Supported Decision-Making Agreements: A Less Restrictive Alternative to Guardianships
Guardianship is the legal process to determine if a person is “incapacitated.” The court decides if, due to a physical or mental condition, the individual is substantially unable to manage their financial affairs or personal affairs (to provide food, clothing, or shelter for themselves, and to care for their physical health). Under a guardianship, someone is appointed to make decisions on behalf of the incapacitated person. Under a full guardianship of the person, an individual loses many rights, including the right to drive, choose where to live and work, vote, get married, consent to medical treatment, and more.
Supported decision-making is gaining national recognition as an alternative to guardianship. In a supported decision-making model, individuals with disabilities — whose decision-making autonomy might otherwise be limited or removed — make and communicate their own decisions in any number of informal arrangements, with support from trusted family and friends. A growing number of advocacy groups, social services organizations, and state agencies assist with implementing supported decision-making arrangements by documenting and formalizing the process with supported decision-making agreements.
Supported decision-making is often defined as supports and services that help an adult with a disability make his or her own decisions by relying on trusted friends, family members, professionals, and others. While many individuals will continue to engage in an informal supported decision-making arrangement, others are documenting various provisions in an agreement. These include the names and roles of supporters and details about the scope of their assistance, authority, and duties. Agreements may include whether the supporter has access to confidential information pertaining to the decision-maker. Agreements also typically outline the terms of revocation or termination.
We all engage in Supported Decision-Making. We consult with family or friends, colleagues or classmates, mechanics, or mentors before we make decisions. We may seek support to decide whether to go on a blind date, buy a used car, change jobs, renew a lease, or undergo cataract surgery. We confer and consult with others, and then we decide on our own.
Among the advantages of having legally recognized supported decision-making agreements include that:
- They can specify the duties of supporters, prohibiting supporters from making decisions on behalf of the decision-maker.
- They can indemnify third parties such as financial and healthcare institutions from liability for relying on a supported decision-making agreement and require them to honor supported decision-making agreements.
- They can provide structure and accountability.
People with disabilities may need assistance making decisions about living arrangements, health care, relationships, and financial matters. But they do not necessarily need a guardian to make those decisions for them. A trusted network of supporters can field questions and review options to help the person with the disability make their own decisions. Supporters are selected by the person with the disability. They can be family members, co-workers, friends, and past or present providers. The individual should select supporters who know and respect his or her will and preferences, and who will honor the choices and decisions the individual makes.
Supported Decision-Making isn’t amorphous. There is a structure and a process to it. But it’s also flexible and can be adapted to meet an individual’s situation and needs. Guardianships, on the other hand, are very rigid and inflexible. People under guardianship do not have the right to make their own decisions about important matters. A guardian makes choices for individuals about major life issues including personal health care, finances, whether to marry and raise a family, with whom to associate, and other day-to-day decisions.
Though supported decision-making has been gaining a foothold in the United States only recently, this concept has been evolving in other countries for more than a decade. Several countries have long found that everyone – including individuals with disabilities – has legal capacity to make decisions. This concept was further advanced when the United Nations Convention on the Rights of People with Disabilities voted in 2006 to adopt Article 12 which states that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and that “[all] parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”
Supported decision making allows individuals to make their own decisions and stay in charge of their lives, while receiving any support they need to do so. All people need and use support to make important life decisions. Even if a person with a disability needs extra help to make significant life decisions, their right to make their own choices should not automatically be taken away. Other less restrictive alternatives should always be considered first.
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Rachel H. Snead
757-399-7506 | 252-722-2890
Rachel Snead is an associate attorney with Hook Law practicing primarily in the areas of estate planning, estate and trust administration, guardianship and conservatorships, dispute resolution, and fiduciary litigation. To date, she has litigated and settled over 50 matters. She enjoys the diversity of work that elder law provides, and the challenges presented by litigation just as much as she enjoys helping people with creating their unique estate plan and navigating the complex administration of estates and trusts.
A graduate of the University of Richmond School of Law and Virginia Commonwealth University, Rachel is admitted to the Virginia State Bar. She is also a member of the Virginia Bar Association (VBA), the Hampton Roads Estate Planning Council, the Virginia Academy of Elder Law Attorneys (VAELA), and the Virginia Trial Lawyers Association (VTLA).
In 2022 she became a licensed health and life insurance agent and attended the prestigious National Trial Advocacy College at the University of Virginia School of Law where she received intensive hands-on advocacy training.
She has taught multiple continuing legal education courses including, “Getting Started in Elder Law,” “Virginia Probate from Start to Finish,” and “Guardianships and Assisted Decision-Making in Virginia,” and has facilitated sessions for VAELA including “Medicaid & SSI When a Client Owns a Business.” She has also been published on various platforms including T & E Magazine, WealthManagement.com and Age in Action, a quarterly newsletter published by the Virginia Center on Aging and Virginia Department for Aging and Rehabilitative Services.
- Estate Planning
- Estate & Trust Administration
- Guardianships & Conservatorships
- Litigation & Dispute Resolution