Written By Summer 2021 M-VETS Student Advisor Megan Huppee.

Introduction – What is Supported Decision-Making?

Supported Decision-Making (“SDM”) is an informal or formal way individuals can have trustworthy people help them make decisions. SDM has evolved as one alternative to guardianship.[1] Guardianship is the legal process in which a court determines when a person can no longer make his/her own decisions about his/her person or property.[2] Under a guardianship, certain rights are taken away and exercised by another person.[3] For example, a guardian may decide where an individual can live, what medical treatment he/she receives, with whom that individual associates with, and more.[4] In contrast, SDM allows individuals to make their own choices with the level of support they need and allows individuals to choose a person or people they know to be a part of their support team.

SDM Agreements

SDM agreements are a way to formally document SDM arrangements in writing.[5] An SDM agreement identifies the person or persons who will support an individual with his/her decisions.[6] Agreements may include the roles of the supporters and details about the scope of their assistance, authority, and duties. SDM agreements also outline which information a supporter will have access to.[7] However, not all SDM agreements are the same, and SDM may be used informally or formally.[8] While SDM agreements do not require a written agreement per se, individuals can formalize SDM through an SDM agreement.

While there are different ways to recognize SDM agreements, SDM always (1) recognizes that individuals have the right to make their own decisions; (2) acknowledges individuals enter into SDM agreements without relinquishing the right to make decisions; and (3) accepts that some individuals may need assistance with understanding information to make certain decisions.[9]

States Recognizing SDM Agreements

Only a few states recognize SDM agreements in their state laws. Other states continue to consider codifying SDM agreements or incorporating SDM into other laws without codifying an SDM agreement form.[10] For example, some states specifically require courts to consider and rule out SDM agreements before appointing a guardian.[11] In 2015, Texas became the first state to recognize SDM agreements.[12] Texas defines SDM as “a process of supporting and accommodating an adult with a disability to enable the adult to make life decisions.”[13]

A supporter may never make decisions for the principal decision-maker. Further, some states specify who supporters may not be, while other states do not codify such limitations. Some states prohibit supporters from being a person that provides paid support services unless they are an immediate family member to the principal.[14] Supporters in Alaska may not be an employer or employee of the principal, or someone whom the principal has a protective order or restraining order against.[15] The District of Columbia specifies in more detail who may not be a supporter, but is generally similar to other restrictions.[16] While restrictions and safeguards on who may be a supporter are meant to protect an individual, SDM legislation may also prevent an individual from choosing a supporter he/she prefers or trusts.

State SDM legislation place other safeguards that allow the agreement to be terminated when necessary. For example, in Wisconsin, the agreement is terminated if the supporter is responsible for neglect or abuse or if the supporter has a restraining order against them.[17] Indiana, North Dakota, Texas, Louisiana, and Wisconsin have similar termination triggers.[18]

Most states provide a form for an SDM agreement.[19] In contrast, Indiana does not have a template form but requires certain information to be included in the agreement to be presumed valid.[20] Some states require the agreement to be substantially similar to the codified or administrative form while other states allow more flexibility.[21]

Included in some state SDM forms are additional safeguards against abuse. Some states do not require third parties to honor the agreements if they suspect the supporter is abusing or neglecting the decision-maker. Further, in Texas the SDM agreement form provides a warning statement for third-parties to contact protective service agencies if they suspect a principal is being exploited or abused by their supporter.[22] Similarly, on D.C.’s form, the supporter must affirm he/she will not abuse, neglect, or exploit the principal.[23] Both Texas and D.C. provide contact information for protective services.[24] One caveat of the current safeguards for SDM is there is no ongoing oversight. Unlike guardianship proceedings, SDM agreements are designed to be extra-judicial. Further, third parties accepting the SDM agreement have no significant way of learning about a supporter’s background or treatment.

Recent Virginia SDM Agreement Legislation

In April 2020, Virginia enacted a bill that requires the Department of Health and Developmental Services to assemble stakeholders and study SDM agreements in Virginia. The Department’s research would include recommendations for the use of SDM agreements as a less restrictive alternative to guardianship.[25]

In March 2021, Virginia enacted a bill that directed the Virginia Department of Behavioral Health and Developmental Services to develop and implement a program to educate individuals with intellectual and developmental disabilities and others regarding the availability of SDM agreements and the rights and responsibilities of principals and supporters.[26] Virginia defines an SDM agreement as an agreement that includes the supporter: (1) helping the principal monitor and manage medical, financial, and other affairs; (2) assisting the principal in accessing, obtaining, and understanding information relevant to decision-making; (3) assisting the principal in understanding information, options, responsibilities, and consequences of decisions; and (4) ascertaining the decisions of the principal regarding affairs, assisting in communicating such decisions to other persons, and advocating to ensure the decisions of the principal are implemented.[27]

The Virginia Department of Behavioral Health and Developmental Services’ new program for SDM will include specific training for certain individuals involved in SDM agreements and the development of a model SDM agreement. The bill also requires the Virginia Department of Behavioral Health and Developmental Services to implement safeguards and protocols for addressing abuse and exploitation.[28]

Future Trends in SDM Legislation

While SDM is recognized and codified in many states for individuals with intellectual and other developmental disabilities, it is not limited to any specific disability or diagnosis. SDM also works for older adults with dementia and age-related cognitive decline. Older Veterans may fall into the latter category and may potentially benefit from SDM. Individuals should continue to advocate for states to adopt SDM agreement legislation. However, SDM agreement legislation is not required for SDM to be formally recognized in a state, as evidenced by state courts recognizing SDM. While SDM agreement legislation is not necessary to recognize SDM, legislation is important for advancing recognition of individuals’ power to make decisions. Legislation incorporates certain safeguards to protect principals from being abused or unduly influenced by supporters.

