Abstract

States often impose guardianship on people whose disabilities interfere with their decision-making ability, thereby entrusting another person with decision-making on their behalf. People with disabilities, activists, and scholars have critiqued the guardianship system for not doing enough to investigate the actual limitations of those subjected to guardianship and for denying too many of their rights. Guardianship exposes the tension between protecting an individual’s best interests (from the view of the State) and recognizing the right to self-determination and decision-making.

Supported decision-making offers a different approach to balancing the rights of the individual with the State’s obligation to protect people with disabilities. Put simply, the person with a disability retains decision-making authority over their own life and receives any necessary decision-making assistance from others per a voluntary agreement. While advocates initially promoted the model primarily for use by people with intellectual or psychosocial disabilities, there has been a trend to extend its use to other groups, such as older persons and people with dementia.

In light of the growing interest in supported decision-making, this Note examines existing supported decision-making statutes to propose model language that best serves people with disabilities. Part I of this Note provides a brief introduction to medical and legal determinations of capacity or competency. These concepts are necessary to understand the circumstances in which guardianship and supported decision-making agreements apply. Part II of this Note then explores the use and history of substituted decision-making, specifically guardianship, and the subsequent development of supported decision-making as an alternative. Part III delves into an analysis of existing statutes on supported decision-making, considering how each answers several key questions: What is required of the principal to enter a supported decision-making agreement? How does supported decision-making relate to guardianship? What is required of the supporter? And finally, what is the role of the State? Part IV takes up these questions again, but this time proposes model statutory language to suggest how legislatures should answer them to better serve people with disabilities.

Keywords

Disability law, Supported decision-making, Parens patriae, Civil rights, Disability rights, Guardianship, Self-determination, Agency law