COLUMBUS,
Ohio — For Ohio adults with developmental disabilities who need help
navigating major decisions, the legal options can present a stark
choice: retain full control or, if a court finds them legally
incompetent, have a guardian appointed with authority to make certain
decisions for them.
A bill moving through the Ohio legislature seeks to establish a middle ground.
Senate Bill 35
would formally recognize “supported decision-making,” allowing an adult
with a developmental disability to choose trusted people to help
understand information, weigh options and communicate decisions —
without surrendering the ultimate authority to make those decisions.
Unlike
a guardian, who is appointed through probate court after a finding of
legal incompetence, a supporter would not take over the person’s
decision-making power. The adult could decide what help the supporter
may provide, continue acting independently and end the arrangement at
any time.
Supporters
say that distinction could give people with developmental disabilities
meaningful assistance without unnecessarily stripping them of autonomy.
But the proposal raises a different concern: If the arrangement operates
largely outside the courts, who makes sure the person providing that
help isn’t exerting undue influence or taking advantage of the person
they’re supposed to support?
That
question has emerged as a central point of debate over SB 35, which
passed the Senate unanimously last year and is now before the House Children and Human Services Committee.
The
proposal from Republican Sens. Jerry Cirino of Kirtland and Michele
Reynolds of Canal Winchester has drawn considerable support during two
House hearings, along with questions about who is eligible to enter such
an agreement, who can serve as a supporter and what happens when that
person crosses the line.
The nuts and bolts
Supported
decision-making itself is not new in Ohio as adults with developmental
disabilities already turn to parents, friends and professionals for
advice. SB 35 would give that practice a formal place in state law and
create a written framework that families, doctors, banks and courts
could recognize.
Under the current draft of the bill:
- All adults with developmental disabilities would be presumed competent unless a court determines otherwise.
- If
an adult with a developmental disability who is “of sound mind”
voluntarily chooses to enter a written plan, it must be created with the
adult’s informed consent. The agreement must be signed before a notary
or two adults who are not parties to it.
- Supporters
could help explain options and consequences, communicate decisions,
obtain relevant medical or financial information and participate in
discussions with third parties. The adult could limit what a supporter
is allowed to do.
- Supporters would have a fiduciary duty,
meaning a legal obligation to put the adult’s interests ahead of their
own. A supporter who breaches that duty could be liable for resulting
damages.
- The adult could act without the supporter and could modify or end the arrangement at any time by notifying them.
- The Ohio Department of Developmental Disabilities would create a model plan and educational materials for adults, families and professionals.
Unlike
guardianship, the supporter would not replace the adult as the
decision-maker. This detail is critical because a guardian is appointed
through probate court after a finding of legal incompetence and gains
authority to make certain decisions for the person. With supported
decision-making, however, the adult keeps that authority.
‘A less restrictive alternative to guardianship’
Supporters
of SB 35 describe it as a way to formalize a practice already in play:
asking trusted people for advice before making an important decision.
The difference is that adults with developmental disabilities would
enter a written agreement identifying their supporters while retaining
the final authority to make their own choices.
The
sponsors presented supported decision-making as “a less restrictive
alternative to guardianship,” which is established through a county
probate court. In those cases, a judge determines that an adult is
legally incompetent and puts someone else in charge to make certain
decisions on that person’s behalf.
“We
don’t always need to approach everything from a guardian or a control
standpoint,” Sen. Reynolds told the committee. “We need to coach
individuals to be able to self-actualize and live to their fullest
potential.”
The
legislation would not change the state’s existing guardianship process
or the authority granted under those appointments, meaning people who
are unable to manage their own affairs would still be able to seek those
protections. Ohio law
already requires judges considering guardianship to weigh evidence that
someone’s needs could be met through another option when introduced,
and SB 35 would specifically allow supported decision-making to be
presented that way.
