COFAR blog

Legislation that would authorize Supported Decision Making (SDM) as an alternative to guardianship of persons with intellectual and developmental disabilities (I/DD) in Massachusetts is once again close to final passage in the state Legislature.

This time, the circumstances surrounding the legislative process involving the bill are particularly troubling.

SDM involves enacting written agreements to replace guardians of persons with I/DD with informal teams of “supporters” or advisors. The supporters then provide those individuals with “decision-making assistance” about their care and finances.

On July 29, with two days to go in the formal 193^rd legislative session, the Children, Families, and Persons with Disabilities Committee referred two newly revised, identical SDM bills — H.4924 and H.4949 — to the Rules Committee.

Although the 193rd legislative session is now formally over, we understand that either or both of the redrafted bills can be referred at any time until the end of the year to either the House or Senate floor for final enactment. Once referred, the legislation could be enacted in “informal sessions” unless there is an objection from a lawmaker.

During informal sessions, there are usually only a few legislators present, and no roll call votes are taken.

Yet, the redrafted legislation appears to make major changes to the Massachusetts Uniform Probate Code (M.G.L. c. 190B), a set of provisions governing the probate court system.

Prior to July 29, the Children and Families Committee had delayed taking action on an earlier version of the legislation for more than a year.

In our view, guardianship is the most important legal protection family members have to ensure adequate care and services for their loved ones with I/DD.

In an email I sent last week (August 8) to key legislators, I said that legislation imposing arrangements that weaken guardianship also weakens the decision-making rights of families.

I noted that the redrafted legislation doesn’t address specifc oncerns we had previously raised about SDM with those legislators. 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.

Arrangements that weaken guardianship further violate the spirit of the federal Developmental Disabilities Assistance and Bill of Rights Act, which states that family members of persons with I/DD are the “primary decision-makers” in their care and services.

No vote by the Judiciary Committee

In addition to the lack of a roll call vote if the redrafted SDM bills are now taken up in the House or Senate, it appears the bills have not been voted on by the Legislature’s Judiciary Committee. The Judiciary Committee has jurisdiction over legislation pertaining to the courts in Massachusetts and the Probate Code.

Also, there has been no public hearing on the redrafted legislation, which appears to be substantially different from an earlier version of the measure. The Children and Families Committee did hold a public hearing on the earlier version in September 2023.

A staff member of the Children and Families Committee told us that the Judiciary Committee was involved with the Children and Families Committee in drafting H.4924 and H.4949. However, there is no indication on the Legislature’s website that the redrafted legislation was actually voted on favorably by the Judiciary Committee.

Committee co-chair says “plenty of time” for our concerns to be considered

In a response to my August 8 email, Representative Jay Livingstone, House chair of the Children and Families Committee, maintained that, “There is plenty of time for this bill and your (COFAR’s) comments to be considered.”

We hope that is the case, although we had raised concerns about the SDM legislation with the Children and Families Committee last year.

Livingstone also said there was “still a possibility” of a roll call vote on the redrafted legislation this year because the Senate president and House speaker have agreed to call a special session at some point before the end of the year. Nevertheless, it isn’t clear whether the SDM bills would be taken up during that special session if they are enacted this year.

Livingstone further acknowledged that the Judiciary Committee has not voted on either H.4924 or H.4949.

Redrafted legislation raises questions

In one respect, we think the redrafted legislation might be better than the earlier version of the measure.

Apparently based on a concern we raised last year, the redrafted legislation (H.4924 and H.4949) would prohibit an SDM supporter from having a conflict of interest involving their employer.

However, it isn’t clear that the redrafted legislation would completely rule out human services provider employees from serving as SDM supporters. Those individuals would be prohibited only from participating in specific “life decisions” in which they or their employers had a financial interest.

Moreover, we think the redrafted legislation as a whole would still weaken guardianship because it would set SDM up in the Probate Code as an alternative to guardianship. Under the redrafted legislation, anyone petitioning in probate court to become a guardian would have to state why either a more limited guardianship or an SDM agreement was “inappropriate.”

That SDM provision would add to the burden of proof that a petitioner already faces in probate court in order to become a guardian. Yet, an SDM agreement itself apparently doesn’t require similar court approval. Overall, we think that this legislation may predispose probate court judges to deny guardianship petitions in favor of SDM agreements.

Another concern we have about the SDM legislation is that it doesn’t specify a level of functioning and decision-making capacity below which an SDM arrangement would not be considered feasible. There is no consideration in the legislation as to whether persons with low levels of cognitive functioning are capable of making and appreciating life-altering decisions.

For all of those reasons, we think this is not the time to enact this legislation. We hope legislative leaders will recognize the need to go back to the drawing board in the next legislative session, and address the concerns we have raised.