During the 2022 Spring legislative session the Maryland legislature passed a new Supported Decision Making Law that went into effect on October 1, 2022. In this article we’ll discuss the basics of Supported Decision Making under Maryland law, and why this is a great tool for individuals with disabilities and older adults seeking to live independently.
What is Supported Decision Making? (“SDM”)
SDM is a tool for individuals who have disabilities or older adults to be empowered and supported in making their own decisions. This allows them to retain their ability to be in control of their own lives. In reality, SDM isn’t all that different from how many of us make decisions in our daily lives. For example, when evaluating new software for Willow Legal Group we rely on an expert in cybersecurity to review the information security reports regarding the software and help us make a decision on that software. We see this all the time in local Facebook groups with questions regarding recommendations for places to live or new health care providers. SDM allows a person with disabilities or older adult to formalize relationships either through a written or oral agreement and can be used as an alternative to adult guardianship.
Alternatives to adult guardianship are important because guardianship removes an individuals’ independence and basic human rights. If a court appoints someone as your Guardian of the Property or Guardian of the Person that individual is able, with court supervision, to make all of your financial and legal decisions (Guardian of the Property ) and decisions about where you live, your health care, etc. (Guardian of the Person). In a guardianship application the court first looks to any less restrictive means before appointing a guardian. Some of these less restrictive means include a Financial Power of Attorney and Health Care Directive and now may include SDM Agreements.
SDM is not a way for a supporter to make decisions on behalf of a disable person. It doesn’t not give access to an individual’s personal information and does not give a supporter the authority to do what they think is right for the disabled person.
How Does SDM Work?
An individual can enter into formal or informal SDM agreements. Individuals who are identified as people who can help make decisions are referred to as Supporters. An individual can have multiple Supporters for various different situations. For example, an older adult may name a child who is a Financial Advisor as a Supporter related to financial decisions and name a close friend who is a former nurse as a Supporter for medical decisions. Supporters may help gather information, help an individual understand or interpret information, weigh options, understand consequences of a decision, or participate in conversations with third parties but it is important that Supporters remember that they are not the final decision maker.
Under the new law a formal SDM agreement must name at least one Supporter and document how the individual selected the Supporter, describe the decision-making assistance the Supporter may provide, describe how Supporters may work together and describe any potential conflicts of interest and how they might be mitigated. Court approval will be needed, if the individual seeking the SDM agreement already has a guardian the SDM agreement will affect the authority of the guardian. The SDM agreement also may outline the individuals who should not be involved in the decision mankind process. A SDM agreement should have all signatures witnessed.
All Supporters must consent to their role in the agreement. In addition the Supporter must confirm that the individual seeking support does not have a peace order or protective order against the Supporter, the Supporter has not been convicted of financial exploitation and there is no civil or criminal order preventing contact between the Supporter and individual seeking support. Typically a Supporter can end the agreement by providing written notice to the individual seeking support, any other Supporters under the agreement, and any other individuals who have the agreement on file.
The Maryland Judiciary has created a great video on SDM which can be found here. A more detailed presentation on SDM presented by Disability Rights Maryland and the Parents’ Place of Maryland can be found here. If you’re interested in discussing whether SDM may be a useful tool for someone you love we would love to chat with you, schedule a complimentary 15 minute call with us here.