For some people with disabilities, a guardianship or conservatorship would be overly restrictive.
Supported decision-making can be an alternative to unnecessary guardianships. It allows disabled people to get assistance with decisions while retaining autonomy. In supported decision-making, trusted persons can advise an individual with a disability, while the individual ultimately retains the final decision-making power about their own care and life.
Full or plenary guardianship, in contrast, strips people of significant legal rights. This may include the right to marry and divorce, manage finances, enter contracts, and decide where to live.
Countries such as Sweden and Canada have more robust use of supported decision-making in their health care and legal systems. Yet the United States has growing backing for this less restrictive alternative to guardianship.
The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA) require courts to evaluate supported decision-making as a less restrictive option before appointing a guardian. Beginning with Texas in 2015, 20 states now have laws recognizing supported decision-making.
Supported Decision-Making Agreement
Some states have procedures for creating a Supported Decision-Making Agreement. Even where state law does not provide a framework, individuals can make formal written agreements. When people intend to have multiple supporters, they should prepare an agreement for each individual.
- The Supported Decision-Making Agreement should contain the name of the person who needs support as well as that of the advisor.
- The document can also specify the time period to which it applies or lay out an indefinite duration.
- The agreement should list the types of decisions with which the individual wants help, such as health care, education, and housing decisions.
- The advisor might need to access certain private information.
For instance, if the individual with a disability wants help finding vocational training, education, or employment, the supporter might need to see school records. In addition to the Supported Decision-Making agreement, the person with a disability would need to sign a Family Educational Rights and Privacy Act (FERPA) release to allow the advisor to access school records.
If the individual wants help with medical decisions, the advisor might need permission to see health records. Signing a Health Insurance Portability and Accountability Act (HIPAA) waiver would permit them access to medical information.
As a feasible guardianship alternative, supported decision-making recognizes and protects the autonomy of the person with a disability.
Speak to your special needs planning attorney about establishing a supported decision-making arrangement with a trusted person. An attorney can help you draft the agreement, understand the arrangement, and assist you with executing other necessary waivers, such as those under FERPA and HIPAA.