Frequently Asked Questions (FAQs)

Frequently asked questions about supported decision making and other alternatives to guardianship.

The Basics

What is Supported Decision Making?

Supported Decision Making (SDM) is an alternative to guardianship. SDM lets adults with disabilities make their own decisions with the support of people they trust. We all use SDM every day to get advice from family and friends. We may ask for help deciding what laptop to buy or whether to repair our car.

A person who uses SDM is called the “decision maker”. The decision maker chooses people they trust to help them make decisions. They will choose people like friends, family, or professionals. These people are called "supporters." The supporters help the decision maker understand, think about, and share their decisions. This can be done informally or in a written plan called a Supported Decision-Making Agreement (SDMA). The decision maker can say what decisions they need help with. Some examples are things like where to live, how to manage money, and how to stay healthy. They can also choose who they want to help them and how they want to be helped.

Here is an example of SDM in action. Jodie asks her uncle to be her supporter and help her decide where to live. Jodie and her uncle make a plan for how he will help her. He will help her find an apartment that has everything she wants, work with a real estate agent, visit apartments, and set up automatic rent payments. Jodie also asks her uncle to help her tell the landlord about needed repairs. This same process can be used to help Jodie make other decisions in her life, like what job to have and how to eat healthy meals.

What is a Decision Maker?

A decision maker is a person with a disability who uses Supported Decision Making. Decision makers make their own decisions with the help of people they trust.

What is a Supporter?

A supporter is a person who helps the decision maker. Supporters give decision makers advice. They support the decision maker. 

Supporters can help decision makers by:

• Helping them understand different choices
• Talking about the good and bad parts of different choices
• Helping get more information about something
• Giving advice and suggestions
• Helping them make a choice and follow through with it

What is Guardianship?

Guardianship is a legal tool. Guardianship lets the State of Kansas remove a person’s rights. A “guardian” is appointed to make decisions for the person. This happens when a judge decides that a person is “incapacitated.” In the law, “incapacitated” means that a person is unable to make their own decisions or take care of themselves. A person can be called “incapacitated” because of a mental or physical disability.

For example, a judge decides Jodie is “incapacitated.” The judge removes Jodie’s rights to choose where she lives. The right to choose where she lives is given to her guardian. Even if Jodie disagrees, Jodie’s guardian can now decide to sell Jodie’s apartment. Jodie’s guardian can move Jodie into a group home.

Under guardianship, a person can lose the right to:

• Have a driver’s license
• Apply for benefits themselves
• Make choices about money or property
• Sign a contract
• Get married
• Work
• Choose where to live
• Sue or defend lawsuits
• Travel (including taking the bus or an Uber)
• Say yes or no to medical treatments
• Choose who to spend time with like seeing friends and family

How we use our rights makes us who we are. Guardianship should always be the last resort.

Why We Need SDM

Why Do We Need a Supported Decision-Making Law?

Families and judges often feel they don’t have another option. They choose unnecessary guardianship because they don't know what else to do. As soon as their child turns 18, parents are told they need to get a guardianship. Kansas' guardianship law says that you can’t put someone under guardianship if there is a less restrictive option. But, the law does not offer other options. Judges and families need more information.

The proposed Supported Decision Making Agreements Act will:

1. Avoid unnecessary guardianships
2. Inform people know about SDM
3. Make SDM easier to use

The law will make it easier for people to use Supported Decision Making by:

• Giving supporters who help decision-makers legal permission to do so
• Making doctors, banks, and other organizations accept SDMAs that show a person is using SDM
• Protecting supporters and businesses that are acting in good faith when they honor SDMAs
• Allowing supporters to help decision-makers without needing extra legal papers
• Giving people with disabilities a sample document to use to make their own SDMAs
• Clearly stating what supporters can and cannot do
• Punishing people who act badly and harm supporters

The law will give judges and families information and tools. The law will help us support people with disabilities without taking their rights.

Who Can Use SDM

Can I use Supported Decision Making in Kansas now?

Yes! Every time you ask someone you trust for advice, you are using Supported Decision Making (SDM). You don’t need an SDM law to draft your own Supported Decision-Making Agreement (SDMA). An SDMA will help others understand how you want to be supported. You might need other documents to allow your supporters to get information for you or communicate your decisions to others. Once we get the SDMA law, you won’t need the other documents. The other documents might be a “Power of Attorney” or a “Release of Information” form.

