RD443 - Report of the Workgroup on Supported Decision-Making – October 28, 2020

Executive Summary:

*This report was replaced in its entirety by the Department of Behavioral Health and Developmental Services on October 29, 2020.

Chapter 855 of the 2020 Acts of Assembly (Senate Bill 585) directed the Department of Behavioral Health and Developmental Services (DBHDS) to convene a workgroup to study the use of supported decision-making agreements in Virginia and develop recommendations around its use. Supported decision-making, or SDM, is a model that allows individuals to identify supporters to provide assistance in decision-making without losing autonomy. For some individuals, use of SDM may obviate the need for a substitute decision-making arrangement, including guardianship. For other individuals, SDM can be used within substitute decision-making arrangements (such as guardianship) to help the substitute decision-maker understand the individual’s preferences and maximize the individual’s autonomy.

SDM is currently in use throughout the country, though specific requirements and levels of formalization vary from state to state. In Virginia, SDM has been studied in both 2014 and 2019, resulting in recommendations to codify SDM as a less restrictive alternative to guardianship that must be considered by a guardian ad litem following a petition for guardianship, for example. Currently, individuals in Virginia may enter into SDM agreements informally, but no law specifically recognizes them.

The Workgroup agreed on core principles that should guide the conversation around SDM in Virginia:

1. That every individual should be presumed capable of making his or her own decisions.

2. When an individual requires assistance in making decisions, the least restrictive option that meets the individual’s needs should be pursued, and every effort should be made to maximize an individual’s autonomy and independence.

3. Supporters, guardians, substitute decision-makers, and other agents should always take into consideration an individual’s expressed personal preferences to the extent appropriate.

4. Making good decisions takes practice and individual growth. Everyone should have the opportunity to learn and grow from making poor decisions, sometimes called “Dignity of Risk". Poor decision-making should not be motivation for restricting an individual’s rights through guardianship or substitute decision-making.

Finally, the Workgroup made the following recommendations:

1. Elevate the use of SDM while avoiding over-formalization, which may include introducing a broad definition or general recognition of SDM into Virginia's Code in order to encourage consideration of alternatives to guardianship in cases in which an individual may be capable of making many of his or her own decisions with additional support. The inclusion of SDM would also emphasize recognition that it is a best practice for substitute decision-makers to seek input and provide guidance on an individual's preferences. SDM should also be considered for recognition in regulations relating to authorized representatives.(*1)

2. Invest in education and training, which is critical to the success of SDM and requires concerted time, effort, and resources. This should target key groups that may benefit from SDM as well as their communities, healthcare and service providers, legal advocates, educators.

3. Support research and data collection including the efficacy of education and training in increasing the use of SDM, health outcomes for individuals using SDM, and any subsequent reductions in number of guardianship petitions, and determine criteria for assessing success of SDM.
(*1) 12VAC35-115-146. Authorized Representatives. An “Authorized Representative " is an individual designated by a DBHDS-licensed provider to provide consent or authorization for health care decisions relating to that provider, for an individual who lacks capacity.