Supported Decisionmaking – a new alternative to guardianship
Effective July 1, 2019, Indiana now has the option for supported decisionmaking agreements to be used in lieu of guardianship proceedings for individuals who may need assistance in making certain types of decisions, but do not necessarily require a full guardianship to be established. It allows people with disabilities to maintain some level of a self-directed, independent life.
While, on its face, this seems like a huge step forward in disability rights, there are some lingering issues that will need to be hammered out before these agreements can really begin to make a difference in people’s lives.
Indiana is one of only a handful of states to have legislation authorizing these types of agreements. However, unlike in a number of other states, Indiana has no statutory form. Just as with the power of attorney documents, each supported decisionmaking agreement can be unique. Although this allows customization to make the document suit the situation, it can lead to difficulties in getting the document recognized and accepted. Schools, medical providers, and financial organizations may not see the agreement as a legally binding document.
In addition, these agreements are not a substitute for powers of attorney in the event of an individual’s complete incapacity. Rather, supported decisionmaking agreements are a tool in our toolbox that we can use to help facilitate a more independent lifestyle. Just as with any adult, power of attorney documents for health care and finances should also be executed to provide a decisionmaking chain of command in the event the individual is incapable of making a decision for him or herself.
The framework found at the link below can help start the conversation about supported decisionmaking and guide the creation of the document.
Charting the LifeCourse – Tool for Exploring Decision Making Supports
In addition, other states, such as Maine, Texas, and Delaware have statutory forms that can be used for reference in discussing the agreement. We recommend consulting with an attorney who has experience in special needs planning prior to signing one of these agreements to ensure that it meets all of your needs. If you would like us to review the special needs situation for your loved ones, please call 574.232.3538 to schedule an appointment.
Author: Jennifer L. VanderVeen is a certified elder law attorney (CELA) at Tuesley Hall Konopa, LLP where she counsels clients on long term care planning, Medicare, Medicaid, veterans benefits applications, guardianships, special needs trusts, and complex estate planning issues. Jennifer frequently speaks to community groups on caregiver responsibilities and caregiver burnout.
You can contact Jennifer by calling 574.232.3538 or by email jvanderveen@thklaw.com.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.