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November 21, 2023

Less Restrictive Options

Guardianship deprives an individual of virtually all legal rights to make decisions and choices. The decision-making ability of persons with disabilities (including older individuals with dementia) is often too quickly questioned and discounted. In many cases, courts appoint guardians for people who could continue to make their own decisions with the right supports and services. The American Bar Association has long been committed to advocating for less restrictive alternatives to guardianship. The ABA Commission on Law and Aging’s PRACTICAL Tool is a guide for lawyers to implement less restrictive decision-making options for persons with disabilities.

Advance Planning

Health Care Decision-Making

Selected Issues in Power of Attorney Law (June 2023)

NCLER Webinar: Drafting Advance Planning Documents

Advance Directives Counseling Guide for Lawyers:  Order a hard copy of the Guide through the ABA Web Store.

The Social Security Administration’s Representative Payee Programs, by Shana Wynn, Bifocal, Vol. 37, No. 3.

The PRACTICAL Tool (2016)

Supported Decision-Making

Traditionally, less restrictive alternatives take the form of surrogate decision-making, with a designated decision-maker making the final decision.

Recently, supported decision-making (SDM) has emerged as a cutting edge alternative to guardianship, placing the individual with a disability at the center of the decision-making process. Supported decision-making describes the process by which most individuals make decisions - by consulting with friends, family, social services, community organizations, and and/or other sources of support to weigh the pros and cons of a decision, review potential outcomes, and finally make a choice. The practice of supported decision-making takes many forms - from recognition of organic decision-making networks to formal, written supported decision-making agreements.

SDM is gaining support among practitioners, courts and state legislatures. It has been recognized and endorsed by the Administration for Community Living of the U.S. Department of Health and Human Services, which funds the National Resource Center for Supported Decision-Making and has gained international recognition, notably in the United Nations Convention on Rights of Persons with Disabilities (CRPD)

Access to Information Under Supported Decision-Making Statutes (July 2022) This chart compares statutory provisions for supporters’ access to the information of adults receiving support (“adults”) under supported decision-making (SDM) agreement statutes. 

Supported Decision-Making: A Statutory Chart (June 2023) This chart examines the definition and description of supported decision-making (SDM) as an alternative to guardianship in state statutes, as well as states with SDM agreement statutes.

Five Ways Lawyers Can Become Industry Thought Leaders by Advising on Alternatives to Guardianship (May 2022)

An issue brief on “Presenting a Defense Against Guardianship Based on Alternatives”, by David Godfrey, Senior Attorney, Commission on Law and Aging (Dec. 2021)

Supporting Decision Making Across the Age Spectrum-Final Report (March 2020)

Supporting Decision-Supports Across the Age Spectrum - Supplemental Materials (March 2020)

  • Role of Decision Supports in Elder Abuse Prevention and Recovery: Explores strategies for determining decision supports for individuals who have experienced abuse, do not have easily identifiable persons to serve as supports, and/or need assistance with building and maintaining a support network. The training looks at various decision-making supports as well as strategies such as direct deposit, automatic payments, representative payees, medical care monitoring, delivery services, and transportation services.

Decision-Making Supports: The Role of the Supporter or Advocate: Explores various decision-making models, tools for advance planning, and the essential role that supporters and advocates have in empowering and enabling decision supports. The presentation shares examples for formal and informal tools to aid in decision-making, including both informal and formal supports.

Advance Planning Basics: An Overview for Advocates: Discusses how advocates can help older adults understand the various types of advance planning tools and how best to choose trusted supporters. It explores common advance planning tools and tools for describing personal values, goals, and wishes, as well as how to share advance care plans when completed and models for connecting older adults to legal assistance.

Overview of Guardianship and Alternatives to Guardianship: Explains how guardianships, and alternatives to guardianship, are created and terminated, and helps lawyers understand the responsibility and authority of agents in various decision-making roles, including guardians, default health care surrogates, health care agents, representative payees, joint account holders, and authorized signers.

Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation: Focuses on the preparation of advance health care directives and powers of attorney, discussing how attorneys can draft these documents in a way that reduces the risk of abuse, exploitation, and guardianship, how they can work with clients to select lower-risk agents, and how they can document and communicate their client’s health care values.