Supported Decision-Making: A Viable Alternative to Guardianship?

47 Pages Posted: 13 Oct 2012 Last revised: 29 Apr 2013

Nina A. Kohn

Syracuse University - College of Law

Jeremy A. Blumenthal

Syracuse University - College of Law

Amy T. Campbell

State University of New York - Upstate Medical University

Date Written: April 29, 2013

Abstract

The law has traditionally responded to cognitive disability by authorizing surrogate decision-makers to make decisions on behalf of disabled individuals. However, supported decision-making, an alternative paradigm for addressing cognitive disability, is rapidly gaining political support. According to its proponents, supported decision-making empowers individuals with cognitive challenges by ensuring that they are the ultimate decision-maker but are provided support from one or more others, giving them the assistance they need to make decisions for themselves. This article describes supported decision-making and its normative appeal. It then provides a descriptive account of how supported decision-making works based on the empirical literature on supported decision-making as well as that on shared decision-making, a related model used in medical contexts. The article shows how employing supported decision-making in lieu of guardianship, or integrating it into the guardianship system, has the potential to promote the self-determination of persons with intellectual and cognitive disabilities consistent with international and national legal norms. However, we find that, despite much rhetoric touting its advantages, little is known about how supported decision-making processes operate or about the outcomes of those processes. Further research is necessary to design and develop effective supported decision-making systems. We therefore propose a series of research questions to help inform policy choices surrounding supported decision-making.

Keywords: supported decision-making, guardianship, intellectual disability, Convention on the Rights of Persons with Disabilities, civil rights, human rights, cognitive impairment

Suggested Citation

Kohn, Nina A. and Blumenthal, Jeremy A. and Campbell, Amy T., Supported Decision-Making: A Viable Alternative to Guardianship? (April 29, 2013). Penn State Law Review, Vol. 117, No. 4, 2013. Available at SSRN: https://ssrn.com/abstract=2161115 or http://dx.doi.org/10.2139/ssrn.2161115

Nina A. Kohn (Contact Author)

Syracuse University - College of Law ( email )

Syracuse, NY 13244-1030
United States
315-443-6565 (Phone)

Jeremy A. Blumenthal

Syracuse University - College of Law ( email )

Syracuse, NY 13244-1030
United States
315-443-2083 (Phone)
315-443-5394 (Fax)

Amy T. Campbell

State University of New York - Upstate Medical University ( email )

Syracuse, NY 13210
United States

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