Chapter 124 |
2019 -- S 0031 SUBSTITUTE A Enacted 07/08/2019 |
A N A C T |
RELATING TO PROBATE PRACTICE AND PROCEDURE -- SUPPORTED DECISION-MAKING ACT |
Introduced By: Senators Satchell, Seveney, Lawson, Nesselbush, and Cano |
Date Introduced: January 15, 2019 |
It is enacted by the General Assembly as follows: |
SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND |
GOVERNMENT" is hereby amended by adding thereto the following chapter: |
CHAPTER 66.13 |
SUPPORTED DECISION-MAKING ACT |
42-66.13-1. Short title. |
This chapter shall be known and may be cited as the "Supported Decision-Making Act." |
42-66.13-2. Purpose. |
(a) The purpose of this chapter is to achieve all of the following: |
(1) Provide assistance in gathering and assessing information, making informed |
decisions, and communicating decisions for adults who would benefit from decision-making |
assistance; |
(2) Give supporters legal status to be with the adult and participate in discussions with |
others when the adult is making decisions or attempting to obtain information; |
(3) Enable supporters to assist in making and communicating decisions for the adult but |
not substitute as the decision maker for that adult; and |
(4) Establish the use of supported decision-making as an alternative to guardianship. |
(b) This chapter is to be administered and interpreted in accordance with all of the |
following principles: |
(1) All adults should be able to choose to live in the manner they wish and to accept or |
refuse support, assistance, or protection; |
(2) All adults should be able to be informed about and participate in the management of |
their affairs; and |
(3) The values, beliefs, wishes, cultural norms, and traditions that adults hold, should be |
respected in supporting adults to manage their affairs. |
42-66.13-3. Definitions. |
For the purposes of this chapter: |
(1) "Adult" means an individual who is eighteen (18) years of age or older. |
(2) "Affairs" means personal, health care, and matters arising in the course of activities of |
daily living and including those health care and personal affairs in which adults make their own |
health care healthcare decisions, including monitoring their own health; obtaining, scheduling, |
and coordinating health and support services; understanding health care healthcare information |
and options; and making personal decisions, including those to provide for their own care and |
comfort. |
(3) “Disability” means a physical or mental impairment that substantially limits one or |
more major life activities of a person. |
(4) "Good faith" means honesty in fact and the observance of reasonable standards of fair |
dealing. |
(5) "Immediate family member" means a spouse, child, sibling, parent, grandparent, |
grandchild, stepparent, stepchild, or stepsibling. |
(6) "Person" means an adult; health care healthcare institution; health care healthcare |
provider; corporation; partnership; limited-liability company; association; joint venture; |
government; governmental subdivision, agency, or instrumentality; public corporation; or any |
other legal or commercial entity. |
(7) "Principal" means an adult with a disability who seeks to enter, or has entered, into a |
supported decision-making agreement with a supporter under this chapter. |
(8) "Supported decision-making" means a process of supporting and accommodating an |
adult to enable the adult to make life decisions, including decisions related to where the adult |
wants to live, the services, supports, and medical care the adult wants to receive, whom the adult |
wants to live with, where the adult wants to work, without impeding the self-determination of the |
adult. |
(9) "Supported decision-making agreement" or "the agreement" means an agreement |
between a principal and a supporter entered into under this chapter. |
(10) "Supporter" means a person who is named in a supported decision-making |
agreement and is not prohibited from acting pursuant to § 42-66.13-6(b). |
(11) "Support services" means a coordinated system of social and other services supplied |
by private, state, institutional, or community providers designed to help maintain the |
independence of an adult, including any of the following: |
(i) Homemaker-type services, including house repair, home cleaning, laundry, shopping, |
and meal-provision; |
(ii) Companion-type services, including transportation, escort, and facilitation of written, |
oral, and electronic communication; |
(iii) Visiting nurse and attendant care; |
(iv) Health care Healthcare provision; |
(v) Physical and psychosocial assessments; |
(vi) Legal assessments and advisement; |
(vii) Education and educational assessment and advisement; |
(viii) Hands-on treatment or care, including assistance with activities of daily living, such |
as bathing, dressing, eating, range of motion, toileting, transferring, and ambulation; |
(ix) Care planning; and |
(x) Other services needed to maintain the independence of an adult. |
42-66.13-4. Presumption of capacity. |
(a) All adults are presumed to be capable of managing their affairs and to have legal |
capacity. |
(b) The manner in which an adult communicates with others is not grounds for deciding |
that the adult is incapable of managing the adult's affairs. |
(c) Execution of a supported decision-making agreement may not be used as evidence of |
incapacity and does not preclude the ability of the adult who has entered into such an agreement |
to act independently of the agreement. |
42-66.13-5. Supported decision-making agreements. |
(a) A supported decision-making agreement must include all of the following: |
(1) Designation of at least one supporter; |
(2) The types of decisions for which the supporter is authorized to assist; and |
(3) The types of decisions, if any, for which the supporter may not assist. |
(b) A supported decision-making agreement may include any of the following: |
(i) Designation of more than one supporter; |
(ii) Provision for an alternate to act in the place of a supporter in such circumstances as |
may be specified in the agreement; and |
(iii) Authorization for a supporter to share information with any other supporter named in |
the agreement, as a supporter believes is necessary. |
(c) A supported decision-making agreement is valid only if all of the following occur: |
(1) The agreement is in a writing that contains the elements of the form contained in § |
42-66.13-10; |
(2) The agreement is dated; and |
(3) Each party to the agreement signed the agreement in the presence of two (2) adult |
witnesses, or before a notary public. |
(d) The two (2) adult witnesses required by subsection (c)(3) of this section may not be |
any of the following: |
(1) A supporter for the principal; |
(2) An employee or agent of a supporter named in the supported decision-making |
agreement; |
(3) A paid provider of services to the principal; and |
(4) Any person who does not understand the type of communication the principal uses, |
unless an individual who understands the principal's means of communication is present to assist |
during the execution of the supported decision-making agreement. |
(e) A supported decision-making agreement must contain a separate declaration signed |
by each supporter named in the agreement indicating all of the following: |
(1) The supporter's relationship to the principal; |
(2) The supporter's willingness to act as a supporter; and |
(3) The supporter's acknowledgement of the role of a supporter under this chapter. |
(f) A supported decision-making agreement may authorize a supporter to assist the |
principal to decide whether to give or refuse consent to a life-sustaining procedure pursuant to the |
provisions of chapters 4.10 and 4.11 of title 23. |
(g) A principal or a supporter may revoke a supported decision-making agreement at any |
time in writing and with notice to the other parties to the agreement. |
42-66.13-6. Supporters. |
(a) Except as otherwise provided by a supported decision-making agreement, a supporter |
may do all of the following: |
(1) Assist the principal in understanding information, options, responsibilities, and |
consequences of the principal's life decisions, including those decisions relating to the principal's |
affairs or support services; |
(2) Help the principal access, obtain, and understand any information that is relevant to |
any given life decision, including medical, psychological, or educational decisions, or any |
treatment records or records necessary to manage the principal's affairs or support services; |
(3) Assist the principal in finding, obtaining, making appointments for, and implementing |
the principal's support services or plans for support services; |
(4) Help the principal monitor information about the principal's affairs or support |
services, including keeping track of future necessary or recommended services; and |
(5) Ascertain the wishes and decisions of the principal,; assist in communicating those |
wishes and decisions to other persons,; and advocate to ensure that the wishes and decisions of |
the principal are implemented. |
(b) Any of the following are disqualified from acting as a supporter: |
(1) A person who is an employer or employee of the principal, unless the person is an |
immediate family member of the principal; |
(2) A person directly providing paid support services to the principal, unless the person is |
an immediate family member of the principal; and |
(3) An individual against whom the principal has obtained an order of protection from |
abuse or an individual who is the subject of a civil or criminal order prohibiting contact with the |
principal. |
(c) A supporter shall act with the care, competence, and diligence ordinarily exercised by |
individuals in similar circumstances, with due regard either to the possession of, or lack of, |
special skills or expertise. |
42-66.13-7. Recognition of supporters. |
A decision or request made or communicated with the assistance of a supporter in |
conformity with this chapter shall be recognized for the purposes of any provision of law as the |
decision or request of the principal and may be enforced by the principal or supporter in law or |
equity on the same basis as a decision or request of the principal. |
42-66.13-8. Access to information. |
(a) A supporter may assist the principal with obtaining any information to which the |
principal is entitled, including, with a signed and dated specific consent, protected health |
information under the Health Insurance Portability and Accountability Act of 1996 [Pub. L. 104- |
191], educational records under the Family Educational Rights and Privacy Act of 1974 [20 |
U.S.C. § 1232g], or information protected by 42 U.S.C.A. § 290dd-2, 42 C.F.R Part 2. |
(b) The supporter shall ensure all information collected on behalf of the principal under |
this section is kept privileged and confidential, as applicable; is not subject to unauthorized |
access, use, or disclosure; and is properly disposed of when appropriate. |
