Alternatives to Guardianship & Supported Decision-Making
Being able to make decisions about your own life is possibly the most basic right we have as humans.
Adult guardianship occurs when a court takes away a person’s right to make their own decisions, and allows another person to make those decisions instead. It should never be used when there is a less restrictive way to support a person labeled with a disability to make their own decisions.
People under guardianship still have rights. They have all of the basic rights under Maine law, and all the rights outlined in the HCBS Settings Rule , and guardians cannot take those rights away.
People under guardianship also have the right to challenge the guardianship, or the guardian’s decisions, in court, and have a right to their own court-appointed attorney to help them.
Supported Decision-Making
Another way that all people can make their own decisions is by using Supported Decision-Making or “SDM.” SDM allows people to have support in making their own choices. The person at the center, called the decision-maker can have people they trust, called supporters, help them make decisions.
The decision-maker can choose who the supporters are, what kind of decisions they want help with, and what they want that help to look like. Decision-making is a skill, and we all get better at making decisions as we are permitted and supported in making them!
There are many other ways to make decisions that are less restrictive than a guardianship, which are outlined below.
Alternatives to Guardianship
Power of Attorney
A Power of Attorney is a document that allows one person (an “agent”) to make certain types of decisions on behalf of another person (the “principal”). The principal signs a document, called the Power of Attorney, to allow the agent to make certain types of decisions for the principal. A Power of Attorney does not take away decision-making authority from the principal; it merely shares the decision-making authority with the agent.
The title “Power of Attorney” can be confusing, because neither the principal nor the agent needs to be an attorney. A Power of Attorney usually authorizes an agent to make medical decisions (called a Healthcare Power of Attorney) or financial decisions (called a Financial Power of Attorney).
A Power of Attorney can be customized depending on when and under what circumstances a principal would like assistance. For example, a principal might only want their agent to be able to make healthcare decisions if the principal is unable to do so themselves. A Healthcare Power of Attorney might specify what kind of end-of-life decisions a principal would like taken if the principal is unable to make those kinds of decisions themselves. In Maine, this is called an Advance Healthcare Directive. Some people also refer to this type of document as a Living Will.
A Power of Attorney is less restrictive than a guardianship because it involves a principal sharing decision-making authority with an agent, whereas a guardianship takes away decision-making authority from one person and transfers it to another. The principal can revoke the Power of Attorney at any time, meaning it can be canceled. Powers of Attorney generally do not require court approval to create or to cancel.
Release of Information
It is against the law for certain types of providers such as medical providers, banks, or schools, to share personal information about their clients with others. Signing a release allows a provider to share information with another person of an individual’s choosing.
For example, a patient may sign a release to allow their doctor to speak to their parents about their health care information. Or, a person may sign a release with their school to share certain information with their parents. A release does not allow the other person to make decisions for the individual; it only allows information to be shared. A release can be changed or revoked by the person at any time by letting the provider know.
Trust
Trusts allow a third party to hold money and assets on behalf of someone else (called a “beneficiary”). There are many different ways to set up a trust, and some are tailored specifically for those with disabilities so as not to impact other benefits. These are called Special Needs Trusts.
Because of the many different ways a trust may be arranged, it is best to speak with a financial manager or an attorney who can accurately assess a person’s needs.
Representative Payee Program
Offered through the Social Security Administration, this program allows a representative to manage a beneficiary’s Social Security or SSI payments. A representative may be responsible for using benefits to pay an individual’s expenses and keeping track of expenditures. Typically a family member or other trusted adult is chosen to act in this role. Alternatively, a representative might be appointed through the Administration.
Assistive Technology
Today, there are more kinds of technology than ever before that can help people be more independent. Some types of technology are very simple, such as devices that help people manage their medication by organizing medication and providing reminders. There is also financial technology that can be automated to help people pay recurring bills, or learn to budget and manage their own money. There is technology to help people communicate and technology to help people with everyday tasks such as cooking. Chances are, if a person needs assistance with a certain task, there is a type of technology that can help that person complete that task independently.
Supported Decision-Making Frequently Asked Questions
Q: What does Supported Decision-Making actually look like?
