Supported Self-Determination as an Alternative to Guardianship

Supported Self-Determination as an Alternative to Guardianship

Disabled People Have More Autonomy and Control

Article 82 of the Kentucky Mental Hygiene Legislation (Article 82) became law earlier this year, providing for assisted decision-making in Kentucky. This new legislation provides persons with intellectual and developmental disabilities with additional tools to help them live productive and successful lives.

Before the enactment of Article 82, parents of children with intellectual or developmental impairments mainly were confined to obtaining guardianship of their child under the Surrogates Court Procedure Act Article 17-A. (Article 17-A). Article 17-A was enacted in 1966, and several disability activists have lately advocated for alternatives to such guardianships.

Article 17-A Guardianships

Disability groups have contended that Article 17-A guardianships are too broad, giving the guardian almost unlimited power over the incapacitated person’s financial and medical decisions. When comparing the vast powers allowed by SCPA Article 17-A to the other Kentucky guardianship legislation – Kentucky Mental Hygiene Law Article 81 – comparisons were often drawn (Article 81).

Guardianships under Article 81 are often established for adults and are frequently utilized when a family member ages and starts to lose some of their functioning skills. However, under Article 81, the person seeking to become the guardian (often a spouse or child of the allegedly incapacitated person) must demonstrate that the guardianship is the least restrictive option, and the control must be tailored to address the individual’s specific needs based on functional limitations. Article 81 also requires that an attorney represent the allegedly incompetent individual if they so wish.

The absence of such constraints and safeguards in the Article 17-A procedure has alarmed not just disability campaigners but also handicapped people and their loved ones. The court often authorizes guardianships under Article 17-A based on the medical evidence of two physicians, a doctor and a psychologist. Alternatives to Article 17-A guardianships have emerged throughout time, with the assisted decision-making process emerging as one of the most promising.

What exactly is aided decision-making?

The handicapped person is referred to as the “decision-maker” in supported decision-making. They are aided by “supporters” who help them make choices about their financial affairs and health care. The options are made in accordance with a “supported decision-making agreement” (SDMA), which outlines how the impaired person would collaborate with their supports to make decisions about their affairs.

What exactly do facilitators perform throughout the process?

A facilitator is an object or person the Kentucky Office has permitted People with Developmental Disabilities, known as OPWDD. Talk to decision-makers and their supporters about the assisted decision-making process and SDMAs and teach them more about them. The OPWDD is anticipated to issue rules outlining the function and duties of facilitators within the next year. The facilitation process should take numerous sessions and several months to complete.

What exactly is a decision-making agreement that is supported?

An SDMA is a contract signed by the decision-maker and their supporters that specifies the choices the decision-maker will be aided with and the supporters’ involvement in the process. If a facilitator was engaged in the agreement, they will also sign it and acknowledge that it was formed in line with a recognized facilitation and education process. The SDMA must be witnessed or notarized by two individuals.

What is the SDMA’s impact?

If the SDMA is correctly designed and signed by a facilitator, decisions taken by the decision-maker by that agreement will have the force of law. A court of competent jurisdiction may execute them. For example, if a handicapped person contracts a lease with a landlord under such an SDMA, the lease is legally binding.

What is the future of assisted decision-making?

Supported decision-making, disability activists believe, would be regarded as a credible alternative to Article 17-A guardianships. Much debate has been over amending Article 17-A to make these guardianships less broad in reach. Changes to Article 17-A are expected in the future, allowing these guardianships to be better suited to the requirements of the person.

There will always be a need for Article 17-A guardianships, particularly those with severe impairments. However, for handicapped people with less severe impairments, assisted decision-making may give the assistance they need while avoiding the loss of power and autonomy that Article 17-A guardianship might entail.

In Kentucky, supported decision-making cannot be fully implemented until the OPWDD develops guidelines supporting Article 82. Meanwhile, disabled persons and their families may learn more about how the process can work for them by consulting with reputable specialists in this field.