Disability Resources
FAQs about Supported Decision-Making
Supported Decision-Making (SDM) is an alternative to guardianship that lets adults with disabilities make their own decisions with the support of people they trust. We all use SDM every day when we get advice from family and friends to help us make decisions. We may ask for help deciding what laptop to buy or whether to repair our car.
A person with a disability (“decisionmaker” or "principal") can formalize how they use SDM in a written agreement. They can say what things they want support with, like money, health, education, or housing, and who they want to support them (“supporters” or "agents"). They can also say how they do not want to be supported. This written agreement is called a Supported Decision-Making Agreement (SDMA).
For example, a decisionmaker named Carla asks her uncle to be her supporter and help her decide where to live. Carla and her uncle agree that he will help her make a list of things she wants in an apartment, find a realtor, visit apartments, and set up automatic rent payments. Carla also asks her uncle for help telling the landlord about repairs. Carla can also use her SDMA to authorize her uncle to communicate her decisions to her landlord.
A supporter is a person who supports and advises a decisionmaker. Decisionmakers pick supporters they want to help them. They can change who their supporters are at any time, though it must be done in writing.
Supporters can help decisionmakers by:
- Helping them understand and explore options
- Explaining the risks and benefits of options
- Assisting with getting information
- Giving guidance and ideas
- Helping them communicate and carry out a decision
Under Florida law, a supporter may also be called an 'agent' and decision-maker may also be called a 'principal'.
The supporter can be anyone who is an adult. There are no requirements for a background check or any training or education.
Guardianship and guardian advocacy are legal tools that allow courts to remove a person’s rights and appoint someone else to make decisions for them. Under guardianship, this happens when a judge decides that a person is “incapacitated.” Under guardian advocacy, there does not have to be a finding of incapacity but is based on an individual’s diagnosis of a developmental disability.
For example, a judge decides Carla is “incapacitated.” The judge removes Carla’s rights to choose where she lives and manage her property and gives them to her guardian. Even if Carla disagrees, Carla’s guardian can now decide to sell Carla’s apartment and move Carla into a group home.
Under guardianship or guardian advocacy a person can lose the right to:
- Have a driver’s license
- Personally apply for benefits
- Manage money or property
- Sign a contract
- Vote
- Marry
- Work
- Choose where to live
- Sue or defend lawsuits
- Travel, including taking the bus or an Uber
- Say yes or no to medical treatments
- Choose who to spend time with, including seeing friends and family
If a person loses all of these rights, it’s called a "plenary guardianship.” If they lose only some of their rights, it is called a "limited guardianship." There is no plenary guardian advocacy; the person must retain at least one right.
How we use our rights makes us who we are. Removing someone’s rights through guardianship or guardian advocacy should always be the last resort.
A Supported Decision-Making Agreement (SDMA) must be in writing and must be notarized and signed by two witnesses. The notary and witnesses cannot be supporters or the decisionmaker.
Why We Need SDM
No. As the National Council on Disability stated in its report “Beyond Guardianship,” Florida’s guardian advocate statute is essentially a limited guardianship with fewer protections for the person with a disability. Indeed, the guardian advocate statute states that guardian advocates have all the same "powers, duties, and responsibilities” as guardians.
The difference between guardian advocacy and guardianship is who it is for and the legal process used to set it up. While guardianship can be used for people with all types of disabilities, guardian advocacy is only for people with developmental disabilities.
Here is a more detailed comparison of the two:
Guardianship
- Chapter 744, Florida Statutes
- All disabilities
- Person seeking to be guardian needs an attorney
- Person with a disability can lose all their rights
- Person with a disability must be found “incapacitated”
- Person with a disability must be evaluated by three examiners (one must be a medical doctor, the others could be psychologists, nurses, etc.) before rights are removed
- Person with a disability has right to their own attorney free of charge
Guardian Advocacy
- Chapter 393, Florida Statutes
- Developmental disabilities only
- Person seeking to be guardian advocate only needs an attorney if seeking right to manage property
- Person with a disability must keep at least one right
- Person with a disability does not need to be found “incapacitated”
- No expert evaluations; person with a disability can lose rights based only on documents that detail their disability (such as IEPs or family plans)
- Person with a disability has right to their own attorney free of charge
Who Can Use SDM
Yes! Every time you ask someone you trust for advice you are using Supported Decision-Making (SDM). You can draft your own Supported Decision-Making Agreement (SDMA) or use a template. The written agreement will help others understand how you do and do not want to be supported.
Yes! People with intellectual and developmental disabilities were the first to use Supported Decision-Making (SDM) to end their guardianships. Since then, people with all types of disabilities have used SDM. This includes people with mental illnesses and learning disabilities. SDM is also becoming popular with older adults. This is because some people need more support as they age.