A: Supported Decision-Making will look different for everyone. It means finding supports to help a person with a disability understand, make, and communicate their own choices. When using Supported Decision-Making, the person can execute a Supported Decision-Making agreement which identifies their method of decision-making. This document can help doctors, bankers, lawyers, and other third parties to understand and accept the decision of the person with a disability.
Q: How is Supported Decision-Making different from a durable power of attorney?
A: A durable power of attorney identifies the person who will be the substitute decision-maker if a person becomes incapacitated. A Supported Decision-Making Agreement identifies the people and tools that will support the person in making her own decisions and it goes into effect as soon as it is signed.
Q: How is Supported Decision-Making different from discussions we have at home with my child with a disability?
A: Many families are already having conversations and using Supported Decision-Making in their everyday life. Helping a person learn decision-making skills by making their own choices with help and guidance is Supported Decision-Making. Most supportive parents are already engaged in Supported Decision-Making with their child.
Q: How is Supported Decision-Making different from full guardianship?
A:
Who makes the decision?
- Guardianship: The guardian makes all decisions about the person’s life.
- Supported Decision-Making: The person uses supports to accommodate any limitations they have in decision-making and makes the final choice about their own life.
What is the role of the court?
- Guardianship: The guardianship and all changes to the guardianship have to through the court. If there is a problem with the guardianship, or if the guardian dies, the court must approve any changes or appointment of new guardians. The court can replace a guardian with someone else if they think it best.
- Supported Decision-Making: The person can change the supports they use anytime they want without judicial intervention and easily add supporters to get the insight of many people.
What are the protections against abuse?
- Guardianship: Typically, only one guardian makes all the decisions and the court generally does not monitor the guardianship in any way after the order is established.
- Supported Decision-Making: There will usually be multiple supporters. They may provide support in different areas (i.e., a parents may help with money, while a friend may help with social decisions); or they may work together to provide support (i.e., two supporters help the person make medical decisions.) Having more than one supporter provides a check against abuse or manipulation. Research shows that individuals who practice decision-making are less likely to be abused due to their comfort level speaking up for themselves.
How are the person’s needs assessed?
- Guardianship: The guardian exclusively determines what the person’s needs are and how to address them without oversight and often without any input from the person.
Supported Decision-Making: The strengths and needs of the person are discussed by the person and their supporters to ensure the person remains involved in all decisions concerning their life and that the identified supports match the person’s abilities as they progress across the course of their life.
Q: What are some examples of tools used in Supported Decision-Making?
A: Examples of tools might be:
- Plain language materials or information in visual or audio form
- Extra time to discuss choices
- Creating lists of pros and cons
- Role-playing activities to help the person understand choices
- Bringing a supporter into important appointments to take notes and help the person remember and discuss their options
- Bill payment tools such as auto-payments or bill management notification apps
- Guardianship Rack Card (PDF)
- Supported Decision Making Rack Card (PDF)
- Debunking Guardianship – Myths and Facts (PDF) | (DOC)
- DRM Webinar – Supported Decision-Making Basics
- Supported Decision-Making: A User’s Guide for People with Disabilities and Their Supporters (PDF) | (DOC)
- A Basic Guide to Self-Advocacy (PDF) | (DOC)
- National Resource Center for Supported Decision-Making
- American Civil Liberties Union Disability Rights Program
- Center for Public Representation Supported Decision-Making Project
- Autistic Self-Advocacy Network (ASAN)
- PRACTICAL Tool for Lawyers: Steps in Supported Decision-Making
- I’m Determined Project
Trainings & Upcoming Events
Systemic Initiatives
“I Don’t Wanna Be So D**n Protected”
Mikala Bolmer, DRM Intern, Student at University of Maine School of Law Britney Spears’ high-profile, protracted, legal battle contesting her conservatorship (known as guardianship in Maine) sheds light on the role of conservatorship/guardianship as an excessive...
This information is provided as background information and is not intended as legal advice. If you are a person with a disability with questions about your rights or if you believe you were discriminated against because of disability, contact Disability Rights Maine at 800.452.1948, by email to advocate@drme.org, or through our online intake form.
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