A new topic in my conversations with proposed conservators is whether a supported decision-making agreement is an option in lieu of filing to be appointed a conservator. As of 2024, the Confidential Supplemental Information form – one of the many court filings for a conservatorship – includes a section where the petitioner must inform the court why a supported decision-making agreement is not appropriate. So, what is a supported decision-making agreement?
The goal of a supported decision-making agreement is to have an alternative to a conservatorship, where appropriate, that provides support when a disabled adult is making decisions about care, finances, and other life decisions. It preserves the autonomy and integrity of an adult with disabilities and avoids the stigma of a conservatorship.
All adults with disabilities are presumed to be competent and have the right to participate in the management of their affairs. A disabled adult is entitled to have supporters present at meetings and discussions and to participate in written communications. A supported decision-making agreement clarifies the rights and responsibilities of a supporter and the disabled adult.
The Welfare and Institutions Code defines a supported decision-making agreement as follows in Section 21003(a):
An adult with a disability may choose to enter into a supported decision-making agreement with one or more chosen supporters. Support may include, but is not limited to, helping the adult with a disability obtain and understand information related to a life decision, communicating the decision to others, and assisting the individual to ensure their preferences and decisions are honored.
The technical requirements of a supported decision-making agreement are:
- It must be a voluntary, written agreement to be reviewed biannually and updated as needed;
- Be signed in the presence of two or more attesting and disinterested adult witnesses or a notary;
- Be written in plain language and may include images or be read aloud or video recorded;
- Include the following:
(a) a list of the areas in which the adult has requested support and that the supporter has agreed to provide;
(b) the supporter’s qualifications;
(c) information about elder abuse remedies; and
(d) copies of other supported or substituted decision-making documents that the adult with a disability has in place, such as powers of attorney or other authorized representative forms.
Since a supported decision-making agreement is like a contract, there are two main parties to it – the disabled adult and the supporter. The supporter must be one or more adults who have not been accused of elder abuse, subject to a protective order or been removed as a conservator and must not have been found liable, in a judicial proceeding, for abuse, neglect, mistreatment, coercion or fraud. The supporter has an obligation to support and implement the direction, will and preferences of the adult with a disability; to respect the values, beliefs, and preferences of the adult with a disability; act honestly, diligently, and in good faith; act within the scope identified by the adult with a disability; maintain confidentiality of any information unless the adult with a disability specifically authorizes its disclosure; not coerce an adult with a disability without legal authorization to do so; and observe all existing obligations and prohibitions otherwise applicable by law that protect adults with disabilities and elderly from fraud, abuse, neglect, coercion, or mistreatment.
A supported decision-making agreement can be terminated by either party orally or in writing at any time. Or the agreement itself can provide when it terminates such as on the death of the disabled adult.
Besides the written supported decision-making agreement, there is also the right of a disabled adult to have another adult present in communications. There is an exception for a third party to refuse this right if there is a reasonable belief that fraud, coercion, abuse or some other elder or dependent adult abuse occurring between the supporter and the disabled adult.
If you are considering petitioning to be appointed the conservator of a disabled adult in California, it is important to first consider whether a supported decision-making agreement is a viable alternative to a conservatorship. The California Courts Self Help page – https://selfhelp.courts.ca.gov/options-help-someone-impairment-or-disability – has a discussion regarding supported decision-making agreements with links to other sources.