(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 41, Issue 2.)
By Dari Pogach
The Commission on Law and Aging is at the forefront of a national dialogue between policy makers, advocates, and practitioners about supported decision-making. We draw on our expertise in guardianship reform, health care decision-making, capacity determination, the rights of older adults, elder abuse and undue influence to create useful tools and trainings for practitioners and the public. With our connections in the aging and disability fields, we bring stakeholders together to engage in meaningful conversations about supported decision-making.
Supported decision-making empowers individuals who historically have been denied the right to make their own choices, including people with disabilities and older adults, to make decisions with the support of trusted individuals. Supported decision-making can be an alternative to the most drastic of restrictions on a person’s autonomy: court-appointed guardianship.
New Concept Gains Attention
Supported decision-making, a cutting-edge concept, is one of many ways to provide decision supports to those who need assistance. As this model gains attention in the United States and abroad, its implementation is not uniform. Some decision-makers and their supporters complete a formal written agreement called a supported decision-making agreement. Other individuals use a wide range of decision supports that they do not refer to as supported decision-making, including discussing choices with friends and family or asking a supporter to accompany them to a medical appointment, a financial planning meeting or when consulting a money manager.
The disability rights community, all too familiar with suppression of personal autonomy and the right to make choices, has embraced supported decision-making as a best practice and alternative to guardianship. Recent pilot programs, academic research, and legal advocacy have focused on supported decision-making for individuals with intellectual and/or developmental disabilities.
Advocates for supported decision-making recognize if this model is to become a widespread alternative to court-appointed guardianships, it must also work for older adults with dementia and age-related cognitive decline. As relevant interest groups for older adults join the conversation, they are raising important questions about the potential risks of supported decision-making, such as the potential for a so-called supporter to use his or her role to take advantage of the decision-maker. Choosing a trusted supporter could be challenging for older adults who have lost their families and friends over the years. However, a supported decision-making model could also address issues of isolation, enhancing existing personal connections and forging new ones.
States Consider Agreement Laws
As supported decision-making gains recognition, state legislatures are considering how to incorporate the model into state law. In recent years, several states have defined supported decision-making in statute. Nine states passed laws recognizing supported decision-making agreement as legally enforceable. The Commission tracks these laws in our annual Guardianship Legislation Summary.
While supported decision-making increasingly becomes a viable option for individuals who may have otherwise been appointed a guardian or surrogate decision-maker, there is a critical need for education and training. In 2019 the Commission developed, in partnership with the National Center for State Courts, Finding the Right Fit: Decision-Making Supports and Guardianship, a user-friendly, interactive resource for friends and family who want to provide support for their loved ones; individuals considering what assistance they may need now or in the future; and guardians who want to learn more about their role. Users can learn about supported decision-making through realistic scenarios and plain language explanations.
In addition to developing an online curriculum to reach people across the country, several organizations invited us to speak about a variety of topics relevant to supported decision-making. These include:
• Legislative trends
• Supported decision-making for people with dementia and older adults
• The integral role of supported decision-making and decision supports in the Uniform Guardianship Conservatorship and other Protective Arrangements Act
• How elder law attorneys can use supported decision-making
The organizations with which we shared our expertise include the American Society on Aging, American Psychiatric Association’s Council on Psychiatry and Law and Committee on Judicial Action, Council for Court Excellence, Maryland State Bar Association, National Association of Elder Law Attorneys, North Carolina Rethinking Guardianship, National Resource Center on Supported Decision Making, Puerto Rico Bar Association, and the Virginia Public Guardianship Program.
In 2020 and beyond, supported decision-making will continue to gain recognition as a decision-making model and alternative to guardianship in state law and legal practice for a wide range of individuals. The Commission will continue to play a pivotal role in exploring its application, considering challenging questions, and creating helpful materials for practitioners and the public.
For more information on supported decision-making, go to the Commission online at https://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice/