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Supported Decision Making is now the Law in New York State
Published August 18, 2022
Supported decision making is now the law in New York State. On July 26, 2022, the 32nd anniversary of the Americans with Disabilities Act, Governor Kathy Hochul signed a law creating statutory authority for supported decision making (SDM) agreements. These agreements provide for a less-restrictive alternative for people with intellectual and developmental disabilities (I/DD) to guardianship under Surrogate’s Court Procedure Act Article 17A. People subject to guardianship lack legal agency and cannot sign financial contracts or provide informed consent for medical treatment. While this model remains appropriate for many people with I/DD, judges have increasingly referred matters to the SDM process for those for whom more autonomy is appropriate.
In the SDM model, a trained facilitator works with the person with intellectual and developmental disabilities (I/DD), together with the people they propose to designate to support them to make life decisions, over several months to create a formal agreement. The process includes significant training and education emphasizing that the supporter’s role is to assist the person to understand the implications of competing alternatives so they can make their own choices, rather than simply telling them how to decide. Until now, while SDM facilitation has been a valuable process to foster the increased independence of people with I/DD, the resulting agreements lacked legal authority. According to the new law, when people with I/DD make decisions pursuant to such formal SDM agreements, they will be recognized as having legal capacity, and third parties will be required to recognize their decisions on the same basis as others.
The new law states that the facilitation and/or education will be governed by regulations yet to be drafted by the Office for People with Developmental Disabilities. The law refers to the recently completed five-year pilot project, Supported Decision Making New York, and its regulations are expected to be informed by the pilot project, but the regulations remain to be developed.
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