New Supported Decision-Making Law in New Hampshire
By Thomas F. Coleman
The State of New Hampshire has just enacted Senate Bill 134 — a supported decision-making (SDM) statute. The law could help some adults with mental or developmental disabilities avoid being placed under an order of guardianship.
A set of legislative “findings” expresses a clear preference by the Legislature for less restrictive alternatives to guardianship to be considered before the state encroaches on an individual’s liberties. One of the findings states: “Supported decision-making is a process which preserves the self-determination of adults with disabilities by providing them with accommodations and supports to enable them to make life decisions.” (For the full text of the legislation, click here.)
The law has some safeguards. There is a provision allowing the person with a disability to choose a financial monitor as a safeguard. There is also a provision that places a duty on anyone who is aware of the SDM agreement to notify state protective agencies if they have cause to believe that abuse has occurred.
The terms of the agreement must be read to the individual or a sign language interpreter must be used. This implies that the individual must understand what they are signing and what they are doing. So the agreement would not be valid for someone with a severe intellectual disability that precludes such awareness and understanding. It would also likely be invalid for someone with serious dementia who, one hour later, would not remember that they signed it. The fact that they have the right to terminate it when they want to implies that they must be able to remember that they signed it. Otherwise, if they could not remember this, how could they terminate it?
With all of these aspects of the law in mind, the risk of abuse or exploitation is minimized.
Whether the courts will honor SDM as a substitute for guardianship remains to be seen. All states have requirements that less restrictive alternatives be considered before courts place an adult into a guardianship or conservatorship. But that requirement is often ignored or glossed over.
Those who wish to consider SDM for themselves or for a loved on should be aware that such an arrangement is not a type of delegated decision-making. It is not like a power of attorney where an adult with capacity delegates authority to another person to make decisions when the adult later becomes unable to do so.
Under SDM, the supporter is not making decisions for the individual with a disability. A supporter is helping the individual make his or her own decisions. So, in the context of medical decision-making, doctors will still need to have a good faith belief that the patient is personally giving informed consent. It is not the consent of the supporter that counts. If the doctor has reason to doubt that the patient personally understands the benefits and risks, then the doctor could be committing malpractice and engaging in an unlawful battery if the doctor performed a procedure without the patient’s own personal informed consent.
The same would be true for banking transactions. A banker would have to believe in good faith that the customer personally understood the financial transaction that he or she was authorizing. If the banker proceeded with a transaction that he or she believed the customer did not personally understand (even with the help of the supporter), the banker could be held liable and perhaps have action taken against not only the banker but also the financial institution by banking regulators.
If properly implemented, the new law could help many adults avoid guardianship and allow them to have decision-making authority over personal and financial matters in their lives – just like everyone else.
Thomas F. Coleman is the legal director of Spectrum Institute – a nonprofit organization promoting guardianship and conservatorship reform, disability rights, and access to mental health care. E-mail: firstname.lastname@example.org Website: https://spectruminstitute.org/