Everybody Into the Pool!

Issue March/April 2022 April 2022 By Kathryn M. Barry
Probate Law Section Review
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Kathryn M. Barry

When considering estate plans, certain roles are discussed as critical, such as attorney-in-fact, personal representative, and health care proxy agent, perhaps beneficiaries and trustee. The choice of those nominated to fill these roles is well documented, and their powers are clearly defined in the correct documents. There are other roles that are only needed if an estate plan is not in place or fails, such as a guardian or conservator, with the person chosen by the court and the duties defined by statute. In a bill currently pending in the Massachusetts House, a new role would be created, that of supporter. 

When contemplating decisions surrounding end-of-life issues, death, finances, and caretakers for children, it can be useful to have conversations with those who will be affected by these decisions. Many attorneys will encourage clients to have tough conversations with friends and family when considering who will serve in various roles or after the documents are executed. House Bill 272 goes a step further by formalizing some of the conversations into agreements called supportive decision-making agreements. In these agreements, a supporter and the decision-maker enter into an agreement to engage in supportive decision-making. Supportive decision making is defined as “the process of supporting and accommodating the decision-maker, without impeding the self-determination of the decision-maker, in making life decisions, including, but not limited to, decisions related to where the decision-maker wants to live; the services, supports, financial decisions, and medical care the decision-maker wants to receive; whom the decision-maker wants to live with; or where the decision-maker wants to work.”1 The bill’s language focuses on the supporter assisting the decision-maker in collecting information, assisting the decision-maker in understanding the information presented, and assisting the decision-maker in clearly expressing their wishes. The bill requires: 1) the agreements to be in writing and to describe the decisions the decision-maker wants assistance with, 2) the supporter agreeing to serve, 3) that the agreement can be revoked or amended at any time, and 4) a provision stating that the supporter may report suspected abuse or neglect; there is no requirement for specific language. The agreements are meant to be personalized by the decision-maker and can be as broad or narrow as the decision-maker dictates.

Although supportive decision-making agreements can be about many different issues, in theory, one clear use is as an alternative to guardianship. The bill states that supportive decision-making agreements shall be offered as an alternative to adult guardianship. The bill requires a supportive decision-making agreement to be presented by schools to a family as an alternative if they are considering placing a student under guardianship. It also requires that the Department of Health and Human Services develop a training program to educate about supportive decision-making agreements as a way to avoid the need for guardianship. This immediately raises the question of oversight. There is nothing in the bill requiring the supporter to answer to an outside party. Although a third party can petition the Probate and Family Court to revoke a supportive decision-making agreement if they can prove abuse or neglect, there is no annual review of the supporters’ actions by the Probate and Family Court — thus resulting in fewer protections than guardianship. 

In addition, depending on the language of the supportive decision-making agreement, a supporter could be considered a quasi-heath care agent or quasi-attorney-in-fact. They will be able to execute similar or the same powers as those granted in health care proxies and powers of attorney, while the decision-maker can still make decisions themselves. For example, the bill specially mentions the supporter keeping information protected under HIPAA confidential. As these agreements are binding unless revoked by the decision-maker, estate planners will have to consider how to handle them. Can they become part of an estate plan, or will estate plans have to override them? Will a provision revoking supportive decision-making agreements become part of the boilerplate for health care proxies and durable powers of attorney, or, since each agreement is personalized, will this be decided on a case-by-case basis? At a minimum, estate planning attorneys may need to add a question about supportive decision-making agreements to the client intake form. 

If House Bill 272 is passed, it would not be the first. Nine states have adopted supportive decision-making agreements, with Rhode Island joining the list in 2019. There is still time for input. The bill is currently under review by the Joint Committee on Children, Families and Persons with Disabilities, meaning the language is still subject to change and the final vote has yet to be scheduled. 

Kathryn M. Barry
is an attorney focusing on estate administration and estate planning. She is the legislative liaison for the Massachusetts Bar Association’s Probate Law Section Council. She received her J.D. from New England Law Boston and her LLM from Boston University School of Law.

 House Bill 272.