Supported Decision-Making (“SDM”) is a recently enacted law in Maryland that passed in 2022. This new law supports individuals living with disabilities and is an alternative to a court guardianship proceeding. The stated purpose is to assist adults “by obtaining support in making, communicating or effectuating decisions corresponding to the will, preference, and choices of the adult.” In short, Supported Decision-Making is the idea that a person with disabilities can make their own decisions to whatever degree possible, provided that they have the support to do so. To properly grasp the significance of this new legislation, it is important to understand the previous laws prior to Supported Decision-Making.
When a person is unable to care for their personal or financial needs because of age, disease, or disability, the court may appoint a guardian. A guardianship is a legal proceeding in which a petitioner (usually a family member or friend) asks the court to find that the “alleged disabled individual” is unable to manage his or her own affairs effectively. The court then appoints someone to act for that person and make decisions affecting his or her health, property, or both. The guardianship process is burdensome, expensive and lengthy. An uncontested guardianship is likely to take 4-8 months and a contested guardianship can result in a jury trial that takes a year or longer. There will generally be on-going reporting requirements to the court.
Prior to October 2022 and the Supported Decision-Making law, the only alternative to a guardianship in Maryland was to execute a property or medical Power of Attorney. This document can only be created if the person has the legal capacity to do so. A Power of Attorney is a written authorization that is signed to allow someone else to act on your behalf. The SDM law does not replace guardianship or a Power of Attorney, but it creates another tool that people can use to make their own decisions.
Supported Decision-Making is important because it reinforces that everyone, with or without a disability, can and should make their own decisions and that some people just need extra support or accommodation to do that. SDM lets a person choose one or more supports to help them better understand and communicate their decisions. SDM gives the option of using a supported decision-making agreement that describes their relationship with their supporter(s) so that other people such as doctors, attorneys, and others recognize their decisions. The decision-making agreement looks at specific situations that are important to a person and sets out the decision-making process relating to each one. SDM will look different for everyone, but some examples of tools might be using plain language or presenting information in visual or audio form. It may provide for extra time to discuss choices, creating lists of pros and cons, and using role playing activities to help the person understand choices. It is not a contract but an authorization and is much easier to understand and execute.
Supported Decision-Marking can help avoid the need for a guardianship altogether or allows people under a guardianship to use supported decision-making to increase their ability and self-determination and could be a tool to change or remove a guardianship. The idea of SDM is fundamentally how all of us, with or without disabilities make decisions, but for people with disabilities, it is now a legally recognized tool to possibly eliminate or limit the need for a guardianship.