Effective Jan. 1, 2023, California’s Welfare and Institution Law is amended to add new sections 21000 – 21008 enacting the “Supported Decision-making” law (AB 1663 (2022)). [Note: The phrase, “Decision Making” is melded into a single word, “Decision-making”.] Supported decision-making is the centerpiece within the broader AB 1663 (2022) legislation that also reforms California’s Conservatorship law. AB 1663 was co-sponsored by numerous organizations including the ACLU California Action and Free Britney.
Its intent is to reduce how many disabled people are conserved. Conservatorships put a conservator in charge of many aspects of a person’s life and thus take rights and self-determination away.
“Adults with disabilities, including older adults with disabilities, are presumed competent and to have the capacity to make decisions regarding their day-to-day health, safety, welfare, and social and financial affairs, unless otherwise determined through legal proceedings.”
“Supported Decision-making offers adults with disabilities a flexible way to maintain autonomy and decision-making authority over their own lives by developing and maintaining voluntary supports to assist them in understanding, making, communicating, and implementing their own informed choices.” It should reduce the number of conservatorships of disabled persons.
“Supported Decision-making means an individualized process of supporting and accommodating an adult with a disability to enable them to make life decisions without impeding the self-determination of the adult.” It enables disabled persons to seek assistance with managing their day-to-day personal living, health care, financial and legal affairs.
Supported decision-making involves a written “supportive decision-making agreement” that must, amongst other things, include a list of the areas in which the adult with a disability requests support and a list of the areas in which the supporter agrees to provide the support. Such written agreements are another tool, in addition to powers of attorney and advance health care directives as alternatives to conservatorship.
Through supported decision-making a disabled person is entitled to have their “supporters” present in meetings with health care providers, financial planners and attorneys, amongst other professionals, in order for the disabled person, “to understand, make, and communicate decisions and to express preferences, including, but not limited to, medical and financial powers of attorney, authorized representative forms, health care directives, release of information forms, and representative payees.”
Many people, disabled or not, seek assistance with decisions and bring trusted confidants to meetings. What is new, however, is that the disabled person’s legal capacity to make decisions and execute documents will now, “… be assessed with any supports, including supported decision-making, that the person is using or could use.”
It is intended that, “supported decision-making can be a way to strengthen the capacity of an adult with a disability.” Presently, a person’s capacity to understand, communicate, make decisions, and execute documents must be established without the involvement of supports. Attorneys presently often ask other attendees to leave the meeting so that the attorney can engage in a one-on-one discussion with the client to evaluate whether he or she sufficiently understands the available options, opportunities and risks at issue, and also that the client is acting voluntarily. Persons who executed legal documents with questionable capacity may wish to utilize supported decision-making to execute new documents.
It remains to be seen how Supported Decision-making will be implemented in California. Some experienced attorneys have expressed opposition, reservation and concern about whether Supported Decision-making will be more beneficial or more harmful to disabled persons.
The foregoing is a brief discussion of some portions of Supported Decision-making. To read AB 1663 go to www.leginfo.legislature.ca.gov and search for Bill Number “AB 1663” in the 2021-22 Session Year. For legal guidance consult an attorney.
Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.
