By Amy C. O’Hara, Partner

From recent experience in New York guardianship courts on applications where individuals with intellectual and/or developmental disabilities may have some higher functioning capabilities, I find judges are often frustrated with the current 17-A guardianship law as it cannot be tailored to an individual’s needs and supports to enable them to retain certain autonomy and decision-making rights. While we do not have a law in place, judges have been referring certain matters for supported decision-making agreements as a less restrictive alternative to guardianship.

In January, my colleague, Sandi Rosenbaum, wrote an excellent article on supported decision-making which you can find here. The purpose of this post is to provide you with an update on proposed legislation in New York.

Earlier this year, New York State Senator John Mannion introduced a bill that would create statutory authority for supported decision-making agreements by people with intellectual, developmental, cognitive and psychosocial disabilities. The bill passed the Senate with full support from all senators and is now with the New York State Assembly.

The bill identifies supported decision-making as a less restrictive alternative to guardianship and to create additional support and autonomy to individuals needing assistance to make decisions for themselves.

The following is an excerpt of the legislative findings and purpose of the proposed act:

• (A) The legislature finds that a person’s right to make their own decisions is critical to their autonomy and self-determination. People with intellectual, developmental, cognitive and psychosocial disabilities are often denied that right because of stigma and outdated beliefs about their capability. This right is denied, despite the reality that very few people make decisions entirely on their own. Everyone uses supports, as do people with disabilities; who may just need more or different kinds of supports.
• (B) The legislature further finds that the, now well recognized, practice of supported decision-making is a way in which people with disabilities can make their own decisions with the support they need from trusted persons in their lives, and that supported decision-making can be a less restrictive alternative to guardianship. Recognizing that supported decision-making can take a variety of forms, the legislature finds that a more formal process, resulting in a supported decision-making agreement between the person with a disability (the decision-maker) and their supporter or supporters, can provide the basis for requiring third parties, who might otherwise question a person’s legal capacity because of their disability, to recognize their decisions on the same basis as others, and to grant corresponding immunity to such parties when they do so in good faith. When this more formal process is followed, people with disabilities can make choices confident that they will be respected by others and knowing they will be solely responsible for their own decisions.
• (C) The legislature further finds that supported decision-making and supported decision-making agreements should be encouraged for most persons with disabilities, and that the execution of a supported decision-making agreement should not detrimentally impact the eligibility of a person for other services, including adult protective services. At present, the legislature finds there is sufficient evidence of the means of providing support to persons with intellectual and developmental disabilities, as demonstrated, for example, through the recently completed five-year pilot project funded by the New York State Developmental Disability Planning Council, to require third-party recognition of decisions made pursuant to supported decision-making agreements made through a process of facilitation for the decision-maker and their supporters. Where persons with intellectual or developmental disabilities and their supporters receive facilitation and/or education, in accordance with regulations to be drafted by the office for people with developmental disabilities, the legislature will deem them to have legal capacity on a basis equal with all others.
• (D) The legislature also strongly urges relevant state agencies and civil society to research and develop appropriate and effective means of support for older persons with cognitive decline, persons with traumatic brain injuries, and persons with psychosocial disabilities, so that full legislative recognition can also be accorded to the decisions made with supported decision-making agreements by persons with such conditions, based on a consensus about what kinds of support are most effective and how they can best be delivered.

You can read the proposed bill here: Senate Bill S7101 2021-2022 Legislation Session.

Should you have questions regarding the supported decision-making process as an alternative to guardianship do not hesitate to reach out to us. Remember, when your child turns 18 they are legally emancipated in New York and it is important to have protections in place for your child as they attain adulthood. At Littman Krooks we will help you navigate the options best suited for your child.