How the Supported Decision-Making Agreement Form Works

What Is a Supported Decision-Making Agreement?

A supported decision-making agreement (SDMA) is a written document in which an individual with a disability (the "Principal") identifies someone he/she wishes to help him/her make decisions or exercise legal rights (the "Supported Decision-Maker"). A Supported Decision-Maker must be 18 years old or older and cannot have been appointed as a guardian/must not have a guardian. The SDMA allows the Principal to pick that person to assist them as they make decisions for themselves.
An SDMA is executed as a form (form link) and must be signed by the Principal as well as the Supported Decision-Maker. It must also have the signatures of two witnesses. There is no particular orientation that the SDMA must have.
The SDMA must encompass all decisions that the Principal has a right to make in Virginia except for the right to marry and to engage in sexual activity. If the Principal wants a Supported Decision-Maker to assist him/her with those decisions, then the Principal will need a power of attorney that allows that specific authority .
The SDMA does not take away any right or authority from the Principal. He/She can still make all decisions independently. The SDMA just gives the Principal a support person who can participate in the process of decision-making. The Principal can designate multiple people to be Supported Decision-Makers but can only have one SDMA at a time. Any of the persons designated as Supported Decision-Makers can view the Principal’s records or finances "for purposes of exercising powers granted under" the SDMA. However, any business or government entity that has a Supported Decision-Maker making decisions for the Principal has "a right to take reasonable steps to verify the authenticity of the document and whether the Supported Decision-Maker is properly authorized." Note: the law does not define what "reasonable steps" mean.
An SDMA can be revoked by the Principal at any time.

Advantages of a Supported Decision-Making Agreement

For individuals who have had to use some form of a substitute decision maker, having the ability to make your own decisions and have those decisions respected is a very real, tangible level of freedom that you will want to retain. One of the key premises underlying the use of a supported decision-making agreement is that many adults, such as seniors and adults with disabilities, have the capacity to make their own medical, legal, financial and lifestyle decisions with assistance and support. This principle seeks to allow adults vulnerable due to age or disability the necessary autonomy to navigate their environment and participate in society as any other individual without such vulnerability might. Supported decision-making is an alternative to substitute decision-making, which takes away the right of an individual to make their own decisions.
By signing a supported decision-making agreement, you remain free to use your own judgement and make your own decisions. There are no "wrong" decisions, only ones that you might not like as much later — that is the adventure of life. Having the ultimate control over your own decision-making also means that substitute decision-makers and others will let your wishes prevail in the end, even if they think a better course of action is to do it differently. A substitute decision-maker, estate trustee, or guardian cannot second-guess the decision. A very important distinction between this agreement and using a power of attorney for property is that you make the decisions in a supported manner but you remain the decision-maker as opposed to giving the decision-making power to someone else, as would be the case under the substituted decision-making model.
As supporters of the individual, you have the ability and training to act on behalf of the individual whether it is assisting with simple daily person or financial decisions or more complex choices. Your role is not to make decisions for the individual. Instead, the individual remains in ultimate control even when you assist in the decision-making process. By acting in this unique way, you add significant value in the life of the individual, such as giving them the ability to remain active and living independently in the community.
When Johnson attended course 101, I was hesitant about the benefits of this course. Now, after attending course 102 and talking to educators, financial advisors, guardianship planners and family care givers it is now clear to me why this is so important. Supported decision making (SDM) is about Mr. Johnson being able to make choices, be independent, live in an apartment and have his rights respected. He wants to be included and empowered. SDM is allowing me to help him achieve his goals without wrestling control from him. Mississauga SDACC is a pioneer in this groundbreaking way of allowing people with disabilities to make their own choices. I have witnessed the joy in Mr. Johnson’s face when he realizes that he is in control of his own life. I have seen the empowerment that occurs when he asks for assistance and chooses what he feels is true. Why wouldn’t we support the SDM Course and help others achieve this? Thank you Mississauga SDACC for giving me an opportunity to help others achieve what I have witnessed.

