A new thing: Supported decision-making
March 1, 2019
I’m not a big fan of the adult guardianship system. I realize it’s necessary; there are a lot of cases in which guardianship or conservatorship is absolutely needed and there isn’t a reasonable alternative.
But there are things that bug me about the guardianship system, and one of them is that it sometimes results in someone who is minimally competent, having a lot of their rights taken away.
The statutes say that if someone needs a guardian, the judge is supposed to leave the person with as much authority over his or her own life as he or she can handle. And I know that the judges who decide these cases usually try to do that. Unfortunately, the laws give the judge only one tool, namely putting somebody else in authority over some aspect of that person’s life. The only choice the judge has is to either impose authority over that person, or leave that person on his or her own.
You’ve heard the saying that if the only tool you have is a hammer, every problem starts to look like a nail? All the judge can do is either use the hammer on that part of the person’s life (for instance finances, housing, or medical decision-making), or decline to do so, in which case the person is on his or her own.
Because of my discomfort with the limitations of the current system, I was quite interested to learn about a new act from the Alaska Legislature, passed just this last year, allowing for “supported decision-making agreements”.
Let’s say you have someone who is minimally competent. With some help, he could make his own decisions, but left on his own he’s going to mess things up pretty badly. If a guardianship is imposed on him, he will lose a lot of basic rights, and may be hampered in his development as a full human being by becoming dependent on someone else to decide everything for him. As an alternative to adult guardianship, he might be persuaded to sign a power of attorney and an advance health care directive, which might give him some sense of control over the situation. But he doesn’t really have that control. He is still not making his own decisions; someone else is making them for him.
But under this new law, he can sign a form, authorizing various people, of his own choosing, to advise and assist him in making decisions. He still retains the final decision-making authority, but he isn’t just left on his own. He has the support network to help.
When I read this new law, my first thought was “What difference does it make? He can ask friends or relatives to help make decisions without needing a form”. But as I thought about it, I realized that I know of many situations where someone was trying to help a friend or family member informally, and wasn’t able to because the person they were dealing with (the doctor, banker, lawyer, etc.) insisted on talking only to that person directly, and did not want another person in the room. Or, that professional would not take a phone call from the helper, because they didn’t want to answer questions unless they were coming straight from the mouth of their client/customer/patient.
With a supported decision-making agreement, the helper is no longer an interloper, interfering in the relationship between professional and client, but an authorized assistant who is expected to be involved. This should make it easier (once people learn about, and get used to, this new law) for friends and relatives to work with the professionals to assist the person.
Philosophically, there is a lot to like here. With the supported decision-making agreement, the affected person gets to make the final decision, so there is a sense of ownership over his own life that may otherwise be taken away by a guardianship, or by complete reliance on a power of attorney and advance medical directive. The person is not losing his rights; he is exercising them by voluntarily signing the agreement. Yet at the same time, he has chosen people to help him navigate the more complicated aspects of life. And if circumstances change, instead of waiting for months to get to court, the person just signs another agreement (or cancels the old one).
A couple of caveats: First, there will be a learning curve. I would wager that only a handful of attorneys even know the new law exists. The learning curve will be even longer with bankers, brokers, medical professionals and others who don’t necessarily spend their days tracking changes in the law. This will lead to frustration, initially, as the helpers try to get the professionals to understand the authority they are given under this new law.
Second, this won’t work for everybody. Obviously it won’t work for people who are completely unable to make decisions at all, such as people who are in a coma, or have serious psychiatric conditions such as schizophrenia. So who is this for?
Most of the advocates for this law, when it was being considered in the legislature, were talking about people with intellectual and developmental disabilities. A few of the witnesses also suggested that it would be helpful for people with progressing dementias such as Alzheimer’s; I’m not so sure about that. In those cases the person is likely to eventually reach a point at which it is not possible to let them make the decisions, either because they have deteriorated too far, or because they have become oppositional or paranoid. I expect that in those cases, trying to persuade the person, while still competent, to sign a power of attorney and an advance health care directive, and making sure that the correct boxes are checked so that both documents can be used immediately, will be a more effective long-term solution.
It’s still early doors for this law, and we’ll have to see how it shakes out in practice. I don’t even know of anyone who has done a supported decision-making agreement in Alaska yet. But there are reports from the few other states which have adopted similar laws, that it has become a useful tool as an alternative to guardianship. And with Alaska’s guardianship system overwhelmed (each public guardian has about 100 cases to manage) and no relief in sight, this new law should be quite welcome.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. Take a helper with you, if you like.