Supported Decision-Making

Supported decision-making allows a person with disabilities to retain the freedom to make their own choices to the best of their abilities.  It allows them to stay in control of their life, be more independent, and have better life outcomes. All of these benefits are possible through supported decision-making and without the need for a guardian.

Capacity is the ability of an individual to provide for their personal needs for food, clothing, shelter, health care, or safety or to manage their financial affairs.

A person may have the capacity to manage some things but lack the capacity to manage other things. A person may not lack capacity if they are able to effectively instruct others to carry out certain tasks on their behalf.

A judge figures out whether or not you can make your own decisions by holding a private hearing and looking at different types of evidence that may show your ability or inability to make certain types of decisions or to carry out certain tasks that are necessary to meet your needs.

The person who is asking the judge to grant guardianship must prove that you can’t make certain decisions or handle certain tasks. You will also have an opportunity to show that you can make those decisions or handle those tasks.

If the judge finds, beyond a reasonable doubt, that you are unable to make certain decisions or carry out certain tasks, the judge will consider whether a guardian is necessary to ensure that your needs are met.

Your court-appointed attorney can help you figure out if there are other less restrictive options that might work for you. These might include a power of attorney or a supported decision-making agreement. If other options are available, your attorney can present those to the judge.

The judge will decide if other options can meet your needs. If they can, the judge may dismiss the guardianship proceeding. If the judge decides that less restrictive options aren’t suitable for you, then they will order that you be placed under guardianship.

If a judge determines guardianship is in your best interest, they will issue a guardianship Order.  The Order will identify which of your legal rights that you are unable to carry out on your own.  You will then no longer have the legal power to do those things independently.

The Order will state who will be your guardian and what power they have.  The guardian will be authorized to make the decisions or handle the tasks identified in the Order.

• A guardianship over the “estate”:  A guardian is authorized to manage your assets and income.
• A guardianship over the “person”: A guardian is authorized to make decisions about your person such as healthcare decisions, where you live, whether you can hold a driver’s license, vote, marry, etc.

Your guardian “stands in your shoes” to make certain decisions for you and/or to manage certain things for you.  Your guardian’s power is described in the Order.

Supported decision-making (SDM) allows a person with disabilities to make their own decisions. It is an alternative to guardianship. Supported decision-making is flexible in how it is applied from individual to individual and even how it is applied to the same individual over time.

A person using supported decision-making identifies what types of decisions they want help with. This might include decisions related to where and with whom they want to live, what services, supports, or medical care they want to receive, and where they want to work.

The person with disabilities chooses people they trust to help them understand, make, and communicate those decisions. These trusted people are called “supporters”. Supporters may include trusted friends, relatives, neighbors, co-workers, providers, volunteers, or community members.

Through a written supportive decision-making agreement, the person with disabilities legally designates which supporters will help them make which decisions.

There is not one method of using supported decision-making.  Each person’s situation is unique.  Since each supported decision-making agreement is designed to best support the individual with disabilities, each agreement will look different.

Below are some examples of how a supporter might work with a person with disabilities to ensure the person is involved in all decisions and able to make their own informed choices:

• Use plain language materials and present information in multiple ways (video, audio, print).
• Request extra time for the person with disabilities to make their decision so the supporter can provide information about, and discuss, choices.
• Ensure the person with disabilities understands their choices by creating lists of pros and cons.
• Prepare the person with disabilities to communicate their decisions by role playing how they will inform others of their choices.
• Accompany the person with disabilities to important appointments to take notes and help them remember and discuss their options.
• Set up and help monitor payment tools such as auto-payments or bill management notification apps.

In addition to a supported decision-making agreement, the person with disabilities may consider using a healthcare proxy, power of attorney, and/or advance directive.

A durable power of attorney is a document you sign authorizing a person you trust to make certain decisions or to carry out certain tasks on your behalf. The person you name is called your “agent”. You can limit the power or expand the power you give your agent in any way you wish. You can end the durable power of attorney at any time.

Creating a durable power of attorney does not mean you cannot complete the tasks you authorize your agent to do; it means both of you can manage the task(s).

What does ‘durable’ mean?

If a power of attorney is “durable” it means that your agent can continue to manage your affairs even if you are later unable to handle the tasks yourself.

With supported decision-making, your Supporter does not have power to make decisions for you. With a durable power of attorney, your agent can make decisions for you, if you’re unable to do so.

With supported decision-making, you continue to make your own decisions with the assistance of your chosen Supporter. With a guardianship, you lose the legal right to make your own decisions and your guardian makes decisions for you instead. Your guardian should consider your wants and needs, but that does not always happen.

