Legislating Supported Decision-Making

Abstract

Supported decision-making is a process by which individuals who might otherwise be unable to make their own decisions do so with help from others. It has the potential to transform the lives of individuals with cognitive and intellectual disabilities by enabling them to function as legal actors, and not merely legal subjects. Fueled by this promise, by mounting concerns about guardianship, and by rhetoric surrounding the Convention on the Rights of Persons with Disabilities, states are rapidly adopting statutes that purport to enable and promote supported decision-making and advance the rights of persons with disabilities. This article shows how these statutes typically do neither. Rather, the statutes limit the rights of individuals with disabilities and place them at increased risk of exploitation. The article further shows that the wide gap between the concept of supported decision-making and its actual implementation in state legislation is the result of a confluence of political agendas, but that an alternative, person-centered approach is essential if supported decision-making is actually to empower individuals with disabilities. Finally, it outlines five concrete legislative approaches states could adopt—separately or in combination—to encourage supported decision-making that will actually advance the rights of persons with disabilities and reduce restrictive guardianships.