Supported Decision-Making

Modified from presentation dated 12/13/24:

​

ADULT REPRESENTATION SERVICES

HENNEPIN COUNTY

​

Person Centered Service Provision

2

4

Important TO the Person:

• Relationships
• Hobbies
• Residential choices
• How to spend day
• Providers
• Personal expression: clothing, makeup, etc

Important FOR the Person:

• Health
• Safety
• Policy/law compliance
• Etc.

​

Safety

Safety imbalance/over-emphasis leads to poor quality of life, may lead to “behaviors”, resistiveness

​

Autonomy

Autonomy

Safety

Autonomy imbalance/over-emphasis leads to abandoning patient to their choices and

lack of quality of care

The Right to Make “Bad” Decisions

Guardianship

WHAT IS THE PROBLEM?

Incapacity Timeline

Incapacity Timeline

What is the problem?

• Guardianship:
• Drastic: rights are taken away instead of duplicated
• An ethical issue: removing constitutional right to self-determination / autonomy
• Permanent: only a judge can terminate
• Time Consuming:
• Slow to establish
• Significant time to maintain
• Cost
• Expensive: Must be established by the Court and remains under Court supervision for life.
• Costly to person with incapacity, family, local courts, and society
• Ongoing costs to maintain
• Emotional
• Adversarial process
• For an older adult with dementia the process can be traumatic
• They may not understand what guardianship is
• They may believe they are in trouble with the court
• The process focuses on deficits and problems

​

​

Guardianship/Conservatorship:�When Guardianship Makes Things Worse: Robert A. McLeod

• Guardianship:
• Takes independence from the Ward
• Obligates Guardian to court procedures
• Forces Guardian to address issues Guardian may have had no legal duty to address before with no real power to solve the issues

Guardianship/Conservatorship�When Guardianship Makes Things Worse: Robert A. McLeod

• Guardianship cannot:
• Make disability or illness go away
• Force a Ward to take medications
• Force a Ward to behave in a manner you believe is appropriate
• Force a Ward to live where you have made arrangements for them to live
• Force a Ward to follow the decisions and recommendations you have made
• Force a Ward to receive and cooperate with medical treatment

​

• Guardianship can:
• Allow you to speak to medical professionals about the Ward’s care
• Give you some legal authority to try to prevent bad actors from harming the ward

​

Guardianship/Conservatorship

• Is Guardianship ever necessary? Yes.
• Severe Incapacity
• Incapacity coupled with fighting family members
• Is Conservatorship ever necessary? Yes.
• Stop the Protected Person from being exploited
• Provide oversight and protection for assets

Guardianship Timeline

What Are the Alternatives?

SUPPORTED DECISION MAKING

Let’s Chat

When I have a complicated decision that has me stumped, I typically:

1. Google it, choose what is most often mentioned
2. Talk to my close friends/family to help weigh pros and cons
3. Find someone with experience to tell me what they did
4. All of the above
5. None of the above: I make all of my decisions independently

15

Incapacity Timeline

How Does Supported Decision Making Work?

​

​

​

• Understand we all have the right to make choices �
• Needing help ≠ needing guardianship�
• Work with person to Identify team of “supporters” for current or future

Person May Be a Candidate for SDM

• Recognizes need for help or support
• Has trusted others to form team
• Cooperative and/or open to trusted other’s ideas
• Ideally, able to complete HCD/POA
• Diagnosis

MN Statute:

• § 524.5-102 DEFINITIONS.
• Subd. 16a. Supported Decision Making. “Supported decision making” means assistance from one or more persons of an individual’s choosing in understanding the nature and consequences of potential personal and financial decisions which enables the individual to make the decisions and, when consistent with the individual’s wishes, in communicating a decision once made.

​

Supported Decision Making

• ARS two-part test
• 1. Least restrictive legal option
• 2. Maximum direction from the individual
• Decision-making
• Must be WITH
• Not FOR

​

Supported Decision Making

• Three types of Supported Decision Making: Informal, Contractual, Formal
• Informal
• You are probably already doing this!
• Using simplified plain language to communicate complicated information
• Talking about options
• Talking about safety
• Talking about choice
• Setting up “trial runs”
• Going to the doctor with a family member/friend
• Helping pay bills
• Helping budget money
• Helping go through the mail
• circles of support
• personal board of directors

Supported Decision Making

• Contractual
• powers of attorney
• health care directives
• releases of information
• HIPAA authorization
• representative payee
• joint bank account

​

• Formal
• legislatively recognized supported decision-making agreements
• court endorsed uses of supported decision making
• court protective order

Diagnosis

• Diagnosis does NOT equal guardianship
• We do not do guardianship because of a medical diagnosis
• We do guardianship because of a legal need�
• Diagnosis does NOT preclude less restrictive alternatives
• Attorneys are allowed to independently assess their client’s ability to understand what they are signing.

Incapacitated Person��

• impaired to the extent of lacking sufficient understanding or capacity to make personal decisions

and

• who is unable to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with use of appropriate technological and supported decision making assistance

MN Statute 524.5-102 Subd. 6

​

Capacity is Situational

Capacity is specific to the task. Does the individual have capacity to…. ?

• Sign a Health Care Directive?
• Who do you trust? Who do you want to attend doctor visits with you?  If you ever were too sick to participate, who would you want to talk to the doctor?
• Sign a Power of Attorney?
• Higher level of capacity than Health Care Directive
• Consider level of risk
• What if client wants to name spouse of 50 years?
• What if client wants to name new friend she just met last month?

​

Capacity is Situational

• Consider:
• Are answers to questions consistent?
• Are answers to questions appropriate?
• The client needs to understand the general concept and purpose of the document.
• The client does not need to be able to understand every clause of the document.
• Capacity requires that the client know what they are signing in that moment.

​

What Does SDM Look Like?

Example: managing money

• no one talks about money with the person & person does whatever wants: not SDM�
• someone manages all the person's money, gives no choices about how it's spent: not SDM�
• anything else - opening joint bank account, making a budget together, having a fiduciary who discusses how to spend money: is SDM

​

• (National Resource Center on SDM Brainstorming Guide)

What Does SDM Look Like?

Example: making health care decisions

• person makes own decisions without talking to anyone else: not SDM
• someone else makes all medical decisions for person without discussing preferences/opinions: not SDM
• anything else - attending medical appts. together, explains healthcare choices in plain language, shares access to medical records: is SDM

​

• (National Resource Center on SDM Brainstorming Guide)

ARS and Supported Decision Making

ARS SDM Project

• ARS and Supported Decision Making
• Goal: fewer unnecessary guardianships
• Catch individuals earlier in the guardianship process
• Challenges to SDM
• SDM lack of knowledge by professionals recommending guardianship
• Guardianship is still the only choice many people know about.
• SDM requires presence of supporters in life of individual
• What about individuals who have no available friends/family?
• SDM lacks funding compared to guardianship
• County money is available to serve as guardian, but not as supporter.

​

Hennepin ARS Pre-Petition/Prevention

Hennepin County Adult Representation Services will assist with any of the following legal tools:

• Executing a Health Care Directive;
• Executing a Power of Attorney;
• Executing Release of Information, Psychiatric Advance Directive, or MA authorized representative paperwork; and/or
• Executing Supported Decision-Making Agreement

Hennepin ARS Pre-Petition/Prevention

​

Hennepin County Adult Representation Services

525 Portland Avenue South, Suite 900

Minneapolis, MN 55415

612-348-7012

contactARS@hennepin.us

https://www.hennepin.us/en/adult-representation-services