Supported Decision-Making as an Alternative to Guardianship
Increased Autonomy and Control for the Disabled
Earlier this year, Article 82 of the New York Mental Hygiene Law (Article 82) became law, allowing for supported decision-making in New York. This new law gives intellectually and developmentally disabled individuals new tools to help them live productive and successful lives.
Prior to the passage of Article 82, parents with children who had intellectual or developmental disabilities were mainly limited to seeking guardianship of their child under Article 17-A of the Surrogates Court Procedure Act (Article 17-A). Article 17-A was passed in 1966, and more recently many disability advocates have pressed for alternatives to such guardianships.
Guardianships under Article 17-A
Disability advocates have argued that Article 17-A guardianships are too sweeping in nature, giving almost total control to the guardian over the disabled person’s financial and medical decision-making. Contrasts were often made when comparing the broad powers granted under SCPA Article 17-A and the other New York guardianship statute – New York Mental Hygiene Law Article 81 (Article 81).
Article 81 guardianships are usually put in place for adults and are often used when a family member ages and begins to lose some of their functional capabilities. Under Article 81, however, the person seeking to become guardian (often a spouse or child of the allegedly incapacitated person) must prove that the guardianship is the least restrictive alternative, and the guardianship must be tailored to address the particular needs of the individual based on their functional limitations. Article 81 also mandates that the allegedly incapacitated person be represented by an attorney if they request one.
No such limitations and protections are present in the Article17-A process, which has been a source of concern by not only disability advocates, but also disabled persons themselves and their loved ones. Article 17-A guardianships are generally approved by the court based on the medical testimony of two doctors or a doctor and a psychologist. Over the course of time, alternatives to Article 17-A guardianships have been developed, and one of the more promising is the supported decision-making process.
What is supported decision-making?
In supported decision-making, the disabled person is referred to as the “decision-maker” and they are assisted by “supporters” who help them make decisions regarding their financial affairs and health care. The decisions are made pursuant to a “supported decision-making agreement” (SDMA), which details how the disabled person will work with their supporters to come to decisions regarding their affairs.
What do facilitators do in the process?
A facilitator is a person or entity authorized by the New York Office for People with Developmental Disabilities (OPWDD) to work with and educate a decision-maker and their supporters regarding the supported decision-making process and SDMAs. Within the next year, OPWDD is expected to come out with regulations that will describe more fully the role and responsibilities of facilitators. Generally speaking, the facilitation process should be expected to take several meetings and perhaps a number of months to come to fruition.
What is a supported decision-making agreement?
An SDMA is an agreement signed by the decision-maker and their supporters that details what type of decisions the decision-maker will be assisted with and what the role of the supporters will be in that process. If a facilitator was involved in the agreement, they will also sign the SDMA and they will confirm that the agreement was made in accordance with a recognized facilitation and/or education process. The SDMA must be witnessed by two people or notarized.
What effect does the SDMA have?
If the SDMA is properly drafted and signed by a facilitator, then decisions made pursuant to that agreement by the decision-maker will have the force of law and can be enforced by a court of competent jurisdiction. For example, if a disabled person signs a lease with a landlord, pursuant to such an SDMA, that lease would be a legally enforceable agreement.
What does the future hold for supported decision-making?
Disability advocates hope that supported decision-making will be considered a viable alternative to Article 17-A guardianships. There has been significant discussion about modifications to Article 17-A to make these guardianships less sweeping in scope. We will likely see changes in the future to Article 17-A, which will allow these guardianships to be more tailored to the needs of the individual.
There will likely always be a need for Article 17-A guardianships, especially for individuals who have more severe disabilities. For disabled persons with less severe disabilities, however, supported decision-making may provide the help they need, without the loss of control and autonomy that Article 17-A guardianship can bring.
Supported decision-making cannot be fully utilized to its potential in New York until the regulations in support of Article 82 are promulgated by OPWDD. But in the interim, disabled persons and their families can explore how the process may work for them by discussing options with trusted advisors experienced in this area. If you would like more information on supported decision-making, you can go to the Supported Decision-Making New York website maintained by Hunter College – https://sdmny.hunter.cuny.edu.
Matthew J. Dorsey, Esq. is a Senior Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, New York. Over his twenty-five years of practice, he has focused on the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518) 584-5205, firstname.lastname@example.org and www.oalaw.com.
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