42-66.13 -9. Reporting of suspected abuse, neglect, or exploitation. |
If a person who receives a copy of a supported decision-making agreement or is aware of |
the existence of a supported decision-making agreement has cause to believe that the principal, |
who is an adult with a developmental disability or an elder, is being abused, neglected, or |
exploited by the supporter, the person shall report the alleged abuse, neglect, or exploitation |
pursuant to §§ 40.1-27-02 40.1-27-2, and 42-66-8. |
42-66.13-10. Form of supported decision-making agreement. |
A supported decision-making agreement may be in any form not inconsistent with the |
following form and the other requirements of this chapter. Use of the following form is presumed |
to meet statutory provisions. |
SUPPORTED DECISION-MAKING AGREEMENT |
Appointment of Supporter |
I, .....................................(insert your name), make this agreement of my own free will. |
I agree and designate that: |
Name:............................... |
Address: ............................................. |
Phone Number: ................................... |
E-mail Address: .................................... |
is my supporter. My supporter may help me with making everyday life decisions relating to the |
following: |
Y/N Obtaining food, clothing, and shelter |
Y/N Taking care of my health |
Y/N Other (specify): |
______________________________________________________________________________ |
______________________________________________________________________________ |
I agree and designate that: |
Name: ................................................ |
Address: ................................... |
Phone Number:.................................... |
E-mail Address: ........................................... |
is my supporter. My supporter may help me with making everyday life decisions relating to the |
following: |
Y/N Obtaining food, clothing, and shelter |
Y/N Taking care of my physical health |
Y/N Other (specify): |
______________________________________________________________________________ |
______________________________________________________________________________ |
My supporter(s) is (are) not allowed to make decisions for me. To help me with my decisions, my |
supporter(s) may: |
(1) Help me access, collect, or obtain information that is relevant to a decision, including |
medical, psychological, educational, or treatment records; |
(2) Help me gather and complete appropriate authorizations and releases; |
(3) Help me understand my options so I can make an informed decision; and |
(4) Help me communicate my decision to appropriate persons. |
Effective Date of Supported Decision-Making Agreement |
This supported decision-making agreement is effective immediately and will continue |
until.................................(insert date) or until the agreement is terminated by my supporter or me |
or by operation of law. |
Signed this ..................day of .................., 20............. |
Consent of Supporter |
I, ...................................... (name of supporter), consent to act as a supporter under this agreement, |
and acknowledge my responsibilities under chapter 66.13 of title 42. |
..................................................................................................................................................... |
(Signature of supporter) (Printed name of supporter) |
My relationship to the principal is: ................................................. |
I, ........................................... (Name of supporter), consent to act as a supporter under this |
agreement, and acknowledge my responsibilities under chapter 66.13 of title 42. |
....................................................................................................................................................... |
(Signature of supporter) (Printed name of supporter) |
My relationship to the principal is: .......................................................... |
Consent of the Principal |
....................................................................................................................................................... |
(My signature) (My printed name) |
Witnesses or Notary |
........................................................................................................................................................... |
(Witness 1 signature) (Printed name of witness 1) |
........................................................................................................................................................... |
(Witness 2 signature) (Printed name of witness 2) |
Or |
State of ..................................... |
County of .................................. |
This document was acknowledged before me on (date) by |
...................................................................... and ............................................................................. . |
(Name of adult with a disability) (Name of supporter) |
....................................................................... |
(Signature of notarial officer) |
(Seal, if any, of notary) |
....................................................................... |
(Printed name) |
My commission expires: ................................................ |
SECTION 2. This act shall take effect upon passage. |
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LC000076/SUB A/2 |
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