Attorney
Derek Graham said the proposal pushes back against the assumption that a
developmental-disability diagnosis automatically means that person
requires guardianship. His daughter has Down syndrome, and he told
lawmakers that people who had never even met her suggested that she
would need one after turning 18.
“My wife and I, we don’t want to make decisions for our daughter,” he said. “I want to continue to make decisions with her.”
Likewise, Scott Lundregan of ElevateDD
said, “Virtually everything with estate planning and guardianship is
all focused on what these people can’t do. Supported decision-making is
about what they can do.”
Stephanie
Leppert, who also has Down syndrome, described how supported
decision-making already works in her life. With advice from friends and
family as well as her service coordinator, she was able to move out of
her parents’ home after 37 years and has since lived independently.
According to disability rights resource I Decide Kansas, 25 states and the District of Columbia already recognize supported decision-making agreements as legally valid documents.
More freedom, but who is watching?
Critics
have questioned whether SB 35 gives adults with developmental
disabilities enough protection when someone offering help violates their
trust.
Chief
Magistrate Lisa Wiseman of the Montgomery County Probate Court
testified before the committee to clear up questions and concerns
surrounding the bill, clarifying the limited role of judicial
supervision in overseeing the proposed framework. Unlike guardianship, a
supported decision-making agreement would generally be created
privately rather than being filed with or approved through the probate
system.
“The
court would not be involved, typically, unless somebody has brought an
action to the court,” she said, adding that family members could
otherwise be unaware that an agreement even exists.
That
raised questions about who would detect coercion or exploitation before
serious harm occurs. The bill requires the principal -- meaning the
adult with a developmental disability who enters the agreement -- to
sign voluntarily before a notary or two independent witnesses. However,
no judge would independently determine at the outset whether the person
understands the agreement or has been pressured into it.
This
is a key point of contention because the current draft reads, “If an
adult with a developmental disability who is of sound mind voluntarily
chooses to enter into a supported decision-making plan, the plan shall
be created with the informed consent of the principal.”
Sarah
Klingler, who serves on a friend’s supported decision-making team, said
the provision is riddled with ambiguity and questioned who would
determine whether someone has the mental capacity to enter the
agreement. Dawn Bilpuch, who is blind and says she uses supported
decision-making, addressed the matter from a different angle, noting
that an unclear standard could expose people with disabilities to
unnecessary competency testing before they can even use a system
intended to increase their independence.
Kristen Henry of Advocacy and Protective Services said “of sound mind” mirrors a standard already used elsewhere in Ohio law, including requirements for creating a health care power of attorney.
Attorney
Caroline A. Lahrmann, who is a co-guardian of two adults with
developmental disabilities, offered the sharpest criticism. She argued
that the wording does not explicitly require someone to be of sound mind
before entering an agreement, contending that it only explains what
happens when someone who meets that standard chooses to do so. She
referred to the language as “malarkey” and “insulting,” arguing that it
could leave people who need support vulnerable to legally significant
agreements they do not understand.
“This bill treats people with developmental disabilities with less care than any other Ohioan,” she said.
Graham
and Wiseman nevertheless testified on the premise that supported
decision-making is intended for adults who retain the capacity to make
their own decisions, illustrating the disagreement over how clearly the
bill itself establishes that threshold.
Lahrmann
also objected to who could become a supporter, since SB 35 does not
categorically exclude paid service providers or establish
criminal-history restrictions, instead relying largely on fiduciary
duties and conflict-of-interest rules to hold them accountable.
Criticizing the initiative for establishing “no oversight,” she also
noted that the proposal does not itself create a new mandatory-reporting
requirement for third parties who suspect exploitation.
Henry
offered a different assessment and told the committee that “if somebody
were to be clearly acting not in good faith, then they would not have
the protections that are in that bill.” She also stated that many
professionals within Ohio’s developmental-disability system are already
required to report suspected abuse, neglect or exploitation.
Full Article & Source:
An alternative to guardianship? Ohio bill promises more independence for adults with disabilities. Critics see risks