California Supported Decision-Making Act: What You Should Know About It

Dear Readers,

In this edition, we would like to share with you an overview of the California Supported Decision-Making Act (SDM) which went into effect on January 1, 2023, and promises to empower individuals with disabilities, foster self-determination, and reshape the way decisions are made concerning their lives.

Under the law, an “adult with a disability” means an adult with any disability, including an older adult with a disability or age-related disability. Disability includes, but is not limited to, an intellectual or developmental disability, cognitive disability communication disability, psychiatric disability, physical disability, sensory disability, learning disability, dementia, cognitive impairment, Alzheimer’s disease, major neurocognitive disorder, or chronic illness or condition. California Welfare and Institutions Code §21001(a)

1). Understanding the supported decision-making process

Many individuals find themselves confused by large amounts of information and in need of someone to assist them in making a decision. Supported Decision-Making (SDM) represents an innovative approach to decision-making that prioritizes the autonomy and independence of adults with disabilities.

For your convenience, you will find below a synopsis of the key highlights of this legislation:

1-1). Individualized empowerment: SDM is a highly individualized process designed to support and accommodate adults with disabilities in making important life decisions while preserving their right to self-determination.

1-2). Written Agreements: SDM agreements are at the core of this process. As a result, it is important to customize the roles and responsibilities of supporters to match the specific needs and preferences of the individual. The roles and responsibilities must be clearly outlined between the supporter and the disabled adult in a written agreement to ensure all parties understand their parts and to provide a reference point for resolving any disputes or misunderstandings that may arise during the supported decision-making process.

For the record, the California Code Welfare and Institutions Code section 21005 sets out that the following things must be included in the agreement:

"(a) A supported decision-making agreement shall be written in plain language accessible to the adult with the disability and shall include, but not be limited to, all of the following: (1) A list of the areas in which the adult with a disability requests support. (2) A list of the areas in which the supporter agrees to provide the support. (3) The supporter's agreement that they meet each of the requirements specified in Section 21002. (4) Information advising the adult with a disability about their right to file a report under the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11 (commencing with Section 15600) of Part 3 of Division 9), including, but not limited to, Sections 15656 and 15657. (5) Information and copies of other supported or substituted decision-making documents the adult with a disability has in place, including, but not limited to, powers of attorney, authorizations to share medical or educational information, authorized representative forms, or representative payee agreements. (b) A supported decision-making agreement shall be signed by the adult with a disability and each supporter, in the presence of two or more attesting and disinterested witnesses who are at least 18 years of age, or a notary public. The adult with a disability may use reasonable modifications, such as assistive technology or physical assistance, to sign the agreement. (c) A supported decision-making agreement should be reviewed by all supporters and the adult with a disability every two years and updated as needed. An updated agreement shall be signed as required in subdivision (b)." An example of the Supported Decision-Making Agreement can be found on the website of the American Civil Liberties Union (ACLU), by using the following link: https://www.aclu.org/documents/aclu-supported-decision-making-agreement

1-3) Flexibility: SDM agreements are effective until terminated by the person with a disability, supporters, the terms of the agreement, or specific circumstances. Termination can be done orally or in writing.

1-4) Supporters: Supporters can be one or more adults.

2). Supporters’ responsibilities in the supported decision-making process

It is stating the obvious that supporters play a critical role in the SDM process. They must respect the direction, will, and preferences of the person with a disability, honor their values and beliefs, act within the scope of the agreement, act honestly and diligently, and maintain confidentiality.

