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Supported Decision Making Comes to Arizona

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Supported decision making

Just a few weeks ago we told you about the Arizona legislature’s bill to create a “supported decision making” law in our state. We told you then that there was no chance the bill would even get a committee hearing, much less become a law.

We were wrong. In a flurry of last-minute activity, the legislature cobbled together two different guardianship bills. With no committee review or general discussion, the legislature overwhelmingly adopted the hybrid measure. Without much fanfare, Governor Katie Hobbs signed the bill on June 20, and it will become effective in mid-November.

The new law will provide an alternative to guardianship in many cases. Or at least that’s the hope of its sponsors. But what does the phrase (and the law) mean in actual practice?

What is “supported decision making”?

The whole idea behind the new law is to permit adults with disabilities to seek assistance but not give up their own autonomy. Imagine a complicated medical decision facing an adult with a disability. Can they weigh the options and come to a responsible decision? Might the process lead to anxiety and confusion? Wouldn’t it be great to have someone — someone of their own choice — available to help work through the process, and eventually help the individual sign the consents and authorizations?

At least that’s the idea. Could our imaginary adult, despite their disability, agree in advance with a supporter that they will fill that role if and when the time comes? That’s exactly what the supported decision making law imagines — and encourages.

But isn’t that just a new name for a health care agent?

Not exactly. A health care power of attorney can give someone authority to make decisions for you. The supported decision making agreement imagines the other person making decisions with you.

Of course, a good health care agent will try to involve the principal in decision-making as much as possible. But there’s nothing in the health care power of attorney laws that compels them to seek that participation.

And, more critically, the supported decision making statute does not allow the “supporter” to sign the medical documents for the person with a disability. It does allow the supporter to help “in communicating the adult’s decisions to the appropriate person.” But the agreement terminates if the individual becomes incapacitated. That can happen if a guardian is appointed, for instance.

Which choice is better?

It’s a very good question, and hard to answer. We imagine that many individuals with a disability might consider signing both a health care power of attorney AND a substituted decision making agreement. That should help make clear that they want to give authority to their selected choice, but to also direct them to engage in discussions about health care issues.

If the signer’s condition deteriorates and they become incapacitated, the supported decision making agreement ends. But a health care power of attorney does not end. That suggests that the power of attorney is a better long-term solution, and better at avoiding the need for guardianship down the road.

One thing seems pretty clear, though. Either a health care power of attorney OR a supported decision making agreement is probably a better choice than a guardianship for a reasonably communicative person with a disability. Of course both the power of attorney and the supported decision making agreement are revocable — meaning that the signer can end the authority at any time. But our experience over the years is that doctors, hospitals and clinics are interested in helping, not obstructing. They just need some authority in order to engage family members or other supportive individuals.

Sounds great! Where do I sign up?

Not so fast! The new law won’t be effective until 90 days after the legislature adjourns. Adjournment is now predicted to be August 11. If the legislature actually adjourns that day, the supported decision making agreement would be an option on or after November 9, 2023.

Some time before that date we’ll be posting a cleaned-up version of the form (it’s right there in the law) for people who want to use it. But not yet. If you want to get a copy as soon as we’re ready, feel free to call or email us; we’ll add you to the circulation list.

Is that all?

Actually, no. We haven’t mentioned all the other changes in the same recently-signed law. We’re not excited about them, but they’ll be effective in mid-November, too. They should end up increasing the cost of guardianship and conservatorship proceedings, and make life more difficult for guardians and conservators (and their lawyers, who already have to grapple with a bunch of complicated notice requirements).

Was that the intent? No, probably not — the actual intent was to protect individuals who are (or might become) subject to guardianship or conservatorship proceedings. We are doubtful about most of the new provisions, though. We can set that discussion aside for another day, closer to the effective date of the new law.

2 Responses

  1. What types of disability would an individual have for this new document to be advantageous?

    1. Jim: any disability, really — but the statute was particularly promoted by the parents and family of developmentally disabled (or delayed) adults. To be useful in an individual’s circumstance, they would need to be capable enough to discuss the situation but probably not capable enough to sign a power of attorney. That’s a narrow window.

      Fleming & Curti, PLC

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Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.