If you are under guardianship, it may be possible to try out supported decision-making to see if it works for you. In our pilot projects, we have worked with people who were under guardianship and chose to explore supported decision-making with their guardians. We have found this is an effective way for individuals and their supporters to understand whether SDM would be a better fit instead of guardianship. However, this approach raises complicated issues that the individual, the guardian, and all supporters should consider in advance of beginning to use SDM.
While there is a guardianship in place, the guardian retains the legal authority to make decisions on behalf of the individual in the areas that have been designated by the court. Because the guardian still has legal authority to make decisions for the individual, it is important that the guardian fully understands the principles and values of autonomy that are embedded in SDM and is prepared to have the individual make decisions with help from supporters.
It is also important for the individual to understand he or she has control of who he or she selects as supporters and that it is the individual’s choice whether to select the guardian as a supporter.
If the guardian is not a supporter, the individual and supporters should discuss how they will approach SDM and communications with the guardian. This is particularly important if the guardian is a paid guardian (versus a family member or friend).
Consider how you will work with third parties like health care providers when using SDM while under a guardianship. Even if the individual has an SDM agreement and is making his or her own decisions with support, the guardianship remains in place and third parties, like a doctor, may look to the guardian for the decision. This can be an educational opportunity for these third parties to learn more about SDM.
If the eventual goal is to remove or end the guardianship, trying out SDM while under guardianship may make removing the guardianship easier.
If the individual has successfully made decisions with support using the SDM model, this information can be presented to the court as a basis for removing the guardianship. The court can consider this evidence when deciding whether there should still be a guardianship. In the U.S., there have been a number of cases where a court removed a guardianship because the individual was using SDM.
At least one state laws have specific provisions that address the use of SDM while under guardianship. For example, Alaska’s SDM law addresses the use of SDM under guardianship and imposes specific requirements. See Alaska Stat. § 13.56.180. If you are in a state with an SDM law, you should consult with an attorney to see how this applies to you.
