HOUSE DOCKET, NO. 666        FILED ON: 1/14/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 172

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Aaron Vega and Paul F. Tucker

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relating to authorizing supported decision-making agreements for certain adults with disabilities.

_______________

PETITION OF:

HOUSE DOCKET, NO. 666        FILED ON: 1/14/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 172

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

_______________

An Act relating to authorizing supported decision-making agreements for certain adults with disabilities.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. General Laws. chapter 190B is amended by adding Section 5-508 to read as follows:

SUPPORTED DECISION-MAKING AGREEMENT ACT GENERAL PROVISIONS

(1) DEFINITIONS. In this section:

(a) "Adult" means an individual 18 years of age or older.

(b) "Disability" means, with respect to an individual, a physical or mental impairment that substantially limits one or more major life activities.

(c) “Decision maker” means the person making the decision, that is, the principal.

(d) “Principal” is an adult with a disability who has executed a supported decision-making agreement, that is, the  decision maker.

(e) "Supported decision-making" means a process of supporting and accommodating a principal to assist the principal to make life decisions, including decisions related to where the principal wants to live, the services, supports, financial decisions, and medical care the principal wants to receive, whom the principal wants to live with, and where the principal wants to work, without impeding the self-determination of the principal.

(f) "Supported decision-making agreement" is an agreement a principal enters into with one or more supporters under this chapter to use supported decision-making.

(g) "Supporter" means an adult who has entered into a supported decision-making agreement with a principal.

(2) PURPOSE. The purposes of this section is to recognize that with support many people with disabilities can make their own decisions, to help such persons to exercise their human rights to make decisions, and to create a process which adults with disabilities who need assistance with decisions may choose to use to make and communicate decisions.

(3) SUPPORTED DECISION-MAKING AGREEMENT. A principal may voluntarily, without undue influence or coercion, enter into a supported decision-making agreement with a supporter or supporters. The principal may amend or terminate a supported decision-making agreement at any time.

(4) DECISION-MAKING ASSISTANCE OF SUPPORTER. Except as limited by a supported decision-making agreement, a supporter may provide to the principal the following decision-making assistance about the principal’s affairs with the consent of the individual with the disability:

(a) assisting with making decisions, communicating decisions, and understanding information about, options for, the responsibilities of, and the consequences of decisions;

(b) accessing, obtaining, and understanding information that is relevant to decisions necessary for the principal to manage his or her affairs, including medical, psychological, financial, and educational information, medical treatment records, and other records;

(c) ascertaining the wishes and decisions of the principal, assisting in communicating those wishes and decisions to other persons, and advocating to ensure their implementation; and

(d) accompanying the principal and participating in discussions with other persons when the principal is making decisions or attempting to obtain information for decisions.

(5) AUTHORITY OF A SUPPORTER. A supporter may

exercise only the authority granted to the supporter in the supported decision-making agreement.

(6) TERM OF AGREEMENT.

(a) Except as provided by Subsection (b), the supported decision-making agreement extends until terminated by the principal, by all of the supporters, by the terms of the agreement, or by court order, following notice and an opportunity to be heard, and if the principal is indigent and does not have counsel, appointment of counsel.

If the supported decision-making agreement includes more than one supporter, the agreement shall survive as to supporters who have not terminated unless it is terminated by the principal or by all of the supporters.

(b) The supported decision-making agreement is suspended when the Disabled Persons Protection Commission, an Elder Protective Services Agency or a court of competent jurisdiction finds that the adult with a disability has been abused, neglected, or exploited by a supporter or supporters. The agreement may survive if one or more supporters who were not found to have abused, neglected, or exploited the adult with a disability continue to be willing to serve as a supporter and the principal agrees.

(7) ACCESS TO PERSONAL INFORMATION.

(a) A supporter is only authorized to assist the principal in accessing, collecting, or obtaining information that is relevant to a decision authorized under the supported decision-making agreement and to which the principal agrees that the supporter should have access.