Is Supported Decision Making for People with All Types of Disabilities?

Yes! People with intellectual and developmental disabilities were the first to use Supported Decision Making (SDM) to end their guardianships. Since then, people with all types of disabilities have used SDM. People with mental illnesses and learning disabilities can use SDM. 

Can Older Adults Use Supported Decision Making?

Yes! Older adults can use Supported Decision Making (SDM). SDM is becoming more popular with older adults. It is becoming more popular because people need more help as they age. The proposed SDM Bill is for all people over the age of 18 who have a disability. This includes older adults.

Can People Under Guardianship use Supported Decision Making?

Yes! Supported Decision Making (SDM) can help someone learn how to make decisions. The proposed SDM Bill lets people with a guardian sign Supported Decision-Making Agreements (SDMA). If the SDMA includes a right the decision maker lost, the guardian must approve. If the SDMA doesn’t include a right the decision maker lost, the decision maker does not need permission.

Guardians who want to use SDM must understand that SDM is different from guardianship. They will need to give the decision maker more freedom to make decisions.

What if

What Happens If a Decision Maker Wants to Make Decisions Their Supporters Disagree With?

The decision maker can make any decisions they want. If the decision maker does not have a guardian, they get to decide. This includes decisions their supporters disagree with. Supporters can assist decision makers by helping them understand the bad things that can happen if they make a choice. But, the final choice is always the decision maker's.

We have all made decisions that our parents, siblings, or friends disagree with. This is part of being an adult. This is part of controlling our lives.

What If a Decision Maker Makes a Bad Decision?

Most of us have learned a lot from our bad decisions. People with disabilities and people without disabilities can both make bad choices. People with disabilities have the right to make mistakes and learn from them.

Sometimes people with disabilities are held to a higher standard than people without disabilities. If someone without a disability makes an expensive late-night purchase online, it might be a funny story to tell at a party. But if a person with a disability does the same, people might think they cannot manage their money. People with disabilities should not have to be perfect to prove they are able to make their own decisions.

When a decision maker makes a bad decision, their supporters can help them learn from that mistake. They can help the decision maker understand what went wrong. They can help the decision maker deal with consequences. They can help the decision maker learn how to avoid the same mistake in the future.

What About Abuse, Neglect, or Exploitation?

People with disabilities who have a guardian are not safer. There are no studies that show that people who have a guardian are safer than people who don't. In fact, sometimes they are less safe. In Kansas, we have seen many cases of guardians abusing people in their care.

People with disabilities who use SDM have more freedom to protect themselves than people with a guardian. Decision makers without a guardian can say “no.” They can leave. They can “break up” with their supporter. They can ask for help. A person with a guardian can be isolated. Isolation means they are taken away from other people. They may not even be allowed to speak to their loved ones. People who are isolated are at higher risk of abuse.

Using Supported Decision-Making (SDM) helps people make their own choices. When we make our own choices, we are self-determined. Research shows that people who are self-determined are less likely to be abused by others. SDM also lets people with disabilities have more than one person to help them. It helps people with disabilities be connected to their community. This makes it harder for one person to abuse or hurt them.

Texas has had an SDM law since 2015. Eleven other states and Washington D.C. also have SDM laws. There is no evidence of an increase in cases of abuse of people with disabilities in those states.

The proposed SDM Bill also has protections for decision makers. Supported Decision-Making Agreements (SDMAs) include a warning that shows anyone who reads it how to report abuse. Supporters have to sign a declaration. The declaration states that they understand all of their duties under the law. It says that they understand that abusing, neglecting, or exploiting a vulnerable adult is a crime. These protections are stronger than the protections with powers of attorney. This is a big deal because powers of attorney grant much more authority than SDMAs.

SDM empowers people with disabilities to protect themselves from bad actors. The SDM Bill includes important protection.

How will Supported Decision Making affect my benefits, like SSI, SSDI, and Medicaid?

Using Supported Decision Making (SDM) should not affect your benefits. You may want your supporters to help you with your benefits. You may also want your supporters to help you manage your money so that you stay eligible for your benefits.

One way you might want a supporter to help you is by acting as your Representative Payee. Representative Payees receive your money from Social Security and use it to pay for all of your needs. Then they give you or save whatever money is left. Basic needs include food, shelter, and any healthcare expenses not covered by your insurance. To learn more about Representative Payees visit https://www.ssa.gov/payee/index.htm.

