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August 15, 2022

NYS Governor Hochul Signs Bill Expanding the Decision-Making Rights of Individuals With Intellectual and Developmental Disabilities

On July 26, 2022, NYS Governor Kathy Hochul signed Senate Bill S.7107b/Assembly Bill A.8586b into law, which relates to supported decision-making by people with intellectual, developmental, cognitive, and psychosocial disabilities. The law, codified in Article 82 of the Mental Hygiene Law, acts as a less restrictive alternative to guardianship and promotes “autonomy for people with intellectual and developmental disabilities and empowers them to take an active role in making choices about their own lives.”1 The newly signed bill was an Office of People With Developmental Disabilities (OPWDD) departmental proposal for the past two legislative sessions. It will take effect once appropriate regulations are established in a final promulgation from OPWDD.

Rather than guardianship being the only course for decision-making, the new law creates a new avenue for individuals with intellectual and developmental disabilities to make meaningful decisions about their own lives. Under the law, there is a presumption of capacity when an individual does not have a legal guardian. Capacity, as defined by the law, is similar to the level of capacity needed by a principal to execute a health care proxy. 

The new law allows an individual (the decision-maker), with the assistance of a trusted person in their life (the supporter), to make their own decisions. This process is called supported decision-making. The decision-maker and the supporter must enter into a written agreement (Supported Decision-Making Agreement), describing “the settings in which the individual desires support, the kinds of support they want from each trusted person, and how they want to receive that support.”2 The Supported Decision-Making Agreement must also be signed by a qualified facilitator, who is a person trained to guide the process outlined in the new law. Importantly, the training and qualifications that must be met by a facilitator will be outlined in future OPWDD regulations.

The duties of the supporter are set out in the law, and the supporter must act in a way that is consistent with a fiduciary responsibility. In contrast to legal guardianship, the supporter does not have to answer to anyone and does not have to report to a court. The Supported Decision-Making Agreement can also authorize the supporter to access otherwise confidential information regarding the decision-maker and allows the supporter to be present during conversations with licensed professionals without waiving confidentiality or evidentiary privileges. The legislative findings clearly indicate that the decision-maker is “solely responsible” for any decision reached through the Supported Decision-Making Agreement. As such, supporters can perform their obligations in accordance with the law with assurance of immunity from liability.

The new law is a welcome step toward ensuring that individuals with intellectual and developmental disabilities can exercise important civil liberties.  

Attorneys on Barclay Damon’s Health & Human Services Providers Team are available to assist heath care providers with the supported decision-making process and will continue to monitor any developments and best practices.

If you have any questions about the content of this alert, please contact Paul Kietzman, of counsel, at pkietzman@barclaydamon.com; Dena DeFazio, associate, at ddefazio@barclaydamon.com; or another member of the firm’s Health & Human Services Providers Team.3

                                        

1On 32nd Anniversary of the Americans With Disabilities Act, Governor Hochul Signs Legislative Package to Uphold and Strengthen Rights of People with Disabilities, Office of Governor Kathy Hochul  (July 26, 2022), https://www.governor.ny.gov/news/32nd-anniversary-americans-disabilities-act-governor-hochul-signs-legislative-package-uphold. 
2Id. 
3The authors thank Barclay Damon LLP summer associate Elise Butler for her assistance with this legal alert.

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