February 12, 2025
Nate Crippes / Public Affairs Supervising Attorney
ncrippes@disabilitylawcenter.org
Andrew Riggle / Public Policy Advocate
ariggle@disabilitylawcenter.org
(801) 363-1347 / (800) 662-9080
disabilitylawcenter.org
Supported Decision-making lets adults with disabilities make their own decisions with the help of people they trust. We all regularly use a similar process to get advice from family and friends. We may ask for help deciding what laptop to buy or whether to repair our car.
20 red and blue states, plus Washington DC, have an SDM law. A person with a disability can formalize how they use SDM in an agreement. They can say what things they want support with – like money, health, education, or housing. They can also say who they want to support them and how they do or don’t want to be supported. A person who can understand information and make and communicate a decision – with or without assistance – can use an SDMA.
With SDM, all decision-making authority remains with the person. A supporter can’t make decisions for or act without the person’s participation. This is what makes SDM and an SDMA different from other alternatives to guardianship. Although, an SDMA can work together with a power of attorney, healthcare directive, or another tool. Either way, a supporter can help a person understand and explore options; explain the risks and benefits of choices; assist with getting information; share ideas; and help communicate or carry out their decision.
All types of people use SDM, including individuals with learning disabilities, intellectual disabilities, mental illness, and those who are aging. While SDM can be and is used now, HB 334 gives a supporter legal status; clarifies what they can and can’t do; and requires third parties like doctors, banks, and record-keepers to accept SDMAs.
If a person has a guardian, they must review and sign an agreement for it to be valid. The bill includes additional protections such as disclosure of an actual or perceived conflict of interest; prohibiting undue influence or deciding on behalf of a person; information access and confidentiality requirements; maintenance of a supporter’s responsibility to report suspected abuse, neglect, or exploitation of a person; and liability protection if a third-party acts on a SDMA in good faith. At the same time, it recognizes we all make mistakes and honors a person’s ability to learn from theirs. In fact, part of a supporter’s role could be to offer guidance through the process.
HB 334 also incorporates the Guardianship Bill of Rights. The courts requested clarity on which rights are waivable. As a result, the legislation identifies the standard under which each waivable right may be modified or denied. Therefore, we believe the bill balances the needs and wishes of individuals and families in a variety of circumstances, whether they are looking to maximize independence, safety, or find a middle ground.
The DLC thinks courts frequently grant guardianship even when options allowing a person to retain all or some of their rights exist. In fact, in its guidance for judges, the Administrative Office of the Courts recommends looking at why an alternative isn’t sufficient or hasn’t worked. Unfortunately, in our experience, this doesn’t often happen. We hope codifying more possibilities, particularly ones allowing a person to exercise more control over their life, will encourage their use.
SDM is an option that promotes independence. A person can ask for help, say “no,” or change supporters at any time. Studies show a person using SDM has greater self-determination, is more likely to identify an abusive situation, and is less likely to experience abuse. Finally, by allowing a person to have more than one supporter, SDM strengthens their ties to the community.
This committee strongly supported SDM last year. Unfortunately, time ran out in the Senate on the final night of the session. Please help us get it over the finish line this year!