COFAR blog

A little-known provision in proposed Supported Decision Making (SDM) legislation would impose an additional burden of proof on persons petitioning in probate court to become guardians of their loved ones with intellectual or developmental disabilities (I/DD) in Massachusetts.

That is one of several concerns that COFAR has raised with two committees in the state Legislature that are considering bills to authorize SDM as a potential replacement for guardianships.

Two nearly identical SDM bills have been filed in the House and a third in the Senate this year (H.201, H.1485, and S.109). As we reported, the House bills were mistakenly referred to separate legislative committees – the Children, Families, and Persons with Disabilities Committee and the Judiciary Committee.

We have contacted both committees to suggest changes to the bills, and to urge that both committees consider a single bill rather than separate bills.

SDM involves enacting written agreements to replace guardians of persons with I/DD with informal teams of “supporters” or advisors. We have long raised concerns that while SDM may be appropriate for high-functioning individuals, it may expose lower functioning persons to financial exploitation and reduce the input family members have over their care and services.

Additional burden of proof

One of our key concerns about the SDM bills is that while proponents of the legislation tout SDM as an informal process that doesn’t require persons to go to court to enact SDM agreements, the legislation would actually increase the burden in court on those seeking to become guardians.

A little-discussed provision in each of the bills states that in applying or petitioning for guardianship in probate court, persons must state whether they have considered SDM as an “alternative to guardianship,” and why SDM would not be “feasible… or would not avoid the need for guardianship.”

We advise families that guardianship is vitally important in advocating effectively for loved ones with cognitive disabilities that are severe enough to prevent them from fully appreciating the decisions that they make. Without guardianship, family members often find they have little say over the care and services of their loved ones.

The provision in the SDM legislation requiring petitioners for guardianship to demonstrate why SDM is not feasible or not superior to guardianship is, we think, the most radical aspect of the proposed legislation, and is one that we are strongly urging each committee to remove from the bills.

We think the provision would predispose probate court judges to deny guardianship petitions unless the petitioner can meet a higher burden of proof than is now required that a guardianship is appropriate. That burden is considerable.

Currently, when someone files a guardianship petition, the petition must be accompanied by a Clinical Team Report dated within the previous 180 days. The clinical team must consist of a physician, a licensed psychologist and a social worker.

The petitioner must also explain why more limited forms of guardianship, such as a conservator to manage financial affairs only, is not appropriate, and why a full guardianship is necessary. The proposed SDM legislation would add consideration of the appropriateness of SDM to that burden of proof.

At the same time, the legislation would not require an individual to go to court to establish an SDM agreement. That latter factor is often cited by SDM proponents as an advantage in SDM arrangements.

But what the SDM proponents don’t mention is that the legislation still brings the probate court into the picture – only it does so in order to increase the burden on petitioners for guardianship. That provision, in our view, shows that the real purpose of the SDM legislation appears to be to bring about an end to guardianship in Massachusetts.

Additional safeguards needed

We are also asking both the Children and Families and Judiciary Committees to consider adding the following safeguards to the SDM bills:

• A specified standard for the level of functioning and decision-making capacity of the individual, below which an SDM arrangement would not be considered feasible.

As was the case with previous versions of the SDM legislation, the three bills this year define the “decision-maker” in an SDM agreement as “an adult who seeks to execute, or has executed, a supported decision making agreement with one or more supporters…”

There is no further specification about the decision maker in the bills. There is no differentiation in the definition between individuals with greater or lesser degrees of intellectual disability, and no consideration whether persons with low levels of cognitive functioning are really capable of making and appreciating life-altering decisions.

• A provision prohibiting employees of corporate residential and other providers from serving as members of an individual’s SDM team if those companies are also providing services to the individual.

Members of an individual’s SDM team who are also service providers to that person face a potential conflict of interest when they advise the “decision maker” about making use of the services they provide. The pending bills do not require any separation between provider employees and other individuals on the SDM team. Providers could serve in both capacities.

• Clarification of a statement in the Senate SDM bill (S.109) that, “Evidence of undue influence or coercion in the creation or signing of a supported decision-making agreement shall render the supported decision-making agreement invalid.”

We think the legislation should state which individual or entity would make the decision to render the SDM agreement invalid in that case.

• A change in the wording in each of the bills of the following language from “may” to “shall”:

…the DPPC (Disabled Persons Protection Commission) and DDS (Department of Developmental Services) may petition the probate court to revoke or suspend a SDM agreement on the grounds of abuse, neglect or exploitation by supporters.

• A provision establishing a dispute resolution process involving SDM agreements, and specification of a funding source for implementing SDM.

A Syracuse Law Review article stated that one of the lessons of SDM pilot projects in Massachusetts and elsewhere was that a dedicated funding source is needed to implement SDM for a large number of individuals. But there is no reference in the pending bills to a funding source for SDM in Massachusetts.

The Syracuse Law Review article also stated that there are likely to be disputes within SDM networks or teams, and noted that a pilot program in New York State created a two-day training session for SDM mediators. But while the SDM bills in Massachusetts would require the state to establish an SDM training program, none of the bills specify a dispute resolution process for SDM arrangements or training in dispute resolution. 

We hope that both legislative committees consider these concerns carefully. While the proponents of SDM may have good intentions, the devil is in the details.

Regardless of what the SDM proponents are telling the lawmakers, those lawmakers need to understand that this legislation, as currently written, will have far-reaching and long-term consequences; and we don’t think those consequences would be good for families and guardians of persons with I/DD.