By: Stephen R. Elville – Managing Principal and Lead Attorney – Elville and Associates, P.C.
This spring the Maryland General Assembly delivered a long-overdue victory to persons with disabilities across Maryland, one that will forever change countless thousands of lives. Not unlike Rich Strike’s astounding 80-1 odds come from behind heart-stopping victory in the Kentucky Derby, the Supported Decision Making bill, starting at the back of the legislative pack, survived apathy then eventually tough scrutiny, then in an electrifying turn of events and sentiment down the stretch, crossed the finish line with the approval of the Senate and the House, and by default (no veto by Governor Hogan) will become law on October 11, 2022 – all thanks to the proponents of the Bill, including its driving force, Megan Rusciano, Esq., of Disability Rights Maryland, the lawyer whose tireless and long-standing herculean efforts over most of the last decade has now resulted in a landmark change in Maryland law. Congratulations to Megan from all of us at Elville and Associates!
The New Maryland Supported Decision Making law (“SDM”) is simply astonishing considering the huge impact it will immediately make (effective October 1, 2022) and the 180-degree paradigm shift it represents. Not only can the foregoing sentence not be overstated, but nothing this writer can convey here can adequately describe the profound nature of this change and what it represents in terms of its effect(s) on the rights of persons with disabilities in Maryland. Simply put, the new SDM law takes everything we have ever known or become accustomed to about the treatment and consideration of persons with disabilities and their right(s) of self-determination and turns that upside down. If you are reading this article and are a person with disabilities or the parent or other loved one of a person with disabilities, you can now feel free to turn down a glass to mark the beginning of a new era in human rights for your loved one and for the persons (and organizations) like you who support them.
The following is a complete overview of Supported Decision Making, including the highlights of the new Supported Decision Making law. I provide this following information knowing the risk of providing too much information - but with the hope that by doing so you the reader will have the opportunity to realize and appreciate the profound nature of this ground-breaking news.
What is Supported Decision Making (“SDM”)?
- SDM is many things, including the following: a tool where a person with disabilities can be empowered and supported in the process of making their own decisions – to whatever extent possible; a written or oral agreement representing a formalization of authority for the supported decision maker to be recognized as such; an alternative to adult guardianship or a tool to be used as part of adult guardianship; a potential addition to a financial power of attorney and advance medical directive; part of a paradigm shift and a new world of self-determination for the disabled, young or old.
Why was Supported Decision Making needed in Maryland?
- Prior to the passage of SDM, Maryland was behind many states, including its neighbors in Delaware and the District of Columbia, in the sense that there was no good alternative to guardianship versus a power of attorney; no formalized way for a person with disabilities to be supported; no annual review of private guardianships; no clear way for all alternatives to adult guardianship to be explored and implemented; inconsistency in judicial application of existing law; old notions of traditional guardianship were clearly inequitable and no longer needed; and a culture of paternalism and risk minimization was prevalent, thereby hurting the potential of persons with disabilities.
Prior to Supported Decision Making, the following were generally considered the alternatives to guardianship in Maryland (lesser restrictive alternatives).
Guardianship of the property; guardianship of the person; then alternatives to guardianship, including consent orders (settlement agreements) in guardianship proceedings; appointment of financial agents under financial powers of attorney; appointment of health care agents under an advance medical directive; Representative Payees (Social Security); joint ownership of financial assets; surrogate decision making (health care)
Now we are no longer constrained by only this traditional paradigm.
What Supported Decision Making is not:
- SDM is not a financial power of attorney and not a way for a third party to make decisions for a disabled person, and not a mechanism giving authority to a third party to do what they deem appropriate for a person; not a mechanism by which a person with disabilities gives up their rights; and not adult guardianship
By comparison, what is adult guardianship?
- Adult Guardianship is: the removal of a person’s rights to their property (guardianship of the property or estate); removal of a person’s rights to their person - place of abode; health care decisions; right to vote; person has no legal choices; represents the paradigm of protectionism - no recognition of an individual’s right to take risks – fear of and prevention of failure; no review (private guardianships); and an unspoken consensus of permanency.
What is Supported Decision Making as compared directly with guardianship?
- No removal of an individual’s rights; facilitates the potential for restoration of rights (for persons now under guardianship); rights to property and person remain vested in the individual; paradigm of individual risk – person has the right to fail; can be part of guardianship if necessary; an addition to an individual’s financial power of attorney; an addition to an individual’s advance medical directive.
