Supported Decision Making
LauraWaterland, Esq., Community Legal Aid Society, Inc.Lexie McFassel, Esq., Office of the Public GuardianTerriHancharik, Program Director EPIC, Parent-Advocate
Objectives
Understand how Supported Decision Making came about in DelawareKnow the options for Decision Making in DelawareIdentify the difference between Supported Decision Making and other methods of decision-making assistanceDiscuss capacity and who is able to use Supported Decision MakingDescribehow Supported Decision Making works in DelawareDescribe efforts towards use of Least Restrictive Alternatives
Creating Supported Decision Making in Delaware
In 2006, the General Assembly of the United Nations adopted the Convention on the Rights of Persons with Disabilities. The Declaration recognizes the right to autonomy and personal decision making.Article 12 requires Parties to the Convention to “recognize that people with disabilities enjoy legal capacity on an equal basis to others in all aspects of life.. And to take appropriate measures to provide access by a person with disabilities to the support they require in exercising their legal capacity.”Research shows that people with greater self -determination are more independent, more integrated into community life, better able to recognize and resist abuse and tend to have higher self –esteem.( Presentation of MorganWhitlach, Legal Director Quality Trust, June 2018 Presentation)
First Steps
This began a shift in approach to core decision making processes and increasing awareness that guardianship can be over-utilized in the absence of, or ignorance about, alternatives.In 2014/2015, advocates in Delaware serving individuals with disabilities, and specifically the Division of Developmental Disabilities Services (DDDS), organized a working group which met over the course of two years.Advocates included representatives from CLASI, DDDS,DSAAPD, the Developmental Disabilities Council, and the Governors Advisory Council for Exceptional Citizens, among others
Activities of Working Group
The group reviewed statutes from other jurisdictionsOnly Texas had a statute at the timeModel statuteStatutes from British Columbia and AustraliaTechnical assistance from other advocates from ASAN and from Quality TrustNational focus on supported decision makingAdministration on Community Living Initiativehttps://acl.gov/programs/consumer-control/supported-decision-making-programDDC mini grant from Quality TrustABA Publications and Interesthttps://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice/DDC ActivitiesVideohttps://www.youtube.com/watch?v=dGJe5KyflxM&feature=youtu.beSummit April 2016Research Collection
Legislative Process
Many, many drafts, debates about scopeEducation ground workAddressing concernsDelaware Bar Association Elder Law SectionAdvocacy groups representing families of individuals with disabilitiesImportance of viewing SDM as part of a spectrum of possible supportsOther ApproachesPilot programsLitigationMore states are passing laws: Indiana law signed last week
Starting Point
The starting point in the law is a presumption that adults possess the capacity to undertake any legal task they choose, unless they have been adjudicated as incapacitated to perform the task in the context of guardianship.Theabilities that are relevant to a person’s capacity to make reasoneddecisions:Abilityto evidence a choiceAbility to understand relevant informationAbility to appreciate the situation and its likely consequencesAbility to manipulate information rationally.
What is Supported Decision Making?
Supported Decision Making generally occurs when people with disabilities [or others] use friends, family members and professionals to help them understand the everyday situations they face and choices they must make, allowing them to make their own decisions without the need for a substitute decision- maker.(National Council on Disability,Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination for People withDisabilities, March 22, 2018, page 130,https://ncd.gov/publications/2018/beyond-guardianship-toward-alternatives).Link to SDM form in Delaware: https://www.dhss.delaware.gov/dhss/dsaapd/files/supported_decision_making_agreement.pdfMore Information: National Resource Center for Supported Decision Makinghttp://supporteddecisionmaking.org
Spectrum of Capacity
The goal is to determine what the individual is able to do and then use that ability to resolve present and future decision-making challenges.Sooner rather than later.Guardianship should only be sought if there are no possible alternatives.Can they make their own decisions?Do they have a basic understanding of simple documents?Are these abilities increased with supports?
SPECTRUM OF CAPACITY IN DECISION-MAKING
Supported Decision Making v. Other Methods
Supported Decision Makingis process which maintains your individual right to make the decision utilizing assistance. The individual is presumed to have capacity and makes their own decisions.Other Methods:Surrogate Decision Making (even if you choose the surrogate), Durable Powers of Attorney (even if you still have capacity), Advanced Health Care Agreements, and Guardianship give the decision making power to another individual. The other individual makes the decisions for you on your behalf.
