May 2022 — 

The MLO Minute: “Getting in the Room: Supported Decision-Making and Related Processes” by Caitlin McAndrews, Esq. — 

Clients with disabilities, particularly young adult clients, frequently ask me about Supported Decision Making (SDM) and how it relates to Powers of Attorney (POAs) and Guardianship. Simply put,

• SDM gets a supporter (who can be a parent, sibling, friend, or other trusted individual) in the “room where it happens” with the client, but the client still makes his or her own decision.
• POAs allow an agent (again, someone the client trusts) to make decisions for the client, without the client. The client retains all decision-making abilities, but he or she shares that power with the Agent, and the client need not be present when the Agent acts on his or her behalf.
• Guardianship removes all decision-making from the person with a disability and puts it in the hands of the guardian.

The “room where it happens” can be a doctor’s office, bank, or benefits office. A Supporter via a SDM agreement can enter these rooms with the client, listen to information, review medical or financial records with the client, and support the client in making a decision.

A client signing a POA gives their Agent specific or general authority to make decisions on the client’s behalf. The client can provide limited or broad authority. A school-aged client might sign an educational POA allowing his parent to attend IEP meetings for him. A wife may sign a health care POA allowing her spouse to access her medical records and consent to procedures if she’s unconscious. A college student studying abroad may sign a financial and legal POA allowing her parents to access her bank accounts and make legal decisions on her behalf while she is out of the country. Many spouses execute broad POAs in favor of each other to make decisions on each other’s behalf. The signer of a POA may revoke it at any time, and a client may sign both a POA and a SDM agreement.

Guardianship removes a person’s decision-making abilities. It too can be limited to only certain decisions, but even limited guardianship takes a specific type of decisions wholly out of the hands of the person under the guardianship. For example, a guardianship covering a person’s finances results in that person not having access to their bank accounts, unable to enter financial transactions or even to write a check. Guardianship of the person allows a guardian to make decisions about where the person under the guardianship lives and how they receive medical treatment. Typically, a person under guardianship cannot sign another agreement such as a POA.

Because each of these processes has its own significant legal consequences, the decision to explore any one of them should be made through discussions with loved ones and consultation with an attorney experienced in these issues. For a consultation on these questions, please do not hesitate to contact our offices.