The latest explainer from the Government Law Center at Albany Law School explores Supported Decision-Making and Supported Decision-Making Agreements, one of the recent developments in New York’s legislature.
In mid-May, the New York State Senate and Assembly passed legislative measures to enhance inclusion, access, and protections for New Yorkers living with disabilities. While still pending the signature of Governor Kathy Hochul, the legislation includes recognition of Supported Decision-Making Agreements. The package will, “strengthen and streamline resources, and correct historical tropes that are both harmful and inaccurate” to the disabled community, according to a press release from the State Senate.
In the explainer, Rose Mary Bailly – Special Consultant on Aging Law within the GLC – points out that anyone who has have ever sought advice on buying a car, a pair of running shoes, or even a jar of pasta sauce, has engaged in supported decision-making, without a second thought. Most New York adults are presumed to have the “legal capacity” to make decisions. Legal capacity being “the capacity and power to engage in a particular undertaking or transaction, to maintain a particular status with another individual, and more in general to create, modify or extinguish legal relationships” and “have those decisions legally recognized,” Bailly wrote.
Individuals with developmental disabilities generally do not have this certainty.
“By the time they reach 18 years of age, families are pressured by schools, physicians, service providers, and other parents to get guardianship notwithstanding the fact a guardianship may not be necessary, and that the loss of rights accompanying it is not well understood,” Bailly points out in the explainer. “Once a guardian is appointed for an individual, the guardian makes all the decisions and the individual is left without authority to make any decisions.”
“New York’s legislative recognition of supported decision-making is significant because it acknowledges the ability of individuals with disabilities to live independent lives, and avoid guardianship,” Bailly said. “Supported decision-making as well as decision-making alternatives to guardianship should be included as alternative options in New York’s developmental disabilities guardianship statute so that families and individuals with developmental disabilities are fully informed about their choices.”
The explainer is the latest in a series from the GLC that concisely map out the law that applies to important questions of public policy. The GLC has also created explainers on the federal Voting Rights Act, political redistricting in New York, immigration, aging, and policing policy.
Read the explainer here.