26 Aug Supported Decision-Making Explained
by Nick Parker, Attorney, Indiana Legal Services
In July, the state of Indiana passed a new law that recognizes “Supported Decision-Making” as a form of decision-making support. Supported Decision-Making lets anyone in our state take charge of their own decision-making in the form of a helpful life-guiding document, addressing such needs as life goals, health, wellness, financial planning, safety, scheduling, work or school life, and daily decision-making. This “agreement” lays out who can (and cannot) help, what help is needed, and how help is to be delivered. It is a remarkable new concept that is gaining steam across the nation. Now, Supported Decision-Making has come to the Hoosier state.
The purpose of this blog post is to provide some information about the new law and how it changes traditional decision-making laws in our state. This post is not intended to be legal advice- always consult an attorney if you have questions about the law and its application.
Until this year, guardianship through the courts was one of the only ways to assist another person in our state with making decisions. For individuals with intellectual and developmental disabilities, a full guardianship was sometimes not needed nor wanted; though guardianship is appropriate for some, a full guardianship might involve someone giving away too many legal rights and sometimes removing the right to make certain decisions on our own. With the new Supported Decision-Making law, consumers now have new options for receiving support that does not involve going to court or giving up their legal rights. It empowers individual choices while recognizing a need for some support.
At its heart, the new Supported Decision-Making agreements are life-planning documents that are completely driven by a consumer. The individual gets to pick who helps them, what they need help with, and what authority that each supporter has to provide the requested assistance. The new agreements allow for one or more other people to serve as a “team” of supporters to help out with specific decisions. The supporter’s role can be as big or small as the consumer chooses and can cover a wide variety of topics. The individual has the freedom to choose all aspects of the document, and the agreement can be created by the stroke of a pen and amended at any time.
Many are wondering – what is the difference between a Power of Attorney and Supported Decision-Making Agreement? Both are “less restrictive alternatives” to guardianship, meaning they are legally acceptable ways to help with decision-making that does not involve guardianship in court. The difference is in what the documents aim to do. A Power of Attorney and Healthcare Power of Attorney can allow someone to take over key aspects of another person’s ability to make decisions on their own. The new Supported Decision-Making Agreements do not remove any powers from a person to make their own decisions. Therefore, the new Agreements are different from Power of Attorney documents because they help to support, rather than supplant, the decision-making rights of another person. With Supported Decision-Making, the consumer is in control; the agreement they come up with is only as broad as the language in the document. The new agreements also give freedom to address new areas of support that could not previously be addressed by a Power of Attorney, which is restricted in its scope by state law.
Aside from giving a new avenue of support, the new Supported Decision-Making law also puts new duties on an attorney who is filing for guardianship in the courts. The party seeking guardianship must now show that a less-restrictive alternative to guardianship was considered before seeking the guardianship. This can include the Power of Attorney or Supported Decision-Making Agreements, but it can also include HIPAA consents, healthcare representative, technological assistance, and other supports that are not guardianship. If the attempt to use a less restrictive alternative cannot be shown, the guardianship petition could be dismissed. This provides a new level of protection for consumers who might otherwise be subjected to an unnecessary guardianship when something less restrictive was available.
If you or your loved one want to discuss decision-making supports, make sure you reach out to an attorney. An attorney will be best equipped to discuss the possibilities for support and to weigh the pros and cons with you. They can also explain your options and may help draft the documents you need. Always contact on an attorney or other legal professional before filing anything with the court or relying on legal information. If you have questions about Supported Decision-Making, please reach out to the PLAID Partnership for more information.
Nick Parker is an attorney with Indiana Legal Services, a not-for-profit law firm and the largest provider of free civil legal assistance to eligible low-income people throughout the state of Indiana. Nick works with New Hope of Indiana and other disability service providers in Central Indiana through a grant for the PLAID Partnership. Learn more about Nick and the PLAID Partnership here.