9 comments
Chimes has reviewed the guidance, including the Draft Agreement for Supported Decision Making, and has no concerns at this time. We think this is a positive step towards helping people realize the full breadth of their independence.
The following quote appears on Page 3 of the Proposed Document:
"You must be 18 years old or older and not have a court-appointed legal guardian or conservator."
The quoted language appears to be incorrect since an individual who has a conservator ONLY, and who DOES NOT ALSO have a guardian, would ONLY be legally incompetent with regard to financial matters.
Such a person would remain legally competent to create and sign an advance directive, power of attorney or supported decision making arrangement for medical or other non-financial matters.
The following language appears on Page 4 of the Proposed Document:
"These included [typo]:...Durable Power of Attorney...Advanced [typo] Medical Directive"
Please correct the typos indicated above.
The following language appears on Page 4 of the Proposed Document:
"Representative Payee- A person that helps pay your bills, budget and makes sure you have money for the things you need."
The definition quoted above should be clarified to specify that Representative Payees are persons whom the Social Security Administration (SSA) appoints to handle an individual's Social Security benefits. A Representative Payee does not have authority to handle an individual's non-SSA funds unless she is separately authorized to do that (such as by a Durable Power of Attorney or other legal authority).
By the same token the SSA will not recognize, or share an SSA beneficiary's information with, a person who is authorized under a power of attorney to conduct business on behalf of the beneficiary, but who has not also been appointed as that beneficiary's representative payee.
Please correct misspelling: "HIPPA Release Form" should be "HIPAA Release Form"
The term "Educational Release Form" is used.
dLCV suggests that clarification should be added to specify that this term may refer to either an Educational Transfer of Rights or an Educational Power of Attorney.
Paid professionals generally do not serve as an AR due to the potential conflict of interest. We recommend that support coordinators and other paid professionals should also not serve as supporters, as they are tasked with empowering the individuals they serve to make their own decisions, as opposed to taking an active role in the process. For a paid professional to operate as a supporter could pose potential conflicts of interest, blur boundaries, and create challenges upon change of employment.
Recommend adding the last sentence below to Step 4 under the category, Decide Who You Want to Support You:
Step 4: Decide who you want to support you.
Supported decision-making agreement are made up of supporters and decision makers. You are the decision maker and the people you select to help you are the supporters. You can choose anyone you want to be your supporter and you can choose to have many supporters. Some supporters might help you with one thing and others might help you with several things. The decision is up to you. You can also choose someone to be a supporter and your supported decision-making facilitator. This person helps you make sure that the agreement is working and everyone is doing their part. You do not have to have a supported decision-making facilitator if you do not want one. When thinking about who you want as a supporter, think about people that you trust and that know what you want and do not want in your life. You can use the Relationship Map tool to help you think about and write down people who help you and might be your supporters. It is best to not choose anyone who is a paid support for you currently so there are no misunderstandings about their role in your life.
On page 4, under "Step 5: Fill Out Your Supported Decision-Making Agreement" I suggest the following minor edits:
Additionally, the definition of "Representative Payee" is far too broad. A representative payee only makes decisions about a beneficiary's public benefits -- most frequently it refers to Social Security payees. The VA system has "VA Fiduciaries" in a similar role, and other agencies may also have payees to make decisions about the use of public benefit payments.
The Virginia Academy of Elder Law Attorneys (VAELA) supports the retention of independent decision-making authority by individuals with ID, DD, and other cognitive challenges, whenever feasible and appropriate. The SDM Agreements set forth in this Guidance may be very useful for informing supported decision-makers when an individual has capacity. They could also be very helpful to guardians and conservators, as substitute decision makers, in understanding their roles in supporting the individual’s independence, by fleshing out the decision-maker's interests, concerns, and perspectives.
But we have serious concerns that the proposed SDM Agreements may also contribute to the belief that an SDM Agreement is a substitute for a Power of Attorney and Advance Medical Directive. We believe that virtually every adult with the requisite capacity to do so should consider executing a Power of Attorney and Advance Medical Directive. Our concern that SDM Agreements will be used in place of these documents is magnified by the proposed “Purpose” statement on the first page of the document. In order to minimize this concern, we suggest replacing the fourth sentence in that section with this:
SDM Agreements are not legally binding or enforceable, and while they are a good support mechanism for supporters, as well as for agents under powers of attorney and advance medical directives, guardians, and conservators, they are not a replacement for any of these.
In addition, we think SDM Agreements would provide greater utility if they included a “black box warning” that reminds the decision-maker and supporters that these other documents remain necessary. We suggest adding this Black Box warning under Step 1, page 3 of 47, as follows:
This warning should also be included on the Agreement itself.
We continue to have grave concerns about promotion of any SDM Agreement, since these “Agreements” are not, in fact, legal contracts, legally binding, or legally enforceable, and the use of that term will be confusing. But because the process of working through the template, as well as the “product” then created, makes this potentially a very valuable tool, it should more appropriately be called a “Statement of Intent” or “Supported Decision-Making Plan.” We encourage development of this and other tools, to promote and encourage autonomy and independence in decision-making.
Stephen Burns, Amy McCullough, Rhona Levine, co-chairs
VAELA Public Policy Committee