Any person in Wisconsin over the age of 18 is legally an adult and is presumed to be able to manage his or her own finances, choose where to live, consent to medical treatment, vote, make contracts, marry, and exercise his or her own legal rights as an adult. This presumption does not change because a person has a disability.
When a person is unable to do some or all of these, some form of supported decision making is needed. It is important that families start this conversation early and learn about the full range of options. While guardianship is the most widely used legal tool, there is a growing use of less restrictive options to support a young adult’s ability to have control over his/her own life, allowing them to determine their own future as an adult.
What is Supported Decision Making?
Supported decision making is an alternative to guardianship through which people use friends, family members and professionals to help them understand situations and choices they face, so they may make their own decisions without the “need” for guardianship. It is an emerging approach to providing decision-making assistance without imposing any long-term legal limitations on rights or personal liberties.(Blanck & Martinis, 2015)
Decision-Making – A Skill that Requires Practice and Experience1
Decision-making is a learned skill. If we allow children to choose what they wear, eat or want to do for fun we encourage their independence, their self-confidence and their ability to make decisions. All people make mistakes in decision making at times and these mistakes usually help them make better decisions in the future. If youth with disabilities are not given the opportunity to choose and make mistakes they are less likely to develop these skills and may not believe they are capable of decision making as adults.
As a family considers a young adult’s abilities to make his or her own decisions they should think about:
- What do you worry about as you consider your child’s future – is guardianship necessary or would a less restrictive option do?
- Does your child have skills and strengths in some areas of decision-making, but not in others (for example, could they decide what classes they want to take but not be able to make financial decisions)?
- Would support from friends, family, technology or professionals be enough to assist the young person with their decisions?
- How important is the decision they need to make and what are the consequences of a wrong decision?
Legal Tools to Support Decision-Making
o Release of Information: One option for supporting someone with a disability is to work with health care providers, banks and schools to have your adult child sign a release of information form. This will allow a parent, family member or guardian to talk with providers, schools and financial institutions and assist with making decisions. No attorney is needed.
o A Power of Attorney for Finance (POA-F) is a document that authorizes another person (the agent) to handle all the financial affairs of the individual (the principal). Families can use a standard state form (see resources below) to complete a POA-F and an attorney may not be needed.
o A Power of Attorney for Health Care (POA-HC) authorizes the agent to make health care decisions for the principal, consistent with the terms of the document and based on the wishes of the principal. Families can use a standard state form (see resources below) to complete a POA-HC and an attorney may not be needed.
- A Supported Decision Making (SDM) Agreement is a new legal tool in Wisconsin that allows a person to formally designate others they want supporting them and gives the supporter a seat at the table when decisions are being made, allowing the person to consult with their supporter when and if they need it. Families can use a standard form (wisconsin.gov/library/f-02377.htm) and an attorney may not be needed.
- Guardianship is a legal process where a court decides if a person lacks “capacity” to make decisions for themselves and there are no less-restrictive alternatives than guardianship. In Wisconsin, there is an option for Full Guardianship or Partial (limited) Guardianship. Once this has been established, the guardian has custody and control over all decisions made for the “ward”. While it is possible to complete the guardianship process without legal representation, most families work with an attorney. It is important to find an attorney who is familiar with the different legal options. The Wisconsin Guardianship Support Center (GSC) can provide a list of attorneys. There may be some options for low-cost legal assistance for those who cannot afford to hire an attorney.
National Resource Center for Supported Decision Making: www.supporteddecisionmaking.org
Supported Decision Making booklet – wi-bpdd.org/index.php/SupportedDecision-Making/
Supported Decision Making Agreement Form– https://www.dhs.wisconsin.gov/library/f-02377.htm
Wisconsin Guardianship Support Center: 1-855-409-9410or gwaar.org/guardianship-resources
Advance Directives State of WI Forms: www.dhs.wisconsin.gov/forms/advdirectives/index.htm