Supported Decision-Making is gaining traction as a tool to promote the retention of decision-making rights for some people with disabilities who might otherwise be the subject of a guardianship proceeding. As of May 5, 2018, the D.C. Disability Services Reform Amendment Act of 2018 became effective, allowing a person who needs assistance with decision-making to enter into a Supported Decision-Making Agreement (“SDMA”) with a trusted person, called a “supporter.” An SDMA avoids guardianship for a person who is able to make certain decisions, for example certain medical, financial, or educational decisions, on his or her own with help from someone else. The supporter could be a friend, family member, or other trusted person. The crucial difference between supported decision-making and guardianship is that the person receiving assistance retains their own decision-making authority. The supporter is not making the decision. The supporter is facilitating the decision-making process by helping the person communicate or process information. The SDMA allows the supporter to receive certain information that would otherwise be provided only to the person needing assistance.
The statute contains rules about who may act as a supporter, the types of decisions that can be supported, the duration of the agreement, how the agreement should be executed, and how the agreement should be terminated. A form for the agreement can be found at: https://code.dccouncil.us/dc/council/code/titles/7/chapters/21B.
It is important to note that an SDMA is not an appropriate tool for everyone or every decision. There are many people who could benefit from an SDMA, though, and as a guardianship petition often requires that the court consider whether less restrictive alternatives have been considered, the availability of SDMA as an option will at least prompt further discussion about the significant rights that are surrendered as a result of a guardianship. Neither Maryland nor Virginia presently have a supported decision-making statute, but there are efforts in both states to build support for supported decision-making legislation.
If you have questions about SDMA, Guardianship or any other Family Law issue please contact Catherine H. “Kate” McQueen at (240) 507-1718 or firstname.lastname@example.org.
ABOUT KATE MCQUEEN
Catherine H. “Kate” McQueen is a family lawyer and principal in Offit Kurman’s Bethesda office and is licensed to practice in Maryland, Virginia, and the District of Columbia. Ms. McQueen focuses her practice on the many legal issues that impact families, including all the issues arising out of a divorce, such as custody, child support, alimony, and other financial and property issues. She also has extensive experience in guardianship matters for children and incapacitated adults, including assisting clients in petitioning for guardianship, serving as court-appointed counsel for alleged disabled persons, and serving as court-appointed guardian for individuals when their family members or friends are unwilling or unable to do so.
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