On April 24, 2019, Senate Enrolled Act 380 was signed into law, amending the Indiana guardianship code to add new sections addressing Supported Decision Making (IC § 29-3-14) and Less Restrictive Alternatives (IC § 29-3-1-7.8). The amendments send at least one clear message: a full-blown Guardianship is not the only option.
Traditionally, when an incapacitated person needs assistance in making significant life decisions, a guardian or other agent, such as a power of attorney or healthcare representative, can be appointed to assist and ultimately make these decisions on behalf of the incapacitated individual. This approach and these options do not always account for the level of assistance needed by the individual and can overreach to the extent that the individual is not permitted to make decisions without approval of their agent (such as with a guardianship). The new law not only supports an individual’s decision making process, but honors and acknowledges a broad spectrum of assistance by requiring less restrictive alternatives in guardianship petitions.
New I.C. § 29-3-1-7.8(a) of the Guardianship Code defines “Less restrictive alternatives” as “an approach to meeting a person’s needs that restricts fewer rights of the person than would the appointment of the guardian” and includes a supported decision making agreement (as defined in I.C. § 29-3-14-2).
Supported Decision-Making (“SDM”) agreements can be used throughout any arrangement, whether in or out of a guardianship allowing an incapacitated individual to make some decisions without the guardian. These agreements are a means of promoting an individual’s decision-making skills, which in turn could lead to greater self-determination.
Supported decision making allows individuals to use their own support systems to make decisions rather than having a guardian make the decision for them. A Supported Decision-Making agreement between an individual and a supporter allows the supporter to: (1) obtain and understand information relevant to an individual’s decisions, (2) be provided an explanation of the options, responsibilities, and consequences of an individual’s decisions, (3) communicate decisions to the appropriate people, (4) assist in, but not make, decisions for the individual that has chosen them for guidance.
There are many benefits to SDM agreements, most notably, allowing the individual to retain decision-making authority. However, as with any agency agreement, there are risks as well. Inclusion of less restrictive means and supported decision making in the Guardianship Code, as adopted, may provide more opportunity for fiduciary abuse than intended. For example, the legislature failed to include basic fiduciary duties into the definition of “supporter” making it difficult if not impossible to provide a breach of fiduciary duty claim. Without basic duties defined, the statute provides supporters an opportunity to exploit vague language to take advantage of the individual who the supporter is assisting. The statute, as currently written, also fails to articulate any liability for breach of duty on behalf of the supporter.
While Indiana’s new Supported Decision Making and Less Restrictive Means statutes may be lacking in specific language necessary to hold “supporters” to the fiduciary standard required to protect the individuals they are supporting, the laws clearly place Indiana as a state acknowledging the incapacity spectrum and the level of assistance needed. The new laws provide an alternative to all-encompassing guardianships by promoting less restrictive means, thereby retaining a level of an individual’s independence.
The information provided in this article does not, and is not intended to, constitute legal advice nor does it establish an attorney/client relationship. To discuss how supported decision making agreements and less restrictive alternatives may apply to your case, please contact Hodges and Davis attorneys, Benjamin T. Ballou or Emilie E.D. Hunt.
Hodges and Davis, P.C. – November 2019