(b) If a supporter assists the principal in accessing, collecting, or obtaining personal information, including protected health information under the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191) or educational records under the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), the supporter shall ensure the information is kept privileged and confidential, as applicable, and is not subject to unauthorized access, use, or disclosure.              

(c) The existence of a supported decision-making agreement does not preclude a principal from seeking personal information without the assistance of a supporter.

(8) AUTHORIZING AND WITNESSING OF SUPPORTED DECISION-MAKING AGREEMENT.  A supported decision-making agreement must be signed voluntarily, without coercion or undue influence, by the principal and the supporter or supporters in the presence of two or more subscribing witnesses who are at least 18 years of age and are not related to the person with the disability or a notary public. 

(9) FORM OF SUPPORTED DECISION-MAKING AGREEMENT.

(a)Subject to Subsection (c), a supported decision-making agreement is valid only if it is in substantially the form of the agreement in subsection (b). The agreement is intended to be personalized by the principal to reflect his or her personal circumstances. The principal should describe in the agreement the type of decision making assistance he or she would like from his or her supporters. 

(b) Agreement:

SUPPORTED DECISION-MAKING AGREEMENT

Appointment of Supporter

(1)I, (insert your name)(address)(date of birth), make this agreement of my own free will. It is my intention that I be the decision maker.

(2)[If there is more than one supporter, provide the following  for each supporter]

As the decision maker, I choose as my supporter(s) the following person(people):

Full Name:

Address:

Phone Number: 

E-mail Address:

My supporter, [name of supporter], may help me with making everyday life decisions relating to the following areas of my life: [describe here]

____________________________________________________

____________________________________________________

____________________________________________________

____________________________________________________

[Optional section:]

As the decision maker I would like assistance from, (name of supporter) with making decisions about:

Y/Nobtaining food, clothing, and shelter

Y/Ntaking care of my health, including helping me make large and small health care decisions.

Y/Nmanaging my financial affairs.

Y/Naccessing and using public supports and services.

Y/N taking care of myself, including managing the people who work with me, making decisions about my diet, safety and other day to day activities.

Y/N making legal decisions, including retaining a lawyer if I need one and working with the lawyer.

I do not want assistance from my supporter, (name of supporter), with decision making about the following areas of my life: [describe here]

____________________________________________________

____________________________________________________

[Repeat section (2) for each additional supporter if there are any]

(3) My supporter(s) is(are) NOT allowed to make decisions for me. I am the decision maker.

(4) To help me with my decisions, my supporter(s) may:

1. Request information or records that are relevant to a decision, including medical, psychological, financial, educational, or treatment records;

2. Help me understand my options so I can make an informed decision by discussing with me the good things and bad things (pros and cons) of a decision

3. Give me information in a way that I can understand;

or

4. Help me communicate my decision to appropriate persons.

Y/NA release allowing my supporter to see protected health information under the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191) is attached. 

Y/N A release allowing my supporter to see educational records under the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g) is attached.

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.  I understand that as _______’s supporter my job is to honor and present his/her wishes and in the event I cannot perform my duties I will withdraw from this agreement.   

________

_____________________       ______________________________

(signature of supporter)        (printed name of supporter

Signature 

(my signature)_____(my printed name)

________________________              _______________________

(witness 1 signature)            (printed name of witness 1)

(witness 2 signature)(printed name of witness 2)

Commonwealth of Massachusetts

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:______________________

WARNING:

IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE

OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT THE DECISION MAKER, THAT IS THE ADULT WITH A DISABILITY, IS BEING ABUSED, NEGLECTED, OR EXPLOITED BY A SUPPORTER OR SUPPORTERS, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT, OR EXPLOITATION TO THE DISABLED PERSONS PROTECTION COMMISSION BY CALLING THE ABUSE HOTLINE AT 1-800-426-9009 OR 1-888-822-0350 (TTY) OR, IF THE DECISION MAKER, THAT IS THE PERSON WITH A DISABILITY, IS AGE 60 OR OLDER TO THE ELDER ABUSE PREVENTION HOTLINE AT 1-800-922-2275.