How to Draw Up a Supported Decision-Making Agreement

Although the form that a supported decision-making agreement must be in is specified in the statute, it’s important to realize that the legal process behind a supported decision-making agreement form is essential for protecting boundaries. For instance, without a legal guardianship there isn’t a way to document restrictions on a person’s power of attorney authority.
So here is a step-by-step way to legally create a supported decision-making agreement form:

• The person who is going to sign the agreement as "the principal" needs to consult with their personal attorney about whether or not to have one of these agreements.
• The principal then goes home & talks to the people he/she wants as "supporters" & asks them if they are willing to participate in a supported decision-making agreement. Not everyone wants to or is going to be supportive of someone else’s choices. The principal also talks to possible "alternative supporters" in case some of his/her first choices decide not to participate. The principal should consult with the legal counsel his/her attorney has on dispute resolution.
• In the written form that is provided by the state, the principal writes the names of his/her "supporters" & "alternative supporters." Each person named as a supporter or alternative supporter signs the agreement.
• Next, the principal has a meeting with his/her supporters & alternative supporters. At this meeting, the principal will explain how he/she wants to make decisions. All of the supporters & alternative supporters will sign the "supported decision-making agreement." If possible, the meeting should be recorded to ensure everyone is hearing exactly what is being said.
• The principal can then ask one of his/her supporters to help draft the "supported decision-making agreement," even if the agreement agreement form he/she chooses is the one provided by the state. (I say "provided by the state" because your attorney can recommend another form, or even a list of forms, that you can use to write your supported decision-making agreement form.)

Formalities for a Valid SDMA

Section 2. Legal Requirements for a Valid SDMA
The following requirements represent the minimal conditions under which an SDMA is valid. In order for an SDMA to be legally binding, it must be in writing and signed by all parties to it. The form of the document depends on the state in which the individual requiring support (the "principal") resides. Many states have specialized forms that include provisions unique to the state and even certain cities within states. For example, in New York City there is a unique Supported Decision-Making Agreement for use in determining eligibility for public assistance.
There are a number of requirements common to all of the state SDMA forms. The workgroup recommends that any SDMA should:
In addition, for a SDMA to be legally enforceable, it must be signed voluntarily, without undue pressure from the principal’s supporters and be clear that the principal understands what he or she is signing.

Duties and Responsibilities under an SDMA

The Supported Decision-Making Agreement Form provides a place to describe the roles of both the individual and the supporter(s) under the Agreement. Allowing the individual to indicate both the role each person will play, and the areas in which those roles will be effective, makes it clear to everyone involved whether the supporter is acting in a supportive capacity, or whether he or she has the authority to make decisions on the individual’s behalf. The individual may choose supporters who will play one of four distinct roles in a supported decision-making Agreement, as described below:

• (1) Supporter. A supporter assists the individual in understanding information, understanding the consequences of decisions, and expressing decisions. A supporter cannot legally make decisions for the individual. That individual always has the right to make his or her own decisions, even when he or she is supported by others.
• (2) Designated Supporter. A designated supporter is authorized to make decisions on the individual’s behalf in a specific situation or situation(s). Designated supporters may be able to make decisions on behalf of the individual even in situations where the individual could potentially make the decisions with support. The ability of the supporter to make decisions on the individual’s behalf must be limited to specific areas or situations. Designated supporters may also include representative payees and representative drivers.
• (3) Supervised Decision-Maker. A supervised decision-maker is authorized to assist the individual in making decisions in specified areas and/or situations . A supervised decision-maker must, however, review the individual’s wishes with the individual. Recognizing that the individual has the ultimate authority both to make his or her own decisions and to reject those of the supervised decision-maker, supervised decision-makers will not have final authority to make decisions in place of the individual. In certain situations, though, the virtually limitless power of a parent or other caretaker to make decisions on behalf of an individual who lacks the decision-making skills necessary to make his or her own decisions can prevent the individual from asserting his or her own judgment. Making changes in circumstances from the long-term care or assisted living facility environment to the individual’s home, or placing a parenting plan in place after a divorce from a supporting individual, or placing the individual in a supported employment program might require limits on the individual’s ability to control decisions over certain areas or with regard to certain behaviors.
• (4) Monitor. A monitor communicates with both the individual and the supporter(s) to ensure that the supported decision-making Agreement is being honored. Monitors also may be asked to communicate with supporters on behalf of the individual, and to communicate with providers to confirm that the right-to-choose and right-to-reject provisions of a supported decision-making Agreement are being observed. Monitors may also be helpful by recommending supports to individuals to help them understand information and explain consequences.

