August 01, 2017

Pre-Conference Intensive: Supported Decision Making and Older Adults

by David Godfrey

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 38, Issue 6.)

For the first time since 2010, the National Aging and Law Conference will offer a pre-conference intensive. The program, set for Wednesday October 25, will focus on Supported Decision Making and Older Adults (SDM).
The pre-conference on SDM brings together national experts from the National Support Center on Supported Decision Making, the Burton Black Institute at Syracuse University, the ABA Commission on Law and Aging, North Florida Office of Public Guardian, Inc., and top researchers on these issues. The speakers are a solid mix of frontline practitioners, researchers and advocates. This is an optional session and requires a separate registration of $150.

Lunch, breaks and continuing legal education credits are included in the pre-conference. Attendance is limited to 30 people.
Register here: https://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=280870818

Supported Decision Making (SDM) is based on the premise that all adults, as long as they have the abil­ity to communicate, have the ability—and the right—to make choices. We all engage in SDM. Anytime we ask an “expert” to help us understand an issue and make a recom­mendation, we are engaging in supported decision mak­ing. Depending on our abilities and our experiences, the spectrum of issues for which we seek help will vary. SDM extends this decision-making model to help persons across the spectrum of experience and ability make choices and maintain control of their lives.

SDM is a simple concept that has gained acceptance in the disabilities community over the past few years. It is growing in use in aging services, providing a powerful tool for empowering older adults who are experiencing changes in memory and cognition. SDM also fits well into the type of advance care planning, or planning for incapacity, that lawyers and other advocates engage in with aging clients. The principles of SDM should be integrated into advance care planning documents, such as powers of attorney and appointment of health care surrogates.

Texas and Delaware have passed laws offi­cially recognizing SDM as a potential alternative to guardianship of adults. The statutes urge consider­ing SDM before filing for guardianship. They also create a framework for formal SDM agreements which outline the scope of issues that the person is seeking help with and designate who shall provide that help. SDM agreements are also an excellent place to define the long-term goals and values of the person. We see an increasing role for lawyers and other advocates in creating SDM agreements.

This session will cover the fundamentals of drafting SDM agreements.

How do you know if SDM will work as an alternative to guardianship? Guardianship is increasingly seen as the option of last resort, to be done only when all alternatives have failed. The PRACTICAL Tool handbook has been de­veloped to help advocates review and evaluate SDM based alternatives to guardianship. It includes a check list of steps advocates should review when considering SDM. The steps include: assuming that guardianship is not needed;

SDM is a simple concept which has gained acceptance in the disabilities community over the past few years. It is growing in use in aging services, providing a powerful tool for empowering older adults who are experiencing changes in memory and cognition.

understanding the abilities and needs of the person; indentifying potential advisors, agents or supporters; accessing resources in the community; understanding the challenges of SDM for the individual case; and obtaining guidance on appointing and empowering persons to help. The pre-conference will demonstrate the PRACTICAL tool in detail. Advocates with experience in using SDM to make the case for terminating or modifying guardianship will teach attendees how to do this. Just as SDM is a tool to
avoid guardianship, it is also a tool for ending the need for guardianship. Increasingly, we are seeing SDM as a tool to empower persons with disabilities. As the level of empowerment grows, the need for guardianship decreases. We will cover documenting evidence of successful decision makingwith support, and other indicators of “capacity” and presenting them in court. Because the process for modifying or terminating a guardianship varies from state to state, the session will talk about how to learn about the processes in each state. The Model Rules of Professional Conduct direct attorneys to be zealous advocates for their clients—to the extent possible—and to maintain a normal attorney client relationship with an attorney with a disability and to communicate complex legal issues with our clients in ways that our clients can understand. All of these add up to the ethical obligations of an attorney in working with a client using the principles of SDM. Experts will review how the ethics rules support and require using the principles of SDM when working with clients across the spectrum of experience and ability.

This pre-conference requires separate registration. If you are interested in SDM, or active in SDM, please register and join us on Wednesday October 25th.

David Godfrey, J.D., is a senior attorney to the American Bar Association Commission on Law and Aging in Washington, DC.

by David Godfrey