professionals, and others.[2] . While many individuals will continue to engage in an informal supported decision-making arrangement, others are documenting various provisions in an agreement. These include the names and roles of supporters and details about the scope of their assistance, authority, and duties. Agreements may include whether the supporter has access to confidential information pertaining to the decision-maker. Agreements also typically outline the terms of revocation or termination. 

There is no one-size-fits-all supported decision-making agreements law. States take different approaches to addressing the risk of exploitation or manipulation of decision-makers at the hands of supporters. For example, Texas, Wisconsin, Nevada, and North Dakota place no restrictions on who may act as a supporter. Some states, like Delaware, Alaska, the District of Columbia, and Rhode Island, restrict who may serve as a supporter: employers/employees, anyone against whom the decision-maker has a restraining order, or a person directly providing paid support services to the decision-maker.

Among the advantages of having legally recognized supported decision-making agreements in your state:

  • They can specify the duties of supporters, prohibiting supporters from making decisions on behalf of the decision-maker.
  •  They can indemnify third parties such as financial and healthcare institutions from liability for relying on a supported decision-making agreement and require them to honor supported decision-making agreements.
  • They can provide structure and accountability.

Conversely, there are concerns about supported decision-making agreement laws, including:

  • Supporters could use an agreement to unduly influence or exploit a decision-maker.
  • Supporters could use an agreement to justify their authority to a third party. For example, supporters could insist an agreement provides them with the authority to consent to medical care on behalf of decision-makers. 
  • These agreements may unnecessarily formalize a decision-making model that works better as an informal arrangement.

As supported decision-making agreement laws gain momentum, and recent state laws are likely to serve as models for future legislation, it is important to evaluate whether these laws are effective in promoting supported decision-making -- and supporting individuals with disabilities to make their own choices.

 

[1] See Tex. Estates Code Ann. § 1357, Del. Code tit. 16 § 9401A, Alaska Stat. § 13.56, D.C. Code § 7-2131-2134, Wis. Stat. Ann. § 52, N.D. Cent. Code § 30.2-36.01, Ind. Code Ann. § 29-3-14-1, Nev. Rev. Stat. § 162A, R.I. Gen. Laws §66.13.

[1] Dinerstein, Robert. 2012. “Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision Making.” Human Rights Brief. 19(2): 1-5; Blanck, Peter. and Martinis, Jonathan. 2015. “The Right to Make Choices: The National Resource Center for Supported Decision-Making,” Inclusion. 3(1): 24-33.

For more information, go to our Guardianship and Supported Decision-Making page