Alternatives to Guardianship

In addition to the better-known alternatives to guardianship (Powers of Attorney, Healthcare Proxies, Trusts and Special Needs Trusts) supported decision-making is becoming an increasingly favored means to avoid the deprivation of rights that accompanies guardianship for persons with intellectual disabilities.

When parents or others contact an attorney about obtaining guardianship, it is important first to ascertain the reason guardianship is sought; often parents are motivated by having been told by their children’s school or others that it is necessary to obtain guardianship when their child turns 18 in order to continue to participate in her/his IEP. Similarly, they may have been informed that their ability to advocate for benefits is dependent upon becoming guardians. Neither of these is true, and it is important that attorneys make this clear.

In addition to disabusing potential petitioners of unnecessary reasons to seek guardianship, attorneys are well-positioned to encourage the use of supported decision-making, whether informal, or the result of a facilitation process that results in a Supported Decision-Making Agreement (SDMA), to alleviate parental concerns while maintaining all the legal rights of their children.

A useful tool for attorneys who represent potential petitioners is PRACTICAL Tool, available on the ABA website.

How to Represent People Using SDM

If the person has a supported decision-making agreement (SDMA), you should accept it, permit her or his supporters to provide the support[s] described in the SDMA, and honor and respect the choices the person makes with support.

If someone is attempting to bring a guardianship proceeding against the person, and the person has not tried supported decision-making, you should offer it as a less restrictive alternative. Remember that, until a court rules otherwise, every adult is deemed to have full capacity, so if the person with an intellectual or developmental disability is your client, it is your obligation to represent his or her wishes, not what you or others might believe is in his or her best interests.

If the person is currently subject to guardianship and wants to limit or terminate the guardianship and have her or his rights restored, you should consider engaging her or him in a supported decision-making regime which, if successfully completed, should be evidence that guardianship is no longer needed and that the person has the ability, with her or his chosen supports, to make her or his own decisions.

Supported Decision-Making Agreements (SDMAs)

SDMNY has developed a model to facilitate persons with intellectual disabilities to identify areas in which they need support, trusted persons whom they choose to support them, and the ways in which support will be given. Working with the person with intellectual disabilities (who we call “the decision-maker”) and her/his chosen supporters, the facilitator assists them in creating a Supported Decision-Making Agreement (SDMA)which reflects the terms of their agreement.

SDMAs are not currently legally binding in New York as to private third parties such as healthcare providers, financial institutions, landlords, etc., although of course such parties may accept and honor them voluntarily. Legislation is necessary in order to require third parties to accept SDMAs as they would a Power of Attorney, and to relieve them of potential liability. Such legislation currently exists in Texas and Delaware, and a number of other states are actively considering it. One goal of the SDMNY project is to advocate for passage of such legislation in New York.

Persons with Intellectual Disabilities Who Have SDMAs

If a person with intellectual disabilities, not currently under guardianship, enters into a supported decision-making agreement (SDMA) s/he should be able to present it to third parties in order to indicate who her supporters are, and in what way (helping her/him to communicate, receive information, etc.) they are supporting her, and have those third parties deal with her and her supporters as they would with any other competent adult.

At present, third parties are not legally required to accept SDMAs in New York, although there is Supported Decision-Making legislation in other states including Texas and Delaware. A goal of the SDMNY project is to provide an empirical basis for passage of similar legislation, which creates both an obligation on third parties, and a safe haven protecting them from liability.

If a person with intellectual disabilities is currently subject to guardianship, but has gone through the facilitation process developed by SDMNY and entered into an SDMA, it is possible to petition for termination of the guardianship pursuant to SCPA 1759(2) on the grounds that, because of the existence of a supported decision-making regime, as demonstrated by the SDMA, guardianship is no longer necessary or in the person with intellectual disabilities’ best interest. See, e.g. Matter of Dameris