In the state of Arizona, adult guardianship is a legal mechanism designed to safeguard the well-being and interests of individuals who cannot take care of themselves due to various factors such as disability, illness, or age.
People with disabilities and their caregivers should be informed of the various options and alternatives to the most restrictive option of full guardianship, which can have a huge impact on the health and happiness of your family.
On June 20, 2023, Governor Katie Hobbs signed into law Senate Bill 1291, formalizing a meaningful alternative to guardianship for Arizonans with disabilities called Supported Decision-Making (SDM), which went into effect on January 1, 2024.
This legislation offers a powerful alternative to traditional guardianship, empowering individuals to maintain control over their lives while receiving essential support and guidance from their loved ones. Let’s take a closer look at how SDM differs from guardianship and what steps you can take to incorporate it into your plans for the future.
What is Supported Decision-Making?
SDM is a person-centered approach that recognizes the inherent right of every individual to make their own choices. It involves a voluntary agreement between an individual and a trusted advisor(s), such as family members, friends, or professionals. These supporters assist the individual in:
- Understanding: Gathering information, exploring options, and comprehending the potential consequences of different decisions.
- Considering: Weighing the pros and cons of each choice, reflecting on personal values and preferences.
- Communicating: Expressing their decisions effectively to others, such as healthcare providers or service agencies.
At least 1.5 million adults in the United States are under guardianship, although detailed data is unknown, due to a lack of standardized reporting and technology from state to state. People with intellectual or developmental disabilities (I/DD) frequently outlive their parents or family caregivers, which makes it critical to enshrine legal protections for their future with comprehensive estate planning.
According to the CDC, 70 million people in the US are considered to have some type of disability — that’s almost one in four Americans. Whether from birth, injury, illness or simply growing older, the civil rights of these members of our society must be protected.
Unlike guardianship or conservatorship in Arizona, which transfers almost all decision-making authority to another person, SDM preserves the individual’s right to control their own lives while providing them with the guidance they need to fully and responsibly evaluate their options.
Key Provisions of AZ Senate Bill 1291
The new sections of 14-5721 and 14-5722 to the Arizona Revised Statutes establish a legal framework for supported decision-making agreements (SDMAs). These agreements formalize the relationship between the individual and their supporters for SDM.
A supported decision-making agreement must be signed by the adult and the supporter in the presence of two or more subscribing witnesses, who must be at least eighteen years of age or a notary public.
Some of the bill’s key provisions include:
Eligibility: The SDM Act applies to adults with disabilities or impairments substantially limiting one or more major life activities, as defined in Section 41-1492.
Voluntary agreements: Participation in an SDMA is entirely voluntary. The individual, known as the “decision-maker,” must willingly agree without coercion.
Role of supporters: Supporters are chosen by the decision-maker and can assist in areas such as health care, financial matters, housing, and education. While they’re not authorized to make decisions for the individual, supporters can help clarify options and consequences.
No court involvement: Unlike guardianship, SDMAs do not require court approval. This makes the process less expensive and more accessible for families.
Revocability: Decision-makers can modify or revoke their SDMA at any time, ensuring flexibility and control.
Third-party recognition: The law mandates that third parties, such as banks and healthcare providers, honor SDMAs as valid legal documents.
The law also establishes legal recourse for improper actions by supporters, including criminal prosecution and civil penalties for those who intimidate, deceive, or abuse their authority, per Arizona’s Adult Protective Services Act (APSA).
Certain professionals, including healthcare providers, social workers, and law enforcement officers, are legally obligated to report suspected abuse, neglect, or exploitation of vulnerable adults.
The Benefits of Supported Decision-Making
Guardianship may remove a broad spectrum of rights from a vulnerable adult, depending on your state of residence. The process is costly and sometimes overly restrictive and unnecessary, and SDM can provide a less invasive alternative.
The US Department of Justice recommends that the individual “subject to guardianship should be at the center of all decisions and plans for the future.” Person-centered planning (PCP) refers to an approach designed to guide change and continuity in a person’s life.
Supported decision-making can boost the self-esteem of a vulnerable person and encourage a sense of control and autonomy over their lives. This process also helps reduce the stigma surrounding people with intellectual or developmental disabilities and fosters personal growth.
By empowering disabled individuals, SDM promotes integration into the community and reduces stigma. SDM agreements are tailored to the unique needs and preferences of the decision-maker, which fosters a more personalized support structure.
Building a More Inclusive Future
If you have a family member or loved one with disabilities who cannot fully self-advocate, it’s vital to fully understand the available options and seek professional legal advice.
While the SDM Act is a powerful tool, there are situations where guardianship may still be the best option for individuals with significant cognitive or developmental disabilities. Guardianship may also provide greater protection from abuse or exploitation.
Not everyone has a network of trusted individuals to serve as supporters. In such cases, a compassionate legal advocate specializing in adult guardianship and alternatives like SDM can help ensure your family receives the best possible outcome.
If you have questions about Arizona’s SDM Act or need help creating a supported decision-making agreement, our experienced guardianship attorneys are here to guide you every step of the way.