Yes! Supported Decision-Making (SDM) can help someone learn how to make decisions. People under guardianship and guardian advocacy can create and sign Supported Decision-Making Agreements (SDMA). If the SDMA involves a right the decision-maker lost, the guardian or guardian advocate must approve. If it does not, the decision maker does not need permission.
Also, Florida law requires guardians and guardian advocates to work to assist the disabled individual to gain decision-making capacity. Even for rights that have been removed, SDM can be used to help the person learn the decision-making process and practice decision-making skills though the guardian or guardian advocate still has final decision-making power in this situation.
What If
If a decision-maker is not under guardianship or guardian advocacy, they can make any decisions they want. This includes decisions their supporters disagree with. Supporters can assist decision-makers by helping them understand the bad things that can happen if they make a choice. But the final choice is always the decision-maker’s. We have all made decisions that our parents, siblings, or friends disagree with. This is part of being an adult and controlling our own lives.
Most of us, whether or not we have a disability, have learned a lot from our bad decisions. People with disabilities have the right to make mistakes and learn from them just like everyone else.
Sometimes people with disabilities are unfairly held to a higher standard. If someone without a disability makes an expensive late-night purchase online, it might be a funny story to tell at a party. But if a person with a disability does the same, people might think they cannot manage their own money. People with disabilities should not have to be perfect in order to prove they are capable of making their own decisions.
When a decisionmaker makes a bad decision, their supporters can help them learn and grow from that mistake. They can help the decisionmaker understand what went wrong, manage any consequences, and learn how to avoid the same mistake in the future.
There are no studies that prove people with disabilities who are under guardianship are safer. In fact, in the past few years in Florida we have seen many cases of guardians abusing the people under their care.
People with disabilities who use SDM have more freedom to protect themselves than people under guardianship. Decisionmakers who have their rights can say “no.” They can come and go freely. They can “break up” with their supporter at any time. They can ask for help. In contrast, a person under guardianship might be isolated. They may not even be allowed to speak to their loved ones.
SDM promotes self-determination. Studies show that people who have greater self-determination are more likely to identify abusive situations and less likely to experience abuse. SDM also allows people with disabilities to have more than one supporter and stronger ties to the community. This makes it harder for one person to abuse them.
Texas has had an SDM law since 2015. Twenty-three other states and Washington D.C. also have SDM laws. There is no evidence of an increase in cases of abuse of people with disabilities in those states.
Florida’s SDM law also has safeguards to protect decisionmakers. All of the protections that apply to powers of attorney apply to Supported Decision-Making Agreements. These include criminal consequences for exploitation of elderly or disabled people. Also, supporters are considered fiduciaries, which means they must act in good faith and in accordance with the decisionmaker’s best interests. If they don’t, they can be sued, made to pay back any money they caused the decisionmaker to lose, and made to pay the decisionmaker’s attorney’s fees.
In sum, any tool in the toolbox can be used by bad actors. But SDM enables people with disabilities to protect themselves and Florida law affords additional protections.
Using Supported Decision-Making (SDM) should not affect your benefits. You may want your supporters to help you apply for or manage your benefits. You may also want your supporters to help you manage your finances so that you remain eligible for your benefits.
One way you might want a supporter to help you is by acting as your Representative Payee. Representative Payees receive your money from Social Security and use it to pay for all of your basic needs. Then they give you or save whatever money is left. Basic needs include food, shelter, and any healthcare expenses not covered by your insurance.
For Parents & Caregivers
No, guardianship will give the court control over both your child and you as a guardian. When a child is under 18, their parents are responsible for their welfare. The courts are not supposed to intervene unless there is abuse, abandonment, or neglect. When a person is put under guardianship, the court becomes responsible for their welfare. The court is involved at all times to prevent abuse or neglect. The court appoints a guardian and the guardian is accountable to the court. The court can change the guardian, even to a stranger. The guardian must submit annual reports. The guardian must ask the court for permission to take certain actions. For example, if the person under guardianship does not have the right to travel, the guardian must ask the court before taking them outside of the county. This includes a trip from Miami to the beach in Ft. Lauderdale. Court oversight is essential to protect people under guardianship from being mistreated by their guardians. But when the guardianship was unnecessary in the first place, the oversight can feel very intrusive. The same is true for guardian advocacy.
It’s hard to end a guardianship. It can also be expensive. You have to prove to the court that the person under guardianship can exercise their rights. It can be done, but it takes time and money. If a person under guardianship wants to get their rights back, they may need to pay an attorney. If they have a private guardian who disagrees, they also have to pay their guardian and their guardian’s attorney to oppose the case. Some people under guardianship have trouble finding an attorney or understanding how to initiate the process. This is often due to isolation. It’s much better to try less restrictive alternatives first. You should only pursue guardianship after less restrictive alternatives like Supported Decision-Making (SDM) have not worked. The same is true for guardian advocacy.
