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Jimmy has a learning disability. He is 45 years old. He works. He cannot drive. He has a bank account. He has a 401k. He lives in an apartment by himself. His mother left him a trust. His trustee is his uncle who lives out of state.
A friend of the family checks on Jimmy a couple times a week. She drives him to the doctor for appointments. She reviews his bank statements with him. She calls the landlord on his behalf.
She took Jimmy to the bank, as there was a question about a charge. The bank will not speak to the friend over the telephone. The bank officer was cautious about the friend being at the bank with Jimmy and will not speak to them together. There was a suggestion about getting Adult Protective Services involved.
In our practice, we have many clients with diminished capacity. They have trouble understanding. But with a little patience and some direction, they are able to understand and make decisions. They do not need a guardian. They do not need an agent under a power of attorney to take over. They just need some help. Is there a way to formalize someone who facilitates someone with diminished capacity decisions?
Supportive Decision Making (SDM) is a device to permit people who are impaired but retain decision-making capacity to designate another person to help them in gathering, assessing and interpreting information with the goal of assisting the impaired person to make their own decision. SDM is relatively new. Some will argue SDM is relatively untested. It is a less restrictive method of managing impairment or lack of capacity before the individual loses capacity than guardianship.
It is not a power of attorney. A power of attorney is an essential document which permits one person, an agent, with the legal authority to make financial or health decisions for another person. The word attorney means substitute. I am an attorney at law. When I go to court, I enter my appearance so that when I am in court, I speak for my client. I sign and file papers in court for my client. By “appearance” when the judge sees me in court, it is for you.
A person acting as a power of attorney is called an attorney in fact. A POA (as one is usually called) can sign the name of the principal, who gives the POA the power to do so.
A SDM is not a power of attorney. A power of attorney is for someone who cannot make decisions. A SDM is for some who need help making decisions.
This distinction can be subtle as many POAs do not take over when one is losing capacity, but steps in to help by doing the banking, paying the bills, and negotiating on behalf of the principal.
But a SMD is for someone who can make most of the decisions of everyday life, but just needs some help. Under a SMD agreement, the supporting person has no legal authority to make decisions. The supporting person has no authority to sign checks, open a bank account, sell property, or make a medical decision.
When thinking about incapacity, it is not like a light switch: either off or on. Dimmer switches have semiconductors that fluctuate the current. So, the light can be bright, really working hard, or dim, hardly working at all.
Supportive Decision Making is like that. If a person needs information, the SDM can get it. If a person needs someone to speak on the telephone for them, the SDM can do it. If a person needs to talk over a decision, the SDM can listen and point out pros and cons of a decision. But the decision does not belong to the SDM.
If you think about it a little bit, there are informal SDM arrangements all the time.
In Delaware, formal SDM agreements are in writing. The person entering the SDM agreement must understand the nature and effect of the agreement. It must be signed in the presence of two witnesses. The SDM agreement must be specific as to what type of decisions the SDM supporter is authorized to assist.
The critique of SDM is that they are subject to abuse by permitting one person access to a person who has diminished capacity. Even if they do not have legal authority to obtain the assets, like one with a power of attorney, a supporter may take advantage of someone who is trusting them.
But that is true without a SDM. A SDM provides structure and limits as to what a supporter may do. The supporter can produce the SDM agreement to a bank. It is far better than just letting someone give advice to one with limited capacity. And it is clear under a SDM that the supporter does not have power of attorney.
SDMs are relatively new. The first SDM statute in the United States was in 2015. And while it was thought that SDMs will reduce the number of guardianships that does not seem to be the case. According to a recent article by the National Academy of Elder Law Attorneys Vol. 20. Fall 2024 the census of guardianships seems to be about the same in the states that have SDM statutes.
Armed with her SDM agreement, Jimmy’s supporter is able to speak to the bank with Jimmy present explaining the question that he has. The bank officer, having reviewed the SDM agreement with the bank’s lawyer, is happy to speak to them together. She promises to look into the matter. Later the bank officer calls Jimmy’s supporter directly and the issue is resolved.
Our firm has decades of experience helping clients with diminished capacity live as unrestricted as possible. We are committed to helping those with disabilities whatever their age.
Let us know if we can help.
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