Decision making assistance options in Delaware
A person with capacity may use:Supported Decision MakingRepresentative /Substitute PayeeCase/Care Management systemsRelease FormsDurable Power of Attorney/immediate effectA person deemed without capacity may use:Surrogate Decision Making (16 del C. Sec. 2507)Advanced Health Care DirectiveDurable Power of AttorneyGuardianship
All persons are presumed to have capacity and are able to use Supported Decision Making to assist them unless they have been determined to lack capacity.
Delaware SupportedDecision Making
Serves individualswhocan make decisions, but who need or could benefit from assistance in gathering, reviewing, or interpreting informationTherole of the Supporter is to assist the adult in gathering and assessing information, and in evaluating the options, responsibilities and consequences of the adult’s life decisions, including those about health care, financial decisions, and support services.The Supporter is chosen bythePrincipal.The Supporter does not have individual authority to make decisions.Supported Decision Making Agreement must be signed by the adult, two witnesses, and the appointed Supporter.Agreement is executed and witnessed, and indicates what type of assistance is needed and what the supporter has permission to do.May be revoked byindividual.
Elements to a Supported DecisionMakingAgreement
Adultmay enter in to a supported decision-making agreementwhen:Itisvoluntary, in writing , and dated.Theadult understands the nature and effect of theagreement.It designates atleast 1supporter.Identifythe types of decisions for which the supporter is authorized toassist, and which they may not.Theagreement must be signed by each party in the presence of 2 adultwitnesses able to serve under Section 9405(A).Theagreement must be accompanied by a declaration page, signed by eachsupporterand in the presence of witnesses.Declarationpage must contain the supporters relationship to the adult; thesupporter’swillingness to act as a supporter and supporter’s acknowledgement oftheduties of a supporter.Individualswho can serve as a supporter is limited by section 9406A(b)
Surrogate Decision Making
A surrogate may make health care decisions to treat, withdraw or withhold treatment for an adult patient if the patient has been determined by the attending physician to lack capacity and there are no alternatives.This determination shall be confirmed in writing in the patient's medical record by the attending physician.Without this determination and confirmation, the patient is presumed to have capacity and may give or revoke an advance health care directive or disqualify a surrogate. 16Del.C. Sec. 2507
Who can be a Surrogate Decision-Maker?
Thespouse, unless a petition for divorce has been filed;Anadult child;Aparent;Anadult sibling;Anadult grandchild;Anadult niece or nephew;Anadult aunt or uncle.ORAnother adult, other than a paid caregiver, whoexhibits concernfor the patient,isfamiliar with the patient's personalvalues,and who is reasonably available mayact if theadult patient is in an acute care setting or is a client of the Department of Health and Social Services and none of thelisted individuals are eligible or available to act.
Terminating Guardianship
Rule 180-C(b)(1):If the Court finds that a guardiannolonger is necessary due to recovery of capacityof the person with a disability, the Court will make an order terminating the guardianship, restoring to the person with a former disability the care of his or her person or restoring to him or her the property and estate in the custody, possession and control of the guardian, orboth...
Terminating Guardianship
Rule 180-C (b)(2) If the Court finds that guardianship isno longer necessary due to the availability of other measuresand such measures are in the best interest of the person with a disability, the matter may be administratively closed without prejudice. An affidavit shall be filed with the Court specifying the means of substitute decision making to be used, and the consent of the individual responsible for utilizing it.
Terminating Guardianship
Court of Chancery website (guardianship):https://courts.delaware.gov/chancery/guardianship/index.aspxOn the “forms” website there is a form for termination due to recovery.https://courts.delaware.gov/Forms/Download.aspx?id=107108Forms for termination due to other available options:Are not on the Court of Chancery website.
Resources
Ten Myths About Decision-Making Capacity, A Report by the National Ethics Committee of the Veterans Health Administration”, September 2002; National Center for Ethics in Health Care, veterans Health Administration, Dept. of Veterans AffairsCompetency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians" Raphael J. Leo, M.D. Primary Care Companion JClinPsychaitry1:5, October1999Advanced Health Care Directives and Durable Power ofAttorney information:AHCD 16Del.C. 2503,http://www.dhss.delaware.gov/dsaapd/advance1.htmlDPOA, 12Del.C. Sec. 49Ahttp://www.dhss.delaware.gov/dltcrp/poa.html
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