Making Sense of Supported Decision-Making Agreement Forms
What Is a Supported Decision-Making Agreement?
What is a Supported Decision-Making Agreement?
Plain and simple, a supported decision-making agreement is a form that allows an individual with a disability (or elderly person), otherwise known as the "principal," to seek support when making their decisions, without diminishing their right to make them. It does not make decisions for the individual , rather it allows them to live independently and means they do not need to seek a guardian’s approval for every decision they make. A supported decision-making relationship is formed when an individual with a disability seeks help to make decisions from a trusted individual, otherwise known as a "supporter" or "support team." The purpose of a supported decision-making agreement is to empower individuals with disabilities to make their own decisions by seeking assistance from individuals they trust. That is where the trained staff at Michigan Advocacy Program comes in.
Core Components of a Supported Decision-Making Agreement Form
A supported decision-making agreement form must include certain crucial components to ensure that it is legally binding and effective. These typically include a clear identification of the parties involved, including the person with a mental or cognitive impairment, the supporter, and any others who may be named in the agreement. Additionally, an explanation of the relationship between the supporter and the person with a mental or cognitive impairment (e.g., friend, family member, etc.), their understanding of what the agreement entails, and the specific areas where support will be provided is essential.
The form should also outline the specific powers being granted to the supporter; a list of any limitations on support; acknowledgment of the confidentiality of the information shared; and the duration of the agreement. Other important items include the authority of the supporter to access personal information, the right of the supporter to terminate or change the agreement at any time, and a description of the required dispute resolution process in the event of a disagreement or the potential for harm.
Understanding these elements and how to incorporate them into an agreement form is essential to creating a functional and legally sound supported decision-making relationship.
Advantages of Supported Decision-Making
Supported decision-making is a powerful liberating tool for many individuals with disabilities, particularly those with cognitive limitations. It allows an individual to maintain autonomy and independence, while ensuring that important decisions are made with the guidance and support of trustworthy individuals.
By using supported decision-making, an individual chooses to be in control of his/her own life, while directly engaging in his/her community in a meaningful way. Many individuals with disabilities feel "forced" into guardianship as the only alternative to a life without any decision-making authority. Supported decision-making is a less restrictive alternative to guardianship, and therefore a better outcome for all concerned. An individual with decision-making capacity cannot be forced into a guardianship.
Research has proven that people with intellectual and developmental disabilities (I/DD) can make complicated decisions for themselves and that support can improve health care decision outcomes of these individuals. In his article "Understanding Supported Decision-Making and Why it Matters," Professor Doron Dorfman explains how these agreements can support an individual in making healthcare related decisions:
Using Supported Decision-Making allows people to access services and make decisions for themselves during their medical visit that was meaningful and reflective of their values and their beliefs. It does not exclude the person with I/DD from being involved in decisions around their healthcare. On the contrary, the person with I/DD is the center of all planning and is actively involved in their medical visit. They do not only agree to what is being proposed to them but can discuss alternatives, voice their concerns, ask questions, and have the confidence to say no just as any other person would who was actively involved in her own medical decisions.
Now is the time to explore this new option and take action on behalf of individuals who would benefit from this type of decision-making.
Legality and Compliance
Although most jurisdictions have enacted laws or regulations specific to supported decision-making, the protection and rights of individuals with impairments generally are governed by additional laws separate and apart from statutes that address supported decision-making as it relates to finance or health care decisions. This is particularly true with respect to personal protections, including, but not limited to, guardianship, power of attorney, and financial and health care decisions. Factors such as the intersection of a supported decision-making agreement with existing statutory rights and protections; implied statutory approvals; appropriateness of guardianship as a substitute for supported decision-making; restrictions on power of attorney; medical treatment , surrogate decision-making, and advance directives; and informed consent may all require consideration when preparing a supported decision-making agreement.
In addition, regulations implementing individual statutes will vary among both jurisdictions and statutes, and may include provisions that differ from statutory language. For example, a statute may provide authority for a supported decision-making agreement to be used for health care decisions subject to certain statutory restrictions, but the regulation may include additional limitations with respect to the scope or specific use of such an agreement. It is important to review the individual requirements and restrictions of each statute to avoid potential problems when implementing those provisions.
Crafting a Supported Decision-Making Agreement
The process of creating a supported decision-making agreement form can be broken down into a few essential steps. The first step is to select a potential supporter or supporters, who must be at least 18 years old and qualified to assist. The next step is to articulate and define the specific areas of support needed by the person with a disability, which will be detailed in the agreement. Finally, the agreement should be formalized through a written, signed, and dated document that includes all parties involved. It is also advisable to have this document witnessed by two witnesses of legal age.
Resources such as the Texas Health and Human Services Commission’s supported decision-making agreement form can be utilized as a guide for drafting. This form includes blank lines where the names and contact information of everyone involved can be written down, as well as the specific kinds of information to be shared. It is important to note that while not all supporters need to agree to participate, all parties should work together to create the agreement that best suits the needs of the individual with a disability and clearly outlines the areas in which assistance is needed. It is suggested that an open dialogue be held between the individual and their chosen supporters to come to a mutual understanding regarding the support to be provided.
For further information on the Texas supported decision-making agreement form, the Texas Health and Human Services Commission provide comprehensive guidelines on how to use their form. This can be found under the "Supported Decision-Making" section of their website. In order to ensure that the supported decision-making agreement is effective, it should be regularly reviewed and updated as necessary, with the involvement of the individual with a disability and their supporters.
Commonly Asked Questions
Q: In simple terms, what is the difference between supported decision-making and substitute decision-making?
A: Supported decision-making allows an individual to make their own decisions with the assistance of supporters. A substitute decision-maker makes decisions on behalf of the individual. Essentially, supported decision-making is about support, where substitute decision-making is about replacing the individual.
Q: What are the main differences between SSA forms and PGT forms?
A: The SSA forms are designed to be completed by the individual and their supporters. Individuals do not sign PGT forms until PGT agrees to become their representative . PGT is then required to have a superior court order in order to consent to an SSA form.
Q: Are there consequences if an agreement is made under circumstances of undue influence?
A: There can be significant consequences if an SSA agreement is entered into under circumstances of undue influence, including a term on the agreement could be void. Individuals should ensure that they understand the terms of the agreement.
Q: Is a healthcare provider legally required to accept an SSA form?
A: No. Individuals can request that a healthcare provider accept an SSA form, but there is no guarantee that the healthcare provider will agree to do so.