In practice, while the roles and responsibilities of the supporters may vary depending on the specific agreement and the needs of the individual, here are some common aspects of the supporters’ role:

2-1). Assist with information gathering: Supporters may help gather information related to the decision at hand. This could include researching options, obtaining relevant documents, or explaining information in a more accessible way to the person receiving support;

2-2). Facilitate communication: Supporters often play a crucial role in facilitating communication between the person making the decision and external parties, such as doctors, lawyers, or financial advisors. They can help ensure that the person's wishes and preferences are effectively conveyed;

2-3). Clarify choices: Supporters should assist in clarifying the available choices and their potential consequences. This involves helping the individual understand the pros and cons of each option, which is essential for making informed decisions;

2-4). Provide emotional support: Decision-making can be stressful, especially in complex or emotionally charged situations. Supporters should offer emotional support, reassurance, and a safe space for the individual to express their feelings and concerns;

2-5). Respect autonomy: One of the primary principles of supported decision-making is respecting the autonomy and preferences of the person receiving support. Supporters should ensure that the final decision reflects the individual's wishes, even if they may personally disagree;

2-6). Advocate for the person's interests: Supporters should advocate for the best interests of the individual, as defined by the individual themselves. This means helping the person assert their choices and preferences when dealing with institutions, agencies, or other decision-makers;

2-7). Maintain confidentiality: Supporters should respect the confidentiality of the information shared with them during the decision-making process, except in situations where there is a legal obligation to report abuse or harm;

2-8). Regular check-ins: Depending on the complexity and duration of the decision-making process, supporters may schedule regular check-ins with the individual to ensure that their needs and preferences are still being met and that the process is proceeding as desired;

2-9). Document decisions: It's often a good practice to document the decisions made and the steps taken during the supported decision-making process. This documentation can serve as a record of the individual's choices and the actions taken to support them;

2-10). Terminate support when appropriate: Supporters should be aware of when their support is no longer needed or desired by the individual. The individual should have the ability to end the supported decision-making arrangement at any time;

2-11). If conflicts arise between supporters or between the individual and their supporters, there should be a process in place to address and resolve these conflicts in a way that respects the individual's autonomy.

3). Supported decision-making process versus conservatorship

If you or a loved one are an adult with a disability, this law may offer an alternative to a conservatorship. It may be a new path towards empowerment and greater self-determination. Supported decision-making agreements can provide a framework for making life decisions while preserving independence.

In a nutshell, supported decision-making and conservatorship are two distinct approaches for managing the affairs and decisions of individuals who may need assistance due to incapacity, disability, or vulnerability. Below is a recap of the main differences between the two for informational purposes only.

3-1). Supported decision-making is a person-centered and rights-based approach that seeks to maximize an individual's autonomy and decision-making capacity. It recognizes that individuals with disabilities or impairments can make decisions with the appropriate support. Conservatorship is a legal process where the court appoints a guardian or conservator to make decisions on behalf of an individual who has been deemed incapacitated or unable to make decisions independently;

3-2). Supported decision-making does not require court involvement or the appointment of a legal guardian or conservator. As mentioned above, it is based on a written agreement that outlines the roles and responsibilities of supporters. Conservatorships involve court proceedings and legal orders. A judge grants decision-making authority to the appointed guardian or conservator;

3-2). The person at the center of supported decision-making retains their legal capacity and decision-making authority. Supporters provide assistance and support to help individuals understand and make informed choices in various aspects of their life such as healthcare, finances, housing, and personal matters. In a conservatorship, the individual loses some or all of their legal decision-making authority. The guardian or conservator has the legal authority to make decisions in various areas, such as finances, healthcare, and living arrangements;

3-4). Supported decision-making arrangements can be tailored to the specific needs and preferences of the individual. They can be adjusted or terminated as circumstances change. Conservatorships are often more rigid and less adaptable than supported decision-making arrangements. Changes to the conservatorship usually require court approval;

3-5). The purpose of a supported decision-making arrangement is to preserve the autonomy and self-determination of the individual. Decisions are made by the individual, with supporters providing guidance and assistance as needed. Conservatorships limit the autonomy of the individual, as decisions are made by the appointed guardian or conservator, and the individual's preferences may not always be prioritized.

To conclude, supported decision-making prioritizes the autonomy and decision-making capacity of individuals with disabilities or impairments. It involves providing support and assistance to help individuals make their own choices. In contrast, conservatorship involves the court-appointed decision-making authority and is typically considered a more restrictive measure, used when individuals are unable to make decisions independently and there are no suitable alternatives available. The choice between these approaches should be based on the individual's specific needs and circumstances, and it should always aim to protect their best interests and rights.