Concerns and Considerations

Challenges and Concerns
Like all legal arrangements, a supported decision-making agreement has the potential to yield unintended consequences. This section focuses on three of these potential pitfalls and aims to offer suggestions to avoid them.
Tension between Beneficiary and Guardian
Beneficiaries of government programs (like Medicaid) may experience tension with an appointed guardian. The beneficiary may fear that the guardian will terminate or reduce eligibility in order to protect their inheritance or will otherwise act contrary to their best interests. To protect against this possibility, the Supported Decision-Making Agreement should be filed with the Petition for Guardianship. This will make for easy reference and access by the judge, attorney, and the GAL.
Focus on Ability Rather than Inability
Noting a person’s deficits can help a supporter and the older adult acknowledge a particular issue, but too much focus on the negative qualities may be harmful to the relationship. Practitioners should use caution and focus on a person’s capabilities rather than highlighting their limitations. Using appropriate language about a capacity issue is important and research has shown that how a mental capacity issue is presented can greatly influence the resulting determination about the ability to make decisions.
Ensure the Agreement is Effective
The Supported Decision-Making Agreement comes with standard terms and recommendations, but this form is flexible. Each agreement must be tailored to meet the unique needs of the individual. For example, the agreement should address what happens when a support provider is unavailable to act temporarily for the individual (e.g., is someone prepared to temporarily take over the role of the unavailability provider or will the individual just need to wait until the unavailability is resolved). The agreement should also ensure that support providers will communicate with each other about their actions on behalf of the individual.

Scenarios and Examples

Case studies or real-life examples where supported decision-making agreements were successfully implemented, highlighting the outcomes
In one family case, a mother and father came to the Supported Decision-Making Alliance to develop a plan for involving their adult son who incorporated some of the adult’s ideas by asking them what he should do. These discussions were facilitated by a Supported Decision-Making Facilitator who would also draft the decision-making agreement documentation they needed. Although they all could be involved in the decision-making process, it was the adult son who needed the final say and the parents needed to respect that. At our last meeting, all three of them agreed that it was helpful to have the checklist developed by the facilitator and that she was in a supportive role as they made decisions together. Signed documentation was completed by the adult son and the parents acknowledging this format for including his input in their family planning.
It was motivating to see the three of them work together with a shared goal. Because of this initial meeting, the adult son asked his parents if he could do a checklist they had been using with a checklist alone next time, without the facilitator present. New styles of decision-making can continue to emerge through practice over time, and this is one example of how it can be done through structured support. This is an ongoing case, now in the follow-up phase.
Another case study she provided discussed a young woman in the US who had autism. In 2008, she was faced with being illegally locked up for being different. She was choked and slammed against a wall for what was thought to be threatening behaviour towards a security guard in a federal building. Her family were concerned about her fate because she was placed into an adult mental health treatment facility in Maryland, USA. The Alliance assisted the family who were trying to communicate with a doctor, but he wouldn’t speak to them . We helped have a conversation with Hiba about the treatment she was receiving, but we did not handle her case as we do not specialize in the medical field. It was not our role to serve as an advocate because we are not lawyers.
She was transferred from Maryland to a new facility in California, where her family could court-ordered visits, with an adult advocate they hired. They were concerned that due to the new facility’s isolation policy, their daughter would continue to regress in treatment as her food was prepared for her, a diet which included fruit smoothies and corn chips. She got very annoyed by the environment, which made her want a 12-gauge shotgun to shoot it all, she said. In conversations with the parent and the young woman, it was clear she was not flourishing with this treatment. With the family’s consent, the Young Women’s group wrote the facility and instructed the adult advocate on how to deal with the situation because the adult advocate was not used to working with individuals with autism. She felt backed into a corner with the director who imposed many restrictions. In order to secure a menu plan for the young woman, with her input, conditions had to be met in the form of a checklist. Some of the items on the list included:
The check list approach did not work until the adult advocate and the family agent for the young woman, worked with the facility director to set up boundaries and goals. Things improved once that was done. The adult advocate and the family agent were able to be taken seriously and participate in the meetings. The legal intervention was key in opening up the dialogue that she was too ill to attend. New laws were proposed to support the student’s rights, including a subsection that says that if a special education student has a disability, it does not mean that they are qualified to not get a diploma. It does not mean that student should not be in Advanced Placement classes, this is a degree level course.