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The Transformation of Guardianship Decision-Making in New York: Article 82

December 4, 2023

In a significant leap forward for individuals with intellectual and developmental disabilities, Article 82 of the New York Mental Hygiene Law (Article 82) was enacted earlier this year. This groundbreaking law paves the way for supported decision-making in New York, offering new avenues for these individuals to lead productive and independent lives. 

At Tiveron Law, we recognize the importance of staying up-to-date with legal developments that impact our clients’ lives. In this blog post, we explore the intricacies of Article 82 and the supported decision-making process it introduces, aiming to provide a comprehensive understanding of this transformative change.

Guardianships under Article 17-A

Historically, parents with intellectually or developmentally disabled children often turned to guardianship under Article 17-A of the Surrogates Court Procedure Act (Article 17-A), which dates back to 1966. However, this choice has been criticized by disability advocates for vesting guardians with extensive powers over financial and medical decisions, often without adequate safeguards. This led to comparisons between Article 17-A and Article 81 guardianships, typically designed for adults facing diminishing functional capabilities. Notably, Article 81 requires a demonstration that guardianship is the least restrictive option and mandates legal representation for the allegedly incapacitated person.

Article 81 vs. Article 17-A

Article 81 guardianships stand out due to their tailored approach, requiring proof of necessity and ensuring legal representation for the incapacitated person. In stark contrast, Article 17-A lacks these protective measures, raising concerns among advocates and disabled individuals. This disparity has prompted a search for alternatives to Article 17-A guardianships.

Supported Decision-Making Defined

Supported decision-making is a novel approach that empowers the disabled individual, referred to as the “decision-maker,” by involving “supporters” who assist them in making decisions about their financial and healthcare matters. These decisions are documented in what is known as a “supported decision-making agreement” (SDMA).

Role of Facilitators

Facilitators, authorized by the New York Office for People with Developmental Disabilities (OPWDD), play a pivotal role in the supported decision-making process. They educate and collaborate with decision-makers and supporters, guiding them through the intricacies of the process. In the near future, OPWDD is expected to provide detailed regulations defining the roles and responsibilities of facilitators.

Supported Decision-Making Agreement (SDMA)

An SDMA is a legally binding agreement signed by the decision-maker and their supporters. It outlines the scope of decisions the decision-maker will receive assistance with and the supporters’ role in the process. If a facilitator is involved in the agreement, they will sign it and confirm it adheres to recognized facilitation and education processes. Additionally, the SDMA must be witnessed by two people or notarized to ensure its validity.

Effect of the SDMA

When properly drafted and signed by a facilitator, decisions made under the SDMA carry legal weight and can be enforced by a court. For instance, if a disabled individual signs a lease with a landlord under the provisions of an SDMA, that lease becomes a legally enforceable agreement.

The Future of Supported Decision-Making

Disability advocates are optimistic about the potential of supported decision-making as a viable alternative to Article 17-A guardianships. The future may change Article 17-A, making these guardianships more tailored to individual needs.

While there will always be a need for Article 17-A guardianships, especially for those with severe disabilities, supported decision-making offers a way to assist without compromising control and autonomy.

Awaiting OPWDD Regulations

The full realization of supported decision-making in New York hinges on the forthcoming regulations from OPWDD. However, even before these regulations are in place, disabled individuals and their families can begin exploring how this process may work for them by consulting trusted advisors experienced in this area.

Article 82 and its supported decision-making process represent a significant step forward in empowering individuals with intellectual and developmental disabilities in New York. This new law offers increased autonomy and control over their lives by providing alternatives to the often sweeping guardianship powers under Article 17-A. As regulations from OPWDD take shape, we anticipate further clarity and guidance in the implementation of supported decision-making, ultimately ensuring that the rights and choices of disabled individuals are respected and protected.