Yes, unless all of your legal rights have been removed by the court. If you still have authority to make certain decisions or carry out certain tasks, then you can name a Supporter to assist you with making those particular decisions or carrying out those tasks.

If the guardianship Order states you are unable to make certain decisions and gives that authority to your guardian, then a Supporter cannot assist you in making those particular decisions.

No. A Supporter is not a surrogate decision-maker and is not authorized to sign legal or other documents on your behalf or to bind you to a legal agreement.

To end your guardianship, you need to write a letter to the court or file a “Motion to Terminate Guardianship” with the court. The letter or motion does not have to be formal. Unless the court believes the filing lacks merit, a hearing will be scheduled.

If you do not have an attorney, you can ask the court to appoint one for you.

At the hearing, your guardian must prove to the court that there is still a reason for them to remain your guardian. You and your lawyer should be ready to show how you are now able to make decisions or take care of tasks that you couldn’t before.

The judge will decide if removing your guardian is in your best interest. They might also change the terms of your guardianship to give you more rights. If your guardian is not managing things well or if you want a different guardian, you can ask the judge for this as well.

For additional information or assistance, you can contact the Probate Court in your county: www.courts.nh.gov/your-visit/find-court#probate or you can call 603-415-0162.

As a Supporter, you should be available to help when the Principal (the person who being assisted) requests assistance.

You should read the agreement and understand what tasks the Principal seeks you to help with. If you are a Supporter, discuss with the Principal how they want you to support them. Discuss their needs, goals and wishes and how you may be able to assist them.

Regularly check-in and ask them if they need more or less support than you are giving or if they want you to assist in a different way. Consider whether you and the Principal are working well as a team.

A Supporter is required by the statute to:

1. act loyally, without self-interest, and in good faith;
2. act within the authority granted in the agreement and the law;
3. avoid conflicts of interest;
4. disclose to the principal all facts known to the supporter relevant to making a decision;
5. 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; and
6. provide sufficient information to a monitor for financial matters if such a monitor is named in the agreement.

Although you are not required to share your agreement, some people have not heard about supported decision-making or don’t understand how it works. You may need or want to provide additional information to some people so they can understand the role of your Supporter.

We have created three handouts that you can print and give to people if you find that they need help understanding supported decision-making. Each handout describes how supported decision-making can be used in a different place or situation:

1. Healthcare: What I Want My Healthcare Provider to Know About Supported Decision-Making
2. Education: What I Want My School to Know About Supported Decision-Making
3. Other Situations: What I Want You to Know About My Supported Decision-Making Agreement

You can also give the provider a copy of New Hampshire’s new law Chapter 464-D SUPPORTED DECISION-MAKING.

If a provider still refuses to recognize your supported decision-making agreement, you can contact us for assistance.

You may decide to appoint a different Supporter under a new supported decision-making agreement if your current Supporter is not working out.

If you decide that you want someone to make decisions on your behalf, you may want to create a durable power of attorney naming a person you choose to make certain decisions or carry out certain tasks on your behalf. With a durable power of attorney, you retain your legal rights but allow someone to make decisions.

Guardianships are necessary for people who are unable to make decisions or manage their needs. If you want a court to monitor how a person manages your assets and income, you can ask the court to appoint a conservator.

Not necessarily. If co-guardians can’t agree on certain decisions, the court may need to step in to resolve the disagreement. This can take extra time.

If your guardian dies or can no longer serve as your guardian, the court will appoint a new guardian to take over.

Yes. Other states are required to recognize legal documents that were properly created in a different state.

Many other states are also enacting supported decision-making laws.

Yes.  Providers in Massachusetts are required to recognize legal documents that were properly created in New Hampshire.

We have created three handouts that you can print and give to people if you find that they need help understanding supported decision-making. Each handout describes how supported decision-making can be used in a different place or situation:

1. Healthcare: What I Want My Healthcare Provider to Know About Supported Decision-Making
2. Education: What I Want My School to Know About Supported Decision-Making
3. Other Situations: What I Want You to Know About My Supported Decision-Making Agreement

You can also give the provider a copy of New Hampshire’s new law Chapter 464-D SUPPORTED DECISION-MAKING.

If a provider still refuses to recognize your supported decision-making agreement, you can contact us for assistance.

If the court ends your guardianship, your former guardian must return access and control of your assets to you (or your agent under a durable power of attorney). Neither the court nor your former guardian will have information regarding the management of your assets or income moving forward.