(c) A supported decision-making agreement may be in any form

not inconsistent with Subsection (a) and the other requirements of  this chapter.

(10) RELIANCE ON AGREEMENT; LIMITATION OF LIABILITY.

(a) A person who receives the original or a copy of a supported decision-making agreement shall rely on the agreement and recognize a decision or request made or communicated with the decision-making assistance of a supporter under this chapter as the decision or request of the principal.

(b) A person who, in good faith, acts in reliance on an authorization in a supported decision-making agreement is not subject to civil or criminal liability or to discipline for unprofessional conduct for relying on a decision made in accordance with a supported decision-making agreement.

(11) AGREEMENT MAY NOT BE A CONDITION OF PARTICIPATION. Execution of a supported decision-making agreement may not be a condition of participation in any activity, service, or program.

(12). 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 is being abused, neglected, or exploited by the supporter, the person shall report the alleged abuse, neglect, or exploitation to the Disabled Persons Protection Commission in accordance with G.L. c. 19D, or the Elder Abuse Prevention Hotline in accordance with G.L. c. 19C.

(13) HEALTH CARE PROXY AND DURABLE POWER OF ATTORNEY. Nothing in this chapter shall be interpreted to limit or restrict any individual’s right to execute a health care proxy pursuant to the terms of G.L. c. 201D or a power of attorney pursuant to the terms of G.L. c. 190B secs. 5-501 through 5-507.

SECTION 2. General Laws Chapter 190B Section 5-303(b)(10) is repealed and the following is added:

Section 5-303(b)(10): The petition for guardianship must state:

(1) Whether alternatives to guardianship and available supports and services to avoid guardianship, including a supported decision-making agreement, were considered; and,

(2) Whether any alternatives to guardianship and supports and services are feasible and would avoid need for guardianship.

SECTION 3. TRAINING ON SUPPORTED DECISION-MAKING

General Laws Chapter 6A, Section 16 is amended to add the following after the last paragraph of Section 16:

The executive office of health and human services shall establish a training program on supported decision-making. The training program shall include instruction by state agencies including the department of developmental services, the department of mental health, the executive office of elder affairs and/or a non-profit corporation or corporations.

The training program on supported decision-making shall be provided to a supporter or a principal receiving decision-making assistance, and shall include the rights and obligations contained in General Laws Chapter 190B Sec. 5-508.  The training shall be in any format accessible to the individuals receiving such training.  Such training shall at all stages include trainers with disabilities and adults who receive or might receive supported decision-making assistance.

SECTION 4. SUPPORTED DECISION-MAKING AND TRANSITIONAL PLANNING

(1) General Laws Chapter 71(b) Sec. 3 is amended to add the following after the last paragraph of Section 3:

For any student for whom adult guardianship is being considered at the Individual Educational Program (IEP) team meeting, the IEP team shall inform the student and family (or guardian if there is a guardian of the minor) at the earliest possible meeting of the availability of supported decision-making as an alternative to guardianship. Furthermore, the IEP team shall assist the child and his or her family or minor guardian in locating resources to assist in establishing a supported decision-making plan if the child and family are interested in supported decision-making. Finally, if a supported decision-making agreement is executed, the IEP team shall abide by decisions made by the student pursuant to the supported decision-making agreement.

(2) General Laws Chapter 71(b) Sec. 2 is amended to add the following after the last paragraph of Section 2:

The department of elementary and secondary education shall promulgate a regulation that requires school districts and charter schools to be part of the transitional planning process to inform students and families of the availability of supported decision-making as an alternative to guardianship in such cases where adult guardianship is being contemplated.

SECTION 5. This Act shall be effective immediately.