For Parents & Caregivers

As a parent, wouldn't a guardianship give me the same control that I have now over my child after they turn 18?

No, guardianship will give the court control over both your child and you as a guardian. When a child is under 18, their parents are responsible for their welfare. The courts are not supposed to intervene unless there is abuse or neglect. When a person is put under guardianship, the court becomes responsible for their welfare. The court is involved at all times to prevent abuse or neglect. The court appoints a guardian and the guardian is accountable to the court. The court can change the guardian. The guardian must submit annual reports. The guardian must ask the court for permission to take certain actions. For example, if the person under guardianship does not have the right to travel, the guardian must ask the court before taking them outside of the county. This includes a trip from Miami to the beach in Ft. Lauderdale. Court oversight is essential to protect people under guardianship from being mistreated by their guardians. But when the guardianship was unnecessary in the first place, the oversight can feel very intrusive. The same is true for guardian advocacy.

Can I get guardianship over my young adult and then reverse it when they are ready to be independent?

It’s hard to get out of a guardianship. You have to prove to the court that the person under guardianship can exercise their rights. It can be done. But it takes time and money. If a person under guardianship wants to get their rights back, they may need to pay an attorney. If they have a private guardian who disagrees, they also have to pay their guardian and their guardian’s attorney to oppose the case. Some people under guardianship have trouble finding an attorney or understanding how to initiate the process. This is often due to isolation. It’s much better to try less restrictive alternatives first. You should only pursue guardianship after alternatives like Supported Decision Making (SDM) have not worked.

Power of Attorneys (POAs)

What is the difference between Supported Decision Making and a power of attorney?

A power of attorney allows a person (“principal”) to authorize another person (“agent”) to act on their behalf. It is like making a photocopy of your rights and sharing it with another person. Both you and your agent can exercise your rights. If you don’t like how your agent acts, you can terminate the power of attorney. A power of attorney can be used as part of Supported Decision Making (SDM) or on its own.

SDM allows a person (“decision maker”) to appoint people they trust (“supporters”) to help them make decisions. Each decision maker is different. Each decision maker has their own preference for how they want to be supported. Supporters generally give decision makers advice rather than acting for them. But a decision maker might ask their supporters to do things for them. A decision maker may want their supporter to sell a property or deposit a check for them. They may also want their supporter to decide for them entirely. Indeed, many people trust others to make decisions for them. For example, a person might hire a financial expert to invest their money for them.

A Supported Decision-Making Agreement (SDMA) details what the supporter will do. A power of attorney gives the supporter any additional authority needed to actually do it. For example, a decision maker named Carla wants her mother, acting as her supporter for finances, to write checks for her. Carla signs an SDMA where she details how her mother will assist her. Carla also signs a power of attorney giving her mother the authority to write checks for her.

Once the SDM Bill becomes law, the need for powers of attorney to supplement SDMAs will be greatly reduced. However, authorizing a supporter to take actions other than requesting information or communicating the decision maker’s decisions will still require a power of attorney.

Can I use Supported Decision Making if I have or want a power of attorney?

Yes. Powers of attorney can be used on their own or as part of Supported Decision Making (SDM). Read “What is the difference between Supported Decision Making (SDM) and a power of attorney?”.

For guardianship attorneys

At what stages of litigation can I use Supported Decision Making?

All people with disabilities, whether or not they are under guardianship, can used Supported Decision Making (SDM) under this law. If a person with a disability is under guardianship and wishes to draft an SDM agreement that involves rights that were removed and given to the guardian, the guardian must provide authorization.

SDM will be a powerful tool for guardianship litigators and a new service to offer clients. It can be used at the following stages of litigation:

​(Space for decision making continuum graphic)

Who determines whether someone has the capacity required to sign a Supported Decision-Making Agreement?

Under the proposed Supported Decision Making Agreements Act, an adult may not enter into a supported decision-making agreement unless the adult: (a) enters into the agreement voluntarily and without coercion or undue influence; and (b) understands the nature and effect of the agreement. Just as with other legal documents like wills and powers of attorney, a judge would determine if an adult meets these criteria and thus has the capacity to sign. As happens with wills and trusts, capacity will be presumed unless someone brings a legal challenge in court.

Who is liable for the decisions of the decision maker?

Every person is legally liable for their own acts, whether or not they are under guardianship, have a power of attorney, or use Supported Decision Making.