What is the difference between Financial Powers of Attorney and Advance Medical Directives versus SDM?
- In a financial power of attorney and/or advance medical directive, the principal (the individual) appoints an agent who acts on behalf of principal according to the powers provided to the agent; the power of the agent becomes effective as set forth in the document; the agent acts when principal can no longer act for themselves; the agent has fiduciary responsibility and accountability; the authority of the agent can be terminated by the principal in writing; and as mentioned above these documents are substitutes for guardianship of property and person.
- With SDM there is no agency relationship and the power of principal remains vested in them; the principal alone makes decisions (their own) with help from supporting decision maker (the supporter); there is no authority for supporter to act for or on behalf of the agent; the supporter has to be accountable – the extent depends on the jurisdiction; the supporter’s role can be changed or terminated; and SDM is a substitute for guardianship (a new substitute to be added to the list of lesser restrictive alternatives above.
With the above explanations and references as background and context for our new understanding of SDM and how it differs from the old paradigm of guardianship and its alternatives, here are excerpts from the new Supported Decision Making law. I strongly urge you to sit and contemplate this information. As you do, I predict that you will have a series of epiphanies that will collectively result in your amazement at the scope and extent of the change this legislation has brought. As you read, you will realize that like many things that seem to happen overnight, the world has now changed forever concerning the rights of persons with disabilities in Maryland.
Summary/excerpts from the new Maryland Supported Decision Making legislation:
- Supported Decision Making (defined):
- Can be “with or without SDM written agreement”
- Can be a “series of relationships”
- “to make, communicate, or effectuate the adult’s own life decisions”
- Supported Decision Making Agreement (defined):
- Plural - “arrangement with supporter or supporters”
- Describes “how the adult uses SDM to make their decisions”, “rights of the adult”, “responsibilities of the supporter”
- Supporter(defined):
- “individual selected by adult”
- “to provide support”
- “to provide support in making, communicating, or effectuating the adult’s own life decisions
- Purpose
- To assist adults:
- “by obtaining support – in making, communicating or effectuating decisions – corresponding to the will, preference, and choices of the adult”
- To prevent:
- Appointment of substitute decision maker for the adult, including a guardian
- To assist adults:
- Application
- Adult may use SDM to:
- “Increase the adult’s self-determination”
- “Prevent the need for a substitute decision maker” (agent or guardian)
- “Limit of terminate the use of a substitute decision maker”
- ALL adults are presumed capable of making an SDM agreement
- TO BE CONSTRUED LIBERALLY!
- Manner of communication – “not ground for determining the adult’s capability for making, changing, or revoking an SDM agreement”
- SDM agreement cannot be used as evidence of incapacity (no risk in signing), and cannot restrict the adult from acting independently or accessing their personal information
- Guardianship:
- Person under guardianship may enter into an SDM agreement
- Court may limit or remove guardianship due to existence of SDM agreement
- Guardian cannot prevent without “good cause”
- “Support” is defined as:
- Gathering information
- Understanding and interpreting information
- Weighing options
- Understanding consequences pro and con of a decision
- Participation in conversations with third parties
- Providing support to the adult in implementing a decision
- Responsibilities of the Supporter:
- Support the will and preference of the adult – without insertion of supporter’s opinion about reasonableness of the adult’s wishes, preferences, or choices
- Act honestly, diligently, and in good faith
- Act within the scope of the SDM agreement
- Maintain records and make them available regarding:
- Supporter’s actions
- How the adult communicates and expresses opinions
- Records and information obtained
- Maintain safety and security of such records
- Relationship is one of trust and confidence
- A supported decision maker may NOT:
- Make decisions for the adult
- Exert undue influence on the adult
- Coerce the adult
- Obtain information about the adult without the adult’s consent
- Enforce decisions made by the adult outside of the adult’s presence, unless authorized by the adult to do so
- Act outside the authority of the SDM agreement
- Who may NOT be a supporter:
- A minor
- A person against whom the adult has obtained a peace order
- A person who has been convicted of financial exploitation
- Resignation of Supporter:
- Must be orally given or in provided in writing to the adult, and to all other named supporters and third parties who have the Agreement on file
- Authority of supporter ends upon their incapacity or death
- Requirements of Form of SDM Agreement:
- Any form consistent with the Statute is acceptable
- Must be:
- Documented, dated, and witnessed by two adults who are not the supporter, an employee or agent of the supporter
- Name at least one supporter
- Describe the decision-making assistance the supporter (or each supporter) may provide the adult
- Describe how supporters may work together
- Describe any potential conflict(s) of interest and how they might be mitigated
- Requirements of Form of SDM Agreement (cont’d):
- Document how the adult selected the supporter(s)
- Be approved by the Court if adult has a guardian and the SDM agreement affects the authority of the guardian
- Contain an attestation about the adult’s independence in decision making
- Adult can revoke SDM agreement orally or in writing and can obtain support from an individual of the adult’s choosing to revoke the agreement
- Third parties may rely on the SDM agreement in good faith
- Third parties may also decline to comply with an SDM agreement on the following grounds:
- Actual knowledge of invalidity, revocation, or abrogation; or coercion or undue influence of a supporter
- Third parties may be held liable for the following:
- Causing personal injury as a result of negligent, reckless, or intentional acts
- Failing to give effect to an adult’s decision made in accordance with a valid SDM agreement
- Failing to provide information to eh adult or supporter of the adult that would be necessary for informed consent
- Actions otherwise inconsistent with the SDM law
- Adult may use SDM to:
So in summary, how will persons with disabilities benefit from the new Maryland SDM law?
- Persons living with disabilities will no longer be strictly limited by their disability or diminished capacity;
- The new paradigm of risk should encourage the ideal of independence;
- Persons living with disabilities will have new empowerment and recognition of their rights of self-determination;
- There is a new and legally articulated role for supporters;
- A new legal path forward exists – a psychological shift;
- The new SDM legislation is very broad and not limited – it should interpreted and applied as such and never “pigeonholed”;
- For persons living with disabilities, the ideals of independence and rights of self-determination are now not diminished by any real need for guardianship;
- For persons living with disabilities, there are now new protections from and alternatives to guardianship.
Remember that Maryland SDM legislation is extremely subtle, yet powerful. Most importantly, it is not complicated. Perhaps the latter is the most important advice I can provide in this article – that SDM is a simple concept and should not be confused or complicated beyond its simplicity. SDM is simply the idea that persons with disabilities can make their own decisions to whatever degree possible, provided that they have the support to do so.
In closing, sometimes if you live long enough or wait long enough, and if you’re lucky, you witness a miracle, such as the fall of the Soviet Union and the tearing down of the Berlin Wall in 1989; or the first female Speaker of the House of Representatives in 2007; or the election of the first African-American President in 2008; or the nomination of the first female African-American Justice of the Supreme Court in 2022; and now this fulfillment of the United Nations mandate on human rights in the form of Supported Decision Making law for Maryland. Are there unanswered questions about how SDM will work in Maryland? Yes. Are there many questions about supporters and their responsibilities, rights, and liabilities? Are there concerns about the SDM being fully utilized in the years to come so that it is not minimized or pigeonholed into limited use? Yes. Is the SDM law likely to evolve and change over time? Yes. Are there risks? Yes. But as one smiling person with disabilities (who is also a ward under guardianship) recently stated concerning SDM in front of a large event audience where I was the presenter, and I quote, “it’s a start”.
Managing Principal and Lead Attorney Stephen Elville’s work is centered in special needs planning, elder law, and estate planning with special emphasis in the areas of tax planning and asset protection. As a member of the Academy of Special Needs Planners, the National Academy of Elder Law Attorneys, and the National Network of Estate Planning Attorneys, he works to bring peace of mind to clients by creating solutions to their needs through counseling and education using the very best legal-technical knowledge available. He is a seasoned speaker and each year presents at dozens of webinars, workshops, conferences, and continuing education events. Steve has also been named to the Maryland Super Lawyers list seven times, including the past six consecutive years. Steve is also the founder and president of the firm’s charitable organization, the Elville Center for the Creative Arts, in 2014, a 501(c)(3) organization that partners with school music programs and other organizations such as the Annapolis Symphony Orchestra to give the gift of music to children who want to participate in music but don’t have the means to do so on their own. Steve may be reached at steve@elvilleassociates.com, or by phone at 443-393-7696 x108.
