California lawmakers recently enacted a “supported decision-making law,” which reforms the Golden State’s conservatorship practices.
California’s New Supported Decision-Making Law
In 2022, the California state legislature passed Assembly Bill 1663. Sponsored by Assemblymember Brian Maienschen and eventually signed into law by Gov. Gavin Newsom, the “Supported Decision-Making” law amends several sections of the Golden State’s Welfare and Institution Law.
Assembly Bill 1663 broadly reformed California’s long-standing conservatorship practice and procedures. In the past, an adult conservator appointed to manage the legal, personal, and financial affairs of a minor ward or incapacitated person had the authority to make unilateral decisions about a ward’s life. While conservators have always had a legal obligation to act in the conservatee’s best interests, the unamended Welfare and Institution Law granted conservators significant and sweeping decision-making rights.
The recent amendment to the Welfare and Institute Law recognizes that adults with disabilities, including older adults, should still be presumed competent to make decisions about their day-to-day health, safety, and welfare.
How Supported Decision-Making Empowers Adults With Disabilities
Supported decision-making is a legal tool that lets adults with disabilities retain their decision-making capacity.
Adults who sign a supported decision-making agreement may nominate designated “supporters,” who help them understand, consider, and communicate decisions about their day-to-day care.
California’s revised supported decision-making law offers greater autonomy to disabled adults who need assistance managing their:
- Health care needs
- Employment prospects
- Educational opportunities
- Financial affairs
Supported decision-making, unlike a conventional conservatorship, affords adults with disabilities an opportunity to receive support when they need it but stay in control of their own affairs.
The Different Degrees of Supported Decision-Making Frameworks
A supported decision-making agreement may include any of the following elements:
- A supported decision-making agreement may offer disabled adults access to a network of friends, family members, and state-appointed officials who help the adult navigate their personal and legal affairs without any further assistance.
- A supported decision-making agreement could be combined with a durable power of attorney and other permissions.
- A supported decision-making agreement may include a limited conservatorship, ensuring that an incapacitated adult enjoys greater autonomy while establishing their independence.
The Advantages of Supported Decision-Making
A disabled adult’s supporters can help them navigate day-to-day life by:
- Talking through important life decisions
- Role-playing job interviews or classroom situations
- Attending meetings and appointments with the disabled adult to provide additional guidance and comfort
- Partnering with the adult to manage their financial affairs responsibly and effectively
Supported decision-making can offer many adults an opportunity to begin exercising their autonomy and establishing their independence. However, supported decision-making agreements are not always binding and may not offer caretakers adequate means to protect their wards from fiscal or physical difficulty.
Talking to an Attorney About Supported Decision-Making
A supported decision-making agreement can help families overcome incredible obstacles; however, a standalone supported decision-making agreement does not necessarily provide adult caretakers with the tools needed to help a ward make and enact critical decisions. You may need to consider establishing:
A special needs trust.
A special needs trust provides additional resources for adults with disabilities. When a grantor establishes a special needs trust, they can disburse conditioned maintenance funds to an adult beneficiary. These funds do not jeopardize or reduce the adult beneficiary’s eligibility for government benefits.
A durable power of attorney.
A durable power of attorney, or a financial power of attorney, delegates critical financial tasks and responsibilities to a designated agent. This agent can help a disabled adult pay their bills, make investments, and administer existing assets.
A limited conservatorship.
A limited conservatorship is a type of conservatorship that allows the individual conservatee to retain as much independence as possible. While conservators still exercise some authority over the conservatee’s assets and financial responsibilities, a limited conservatorship offers more opportunities for collaboration than a full and conventional conservatorship.
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