Supported Decision Making for the Elderly and People with Disabilities

By Attorney Isaiah Richie, Schloemer Law Firm, S.C.

In April 2018, Wisconsin lawmakers signed into law a new statute called “Supported Decision-Making Agreements.”  The potential uses for this relatively new law are still being explored, but already we can see a number of ways this law can benefit individuals who may need assistance with day-to-day decision making.  Those people could include individuals with disabilities or elderly individuals and their families.

What is Supported Decision Making

At its most basic level, Supported Decision Making (SDM) is a tool which allows an individual to choose people they trust — known as supporters — to help the individual “gather and understand information, compare options, and communicate their decisions to others” without undergoing a full guardianship proceeding.  In a sense, the SDM law formalizes and gives legal weight to what many people already do intuitively, which is asking advice from those people around them that they trust.  Take for example a person who is struggling with early stage Alzheimer’s and wants her daughter to accompany her to appointments and explain things to her and help her make decisions on treatment and care options.  Or perhaps an adult child with disabilities who would like a parent to accompany them to a meeting with the Social Security Administration to discuss what programs or benefits they might qualify for.

When to use an SDM Form

An SDM form includes a list of the different decisions the individual would like assistance in making, and names the people they trust to help them with those decisions.  The form creates six different categories of decisions which the individual may select to receive assistance in making.  These categories include:

  • Obtaining food, clothing, and shelter.
  • Taking care of physical health.
  • Managing financial affairs.
  • Taking care of mental health.
  • Applying for public benefits.
  • Assistance with seeking vocational rehabilitation services and other vocational supports.

What are the Alternatives?

Guardianships

Generally speaking, there are three methods of assisting an individual who needs help making decisions: guardianships, powers of attorney, and SDM.

Guardianships can be filed by any interested party (usually a family member or close friend or the state), and a court can order certain powers be given to the guardian.  A court can order a guardianship of the “person” which grants the guardian the power to make health decisions and day-to-day living decisions on behalf of the ward.  A court can also order a guardianship of the “estate” which gives the guardian the power to make financial decisions for the person.

A guardianship should be used as a last resort.  It is the most drastic method as it involves legally taking away a person’s rights and autonomy and giving them to another.  It also requires a full court hearing, a guardian ad litem appointment, and expert testimony.  It can be traumatic for the individual who needs assistance, and it can become costly and time consuming.

Power of Attorney
The next method of assisting an individual is through the use of power of attorney forms.  Similar to guardianships, there are two types of powers of attorney.  First, there is a durable power of attorney, which is usually active immediately and which names an agent who can enter into financial transactions on behalf of the individual.  Second, there is a healthcare power of attorney which names an agent who can make healthcare decisions for an individual.  A healthcare power of attorney is not activated immediately and only becomes effective when two physicians or a physician and a psychiatrist determine that the individual no longer has capacity to make decisions regarding his or her healthcare.  Both the healthcare power of attorney and the durable power of attorney must be established by the individual while they are still competent to do so.

SDM Forms
Finally, we have been given the SDM form as a new option in our toolbox.  It may be that a guardianship is not warranted, but the person may not have capacity (or may not want to give up so much control) to do a power of attorney.  It may also be that a person is deteriorating physically and wants assistance, but is not yet at the point where a doctor would activate a healthcare power of attorney.  Whatever the reason, there are a few good reasons why elderly individuals or individuals with disabilities would be better off with a SDM form.

First, it is cheaper and easier to complete than a guardianship. Second, it allows the individual to retain maximum autonomy while still recognizing that they may want to have a supporter in the room with them to help explain things or talk them through difficult decisions.  Finally, it allows a person to maintain their dignity and decision making, while still recognizing that they may need assistance understanding certain things.

The SDM form should be used as a compliment to, rather than a replacement to, power of attorney forms.  There may be many times in which the individual still has capacity and the desire to make a decision for himself or herself, so an agent is not needed yet, but the individual still wants to have a trusted supporter in the room with them to ask questions and explain certain things to them.

Altogether, the SDM is a new tool which we can utilize as part of a comprehensive estate plan to help each individual achieve their personal goals and maximize their freedoms while still receiving the support they need.

If you have any questions regarding Supported Decision Making, or if you would like to know if SDM is right for you or a loved one, contact the author of this article, Attorney Isaiah M. Richie, or one of our Estate Planning attorneys.

Originally published: July 15, 2019.

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Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action.  If you need legal guidance, please contact us at 262-334-3471 or [email protected]