Assembly Bill 1663 went into effect on January 1, 2023 amending the California Welfare and Institution Code to add new sections enacting the Supported Decision-making law. The law formalizes supported decision-making in order to reduce the number of people who might otherwise have their rights removed by a conservatorship. What is supported decision-making and how does it work?
Supported decision-making is simply allowing disabled individuals to name trusted advisors (could be family, friends, or professionals) that could assist them in understanding and making decisions. Remember, being disabled does not equivocally mean incapacitated. In addition, there are varying levels of capacity: the capacity necessary for making medical decisions is not the same as the capacity needed to plan and understand legal documents.
Asking advice of friends and family is usually what disabled individuals do, so what is the purpose of making it a law? The new law intends for supported decision-making to strengthen the disabled adult’s capacity. Before the law was enacted, an individual’s capacity was determined without any assistance by outside advisors. Attorneys ask to speak with the disabled individual alone when determining capacity, and doctors see their patients alone when preparing a capacity declaration. The same goes for when a court determines a disabled individual’s capacity – the investigator usually speaks alone to the disabled individual. Under the new law, supported decision-making is a tool that disabled individuals are allowed to use and their capacity will be addressed in light of the use of this tool – meaning their capacity can be greater with the assistance of supported decision-making than it would be without it.
Typically, a court looks for lesser alternatives to a conservatorship, usually a power of attorney for finances and an advanced health care directive. A power of attorney allows a person to authorize another person to act on their behalf. With supported decision-making, the decision-maker allows a person to appoint people they trust to help them make decisions, and the supporters give decision-makers advice, but do not act for them, the decision-maker is the one signing documents. For example, a disabled individual may not have the capacity to sign a power of attorney, but with supported decision-making, they can sign other documents because their capacity is strengthened by being able to ask for advice from their supporters. Alternatively, a supported decision-making agreement and a power of attorney may both be in effect, provided that the decision-maker has capacity to sign the power of attorney, complimenting each other. The agreement details what the supporter will do and the power of attorney gives them any additional authority needed to actually do it. For example, a decision-maker wants her mother to act as a supporter for finances, to write checks for her, and that is detailed in the supported decision-making agreement. The decision-maker also signs a power of attorney giving her mother the authority to write and sign those checks.
An advanced health care directive allows a person to appoint another person to make health care decisions for them. With supported decision-making, it allows the decision-maker to appoint people they trust to help them make decisions – again, giving advice rather than acting for them. Advanced health care directives and supported decision-making can also be complimentary. For example, a decision-maker may name her sister to be a supporter of her health care decisions and the supported decision-making agreement may state that she wants her sister’s assistance in making day to day health care decisions. She might also state that if she ever needs major surgery, she wants her sister to talk to her about it and then the sister makes the ultimate decision, the decision-maker would include this in her supported decision-making agreement, but also sign an advanced health care directive so her sister has the actual authority to make the decision.
A supported decision-making agreement is a private agreement that includes the following:
- Which areas a decision-maker wants support in (financial matters, education, health care, living arrangements.
- Who is chosen to provide that support, and what are the obligations of those supporters (family members or other trusted individuals)
- What kinds of support (gathering information, helping to weigh alternatives or possible consequences, communicating decisions to others; cannot make decisions or sign documents on behalf of decision-maker)
- How the agreement must be written and executed (in plain language or accessible formats, in the presence of two witnesses or a notary public)
- When the agreement needs to be reviewed (every two years) and terminates (can be revoked at any time by the decision-maker)
Supported decision-making should reduce the number of conservatorships over individuals who are not completely incapacitated and just need a little extra help and advice. While we have not seen the implementation in the California courts just yet, the California Court’s website indicates that there is no automatic oversight over a supported decision-making agreement. A supported decision-making agreement would be a tool that families would use in lieu of filing for a conservatorship. Time will tell if a supported decision-making agreement could be used by a proposed conservatee to argue against conservatorship.
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