Bill S.64

SENATE DOCKET, NO. 843 FILED ON: 1/16/2019

SENATE . . . . . . . . . . . . . . No. 64

By Ms. Lovely, a petition (accompanied by bill, Senate, No. 64) of Joan B. Lovely, Rebecca L. Rausch, Mike Connolly, Michael D. Brady and other members of the General Court for legislation relative to supported decision-making agreements for certain adults with disabilities. Children, Families and Persons with Disabilities.

The Commonwealth of Massachusetts

_______________

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

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An Act relative to 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. Chapter 190B is hereby amended, after section 5-507, by inserting the following new section:-

Section 5-508. Supported Decision-Making Agreements

(a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

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

“Decision-maker” means an adult with a disability who has executed a supported decision-making agreement.

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

"Supported decision-making" means the process of supporting, without impeding the self-determination of the decision-maker, and accommodating the decision-maker in making life decisions, including decisions related to where the decision-maker wants to live; the services, supports, financial decisions, and medical care the decision-maker wants to receive; whom the decision-maker wants to live with; and where the decision-maker wants to work.

"Supported decision-making agreement" is an agreement a decision-maker enters into with one or more supporters under this section to use supported decision-making.

"Supporter" means an adult who has entered into a supported decision-making agreement with a decision-maker.

(b) A decision-maker may voluntarily, without undue influence or coercion, enter into a supported decision-making agreement with a supporter or supporters. The decision-maker may amend or terminate a supported decision-making agreement at any time.

(c) Except as limited by a supported decision-making agreement, a supporter may provide to the decision-maker the following decision-making assistance with the decision-maker’s affairs with the consent of the individual with the disability:

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

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

(3) ascertaining the wishes and decisions of the decision-maker; assisting in communicating those wishes and decisions to other persons; and advocating to ensure their implementation; and

(4) accompanying the decision-maker and participating in discussions with other persons when the decision-maker is making decisions or attempting to obtain information for decisions.

(d) A supporter may exercise only the authority granted to the supporter in the supported decision-making agreement.

(1) Except as provided in paragraph (2), the supported decision-making agreement extends until terminated by the decision-maker, all supporters, the terms of the agreement, or court order, following notice and an opportunity to be heard, and if the decision-maker 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 for supporters who have not terminated unless it is terminated by the decision-maker or by all supporters.

(2) 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 continues to be willing to serve as a supporter and the decision-maker agrees.

(e)(1) A supporter is only authorized to assist the decision-maker in accessing, collecting, or obtaining information that is relevant to a decision authorized under the supported decision-making agreement and to which the decision-maker agrees that the supporter should have access.

(2) If a supporter assists the decision-maker 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 subject to neither unauthorized access, nor use, nor disclosure.

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

(g) A supported decision-making agreement must be signed voluntarily, without coercion or undue influence, by the decision-maker and the supporter or supporters in the presence of two or more subscribing witnesses who are at least 18 years of age, and unrelated to the person with the disability, or a notary public.

(h)(1) Subject to subsection (j), a supported decision-making agreement is valid only if it is in substantially the form of the agreement in subsection (i). The agreement is intended to be personalized by the decision-maker to reflect his or her personal circumstances. The decision-maker should describe in the agreement the type of decision making assistance he or she would like from his or her supporters.

(i) 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.

(j) A supported decision-making agreement may be in any form not inconsistent with Subsection (a) and the other requirements of this chapter.

(k)(1) A person who receives the original or 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 decision-maker.

(2) 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.

(l) Execution of a supported decision-making agreement may not be a condition of participation in any activity, service, or program.

(m) 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 decision-maker 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 chapter 19D or the Elder Abuse Prevention Hotline in accordance with chapter 19C.

(n) Nothing in this section shall be interpreted to limit or restrict any individual’s right to execute a health care proxy pursuant to chapter 201D or a power of attorney pursuant to sections 5-501 through 5-507 of chapter 190B.

SECTION 2. Chapter 190B of the General Laws is hereby amended by striking, in section 5-303, paragraph (b)(10) and inserting in place thereof the following :-

(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 the need for guardianship.

SECTION 3. Chapter 6A of the General Laws is hereby amended by inserting after section 16F the following section:-

Section 16F ½. 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 a non-profit corporation or corporations.

The training program on supported decision-making shall be provided to a supporter or a decision-maker receiving decision-making assistance, and shall include the rights and obligations contained in section 5-508 of chapter 190B. 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. Section 3 of chapter 71B of the General Laws is hereby amended by inserting the following at the end thereof the following:-

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. 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. 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.

SECTION 5. Section 2 of chapter 71B of the General Laws is hereby amended by inserting at the thereof the following:-

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 6. This act shall take effect six months from the date of its passage.

Name:	District/Address:
Joan B. Lovely	Second Essex
Rebecca L. Rausch	Norfolk, Bristol and Middlesex	1/30/2019
Mike Connolly	26th Middlesex	1/31/2019
Michael D. Brady	Second Plymouth and Bristol	1/31/2019
Mary S. Keefe	15th Worcester	1/31/2019
Bruce E. Tarr	First Essex and Middlesex	2/1/2019
Paul R. Feeney	Bristol and Norfolk	3/6/2019
Patrick M. O'Connor	Plymouth and Norfolk	6/25/2019