[1] Other alternatives to guardianship include advance directives such as a health care power of attorney, living will or durable power of attorney. Supported Decision-Making, The Arc of Virginia, https://www.thearcofva.org/supported-decision-making.

[2] Id.

[3] Jonathan G. Martinis, Supported Decision-Making: Protecting Rights, Ensuring Choices, 36 Bifocal 107, 108-09 (2015).

[4] National Guardianship Association, Position Statement on Guardianship, Surrogate Decision-Making, and Supported Decision-Making (2016), https://www.guardianship.org/wp-content/uploads/2018/09/SupportedDecision _Making_PositionStatement.pdf.

[5] See Zachary Allen & Dari Pogach, More States Pass Supported Decision-Making Agreement Laws, Bifocal, Vol. 41, Issue 1, (Oct. 1, 2019), https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-41/volume-41-issue-1/where-states-stand-on-supported-decision-making/#:~:text=Supported%20decision%2Dmaking%20is%20often,members%2C%20professonals%2C%20and%20others.

[6] Id.

[7] Id.

[8] Jonathan G. Martinis, Supported Decision-Making: Protecting Rights, Ensuring Choices, 36 Bifocal 107, 109 (2015).

[9] Id. at 109-10.

[10] Some states formally recognize SDM in organ transplantation. See, e.g., S. 792, 435th Gen. Assem., Reg. Sess. (Md. 2015); H.B. 21, 149th Gen. Assem., 1st Year (Del. 2017); H.B. 2343, 87th Leg., Reg. Sess. (Kan. 2017); H.B. 332, 132nd Gen. Assem., Reg. Sess. (Ohio 2017); H.B. 143, 2019 Reg. Leg. Sess. (La. 2019); S.B. 257, 84th Leg., 2nd Reg. Sess. (W.Va. 2020); H.B. 1273, Va. 2020 Sess. (Va. 2020) (Prohibiting discrimination against people based on certain disabilities in the medical context of organ transplantation and identifies SDM services as auxiliary aids and services).

[11] See S.F. 3357, 91st Leg., Reg. Sess. (Minn. 2020); S.B. 806, 99th Gen. Assem., 2nd Reg. Sess. (Mo. 2018); see e.g., Matter of Guardianship of Capurso., 98 N.Y.S.3d 381, 384 (N.Y. Sur. Ct., Westchester Cty. 2019) (granting petition to terminate guardianship in favor of SDM); Matter of Eli T., 89 N.Y.S.3d 844, 849 (N.Y. Sur. Ct., Kings Cty. 2018) (denying petition for appointment of co-guardians in part because SDM was an available option).

[12] Tex. Est. Code Ann. § 1357.002 (West 2017).

[13] Id.

[14] See Alaska Stat. § 13.56.020 (2018); Del. Code Ann. tit. 16 § 9406.

[15] Alaska Stat. § 13.56.020 (2018). See also Del. Code Ann. tit. 16 § 9406; 33 R.I. Gen. Laws § 33-15.3-6(b) (2019).

[16] D.C. Code § 7–2132. D.C. was one of the first to specifically set forth certain crimes that make a person ineligible to be a supporter.

[17] Wis. Stat. Ann. § 52.14(2).

[18] See Ind. Code Ann. § 29-3-14-9 (West 2019); N.D. Cent. Code § 30.2-36.01 (2019); Tex. Est. Code Ann. § 1357.053 (West 2017); Wis. Stat. Ann. § 52.01(6) (2019).

[19] See e.g., Tex. Est. Code Ann. § 1357.056.

[20] Ind. Code Ann. §§ 29-3-14-7(a), 29-3-14-10.

[21] See e.g., Alaska Stat. § 13.56.180 (2018) (stating form must be “substantially similar”); Nev. Rev. Stat. § 162C.200 (listing required elements for a legal agreement rather than a form).

[22] Tex. Est. Code Ann. § 1357.056.

[23] D.C. Code § 7–2132.

[24] D.C. Code § 7–2132; Tex. Est. Code Ann. § 1357.056.

[25] S.B. 585, Va. 2020 Sess. (Va. 2020). Following the first Virginia court order to recognize SDM as an alternative to permanent guardianship, Virginia first ordered a study of SDM within the context of developmental disabilities in 2014. H.R.J. Res. 190, 2014 Leg., Reg. Sess. (Va. 2014) (Requesting the Secretary of Health and Human Resources to examine the use of SDM).

[26] H.B. 2230, Va. 2020 Sess. (Va. 2021).

[27] Id.

[28] Id.