POAs & Health Care Surrogates
A power of attorney allows a person (“principal”) to authorize another person (“agent”) to act on their behalf. It is like making a photocopy of your rights and sharing it with another person. Both you and your agent can exercise your rights. If you don’t like how your agent acts, you can terminate the power of attorney. A power of attorney can be used as part of Supported Decision-Making (SDM) or on its own.
SDM allows a person (“decision-maker”) to appoint people they trust (“supporters”) to help them make decisions. Each decision-maker is different. Each decision-maker has their own preference for how they want to be supported. Supporters generally give decision-makers advice rather than acting for them. But a decision-maker might ask their supporters to do things for them. A decision-maker may want their supporter to sell a property or deposit a check for them. They may also want their supporter to decide for them entirely. Indeed, many people trust others to make decisions for them. For example, a person might hire a financial expert to invest their money for them.
A Supported Decision-Making Agreement (SDMA) details what the supporter will do. A power of attorney gives the supporter any additional authority needed to actually do it. For example, a decision-maker named Carla wants her mother, acting as her supporter for finances, to write checks for her. Carla signs an SDMA where she details how her mother will assist her. Carla also signs a power of attorney giving her mother the authority to write checks for her.
Once the SDM Bill becomes law, the need for powers of attorney to supplement SDMAs will be greatly reduced. However, authorizing a supporter to take actions other than requesting information or communicating the decision-maker’s decisions will still require a power of attorney.
A healthcare surrogate designation allows a person (“principal”) to appoint another person (“healthcare surrogate”) to receive their healthcare information and/or make healthcare decisions for them. These decisions include saying yes or no to treatments and deciding to donate the principal’s organs. A healthcare surrogate designation can take effect immediately or when the principal loses capacity. Even if a person signs a health care surrogate designation, so long as they have capacity and do not have a guardian or guardian advocate in charge of their health, they can overrule their health care surrogate or terminate the designation at any time. A healthcare surrogate designation can be used as part of Supported Decision-Making (SDM) or on its own.
SDM allows a person (“decision-maker”) to appoint people they trust (“supporters”)to assist them in making decisions. This includes healthcare decisions. Each decision-maker is different. Each decision-maker will have their own preferences for how they want to be supported. Supporters generally give decision-makers advice rather than acting for them. But a decision-maker might decide they want their supporter to make some or all healthcare decisions for them. If so, the decision-maker may want to sign a healthcare surrogate designation in addition to a Supported Decision-Making Agreement (SDMA).
For example, a decision-maker named Carla wants her sister to be her supporter for healthcare decisions. In her SDMA, Carla states that she wants to make her own decisions about her day-to-day health needs. She wants to decide which medications to take for her anxiety. She wants to choose a psychiatrist and a psychologist to treat her. She wants to decide how often to go to therapy. Carla also states in her SDMA that she wants her sister to decide if she ever needs major surgery. Carla wants her sister to listen to her concerns and talk to her about the surgery, then make the final decision. Carla signs an SDMA stating all of this. Carla also signs a healthcare surrogate designation naming her sister as her healthcare surrogate. Because Carla does not have a guardian or guardian advocate, even though her sister is her healthcare surrogate, Carla still has the ultimate say over whether or not she gets any treatment.
Yes. Powers of attorney and health care surrogate designations can be used on their own or as part of Supported Decision-Making (SDM). Read “What is the difference between Supported Decision-Making (SDM) and a power of attorney?” and “What is the difference between Supported Decision-Making (SDM) and a health care surrogate designation?” above for more details.
For Guardianship Attorneys
All people with disabilities, whether or not they are under guardianship, can used Supported Decision-Making (SDM) under this law. If a person with a disability is under guardianship and wishes to draft an SDM agreement that involves rights that were removed and given to the guardian, the guardian must provide authorization. The same is true for guardian advocacy.
SDM will be a powerful tool for guardianship litigators and a new service to offer clients. It can be used at the following stages of litigation:
- Prior to and as a defense against the implementation of a guardianship or guardian advocacy, or
- After a guardianship or guardian advocacy is in place as a tool to demonstrate capacity and have one or more rights reinstated.
Section 746.104 of the proposed Supported Decision-Making Bill states that “An adult may not enter into a supported decision-making agreement unless the adult: (a) enters into the agreement voluntarily and without coercion or undue influence; and (b) understands the nature and effect of the agreement.” Just as with other legal documents like wills and powers of attorney, a judge would determine if an adult meets these criteria and thus has the capacity to sign. As happens with wills and trusts, capacity will be presumed unless someone brings a legal challenge in court.
Every person is legally liable for their own acts, whether or not they are under guardianship, have a power of attorney, or use Supported Decision-Making.