Subject: Establishment of supported decision-making as a less restrictive alternative to guardianship for adults with developmental disabilities in Ohio.
Executive Summary:
Ohio Senate Bill 35 proposes to enact new sections within the Revised Code (5123.68 to 5123.686) to formally establish supported decision-making (SDM) as a legally recognized alternative to guardianship for adults with developmental disabilities. The bill emphasizes the presumption of capacity and competency for these adults and aims to empower them to make their own life decisions with assistance from chosen supporters. It outlines the definitions, principles, establishment process (both formal and informal), roles and responsibilities of supporters, and safeguards for principals and third parties. The bill positions SDM as a less restrictive option that respects the self-determination of individuals with developmental disabilities.
Main Themes and Important Ideas/Facts:
1. Establishing Supported Decision-Making (SDM):
- The core purpose of the bill is to establish SDM as a recognized process in Ohio law.
- Definition of SDM: “‘Supported decision-making’ means the process of supporting and accommodating an adult with a developmental disability who is making, communicating, or implementing the adult’s own life decisions without impeding the adult’s self-determination.” (Sec. 5123.68(B))
- SDM can encompass “any matter impacting the adult’s life.” (Sec. 5123.68(B))
- Supported Decision-Making Plan: This is a plan between the adult (“principal”) and one or more chosen supporters. It can be informal and natural or formal and documented in writing. (Sec. 5123.68(C))
- Supporter: This is an adult chosen by the individual with a developmental disability to provide support in the SDM process. (Sec. 5123.68(D))
2. Presumption of Capacity and Competency:
- The bill strongly establishes a presumption of capacity for adults with developmental disabilities.
- “Based on the principle that all adults with developmental disabilities should be afforded all of the rights set forth in section 5123.62 of the Revised Code, all adults with developmental disabilities are presumed to be capable of making decisions regarding their lives and activities of daily living and are presumed to be competent to handle their own affairs, unless otherwise determined by a court of competent jurisdiction.” (Sec. 5123.681(A))
- The existence of a developmental disability alone does not negate this presumption. (Sec. 5123.681(B))
- The manner of communication used by the individual is not grounds for deeming them incapable. (Sec. 5123.681(C))
- Entering into an SDM plan is explicitly stated not to be evidence of incapacity. (Sec. 5123.681(D))
- Individuals in an SDM plan retain the right to act independently and seek personal information without a supporter’s assistance, and this is not evidence of incapacity. (Sec. 5123.681(E))
3. Less Restrictive Alternative to Guardianship:
- A key goal of the bill is to position SDM as a less restrictive alternative to guardianship.
- Evidence of a formal or informal SDM plan “may be presented as a less restrictive alternative to guardianship pursuant to division (C)(5) of section 2111.02 of the Revised Code.” (Sec. 5123.681(F))
4. Establishment of SDM Plans:
- SDM plans are created at the request and with the active participation of the principal. (Sec. 5123.682(A))
- Plans can be established through:
- A written plan (formal). (Sec. 5123.682(A)(1))
- Naturally, without a written plan, through reliance on natural supports (informal). (Sec. 5123.682(A)(2))
- The Department of Developmental Disabilities is tasked with developing:
- A model written SDM plan. (Sec. 5123.682(B)(1))
- Informational materials about both formal and informal SDM plans for various stakeholders, including individuals with developmental disabilities, families, professionals, and the general public. (Sec. 5123.682(B)(2))
5. Formal Written Supported Decision-Making Plan:
- A written plan must be “signed and acknowledged voluntarily, without coercion or undue influence, by the principal.” (Sec. 5123.683(B)(2))
- The principal’s signature requires either a notary public or two adult witnesses (not parties to the plan) who attest to the voluntary signing. (Sec. 5123.683(B)(2))
6. Role and Responsibilities of the Supporter:
- Unless limited by the principal, a supporter can assist with:
- Understanding information, options, responsibilities, and consequences of decisions. (Sec. 5123.684(A)(1))
- Communicating decisions to third parties. (Sec. 5123.684(A)(2))
- Obtaining and understanding relevant information (medical, financial, etc.). (Sec. 5123.684(A)(3))
- Monitoring information about the principal’s affairs and services. (Sec. 5123.684(A)(4))
- Understanding the principal’s values and preferences to advocate for their wishes. (Sec. 5123.684(A)(5))
- Accompanying and participating in discussions with third parties. (Sec. 5123.684(A)(6))
- Supporters should only access information relevant to authorized decisions. (Sec. 5123.684(B)(1))
- Supporters must maintain confidentiality of protected personal information (HIPAA, FERPA, financial information). (Sec. 5123.684(B)(2))
- Supporters owe the principal a fiduciary duty to act according to the SDM plan and shall not contradict the principal’s expressed wishes. (Sec. 5123.684(C))
- Conflict of Interest: Supporters must disclose any conflicts of interest and refrain from advising on the decision. Failure to disclose or breaching fiduciary duty can lead to liability for damages. (Sec. 5123.684(D))
7. Modification and Termination of SDM Plans:
- Principals have the right to modify or end both formal and informal SDM plans at any time by notifying the supporter, either verbally or in writing. (Sec. 5123.685)
8. Protections for Third Parties:
- The bill does not prevent third parties from requiring a release of information or other documents to confirm the validity of the SDM plan or the supporter’s authorization. (Sec. 5123.686(A))
- Third parties acting in good faith reliance on an SDM plan are protected from civil liability, criminal prosecution, and professional disciplinary action unless they have actual knowledge that the plan has been modified or ended or that the supporter’s action was not authorized. (Sec. 5123.686(B))
Conclusion:
Ohio Senate Bill 35 represents a significant step towards promoting the self-determination of adults with developmental disabilities by establishing a formal legal framework for supported decision-making. By emphasizing the presumption of capacity, offering a less restrictive alternative to guardianship, and outlining the rights and responsibilities of all involved parties, the bill aims to empower individuals with developmental disabilities to have greater control over their lives while receiving necessary support from trusted individuals. The requirement for the Department of Developmental Disabilities to develop resources will be crucial for the successful implementation and understanding of SDM across the state.