Alabama 2022 Regular Session

Alabama House Bill HB522 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 HB522
2	2	2 218821-1
3	3	3 By Representative Isbell
4	4	4 RFD: Judiciary
5	5	5 First Read: 29-MAR-22
6	6
7	7	Page 0 1 218821-1:n:03/14/2022:GP*/ma LSA2022-974
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14	14	8 SYNOPSIS: Under existing law, an adult with a
15	15	9 disability may be the subject of a guardianship,
16	16	10 conservatorship, or protective arrangement.
17	17	11 Also under existing law, an adult with a
18	18	12 guardianship, conservatorship, or protective
19	19	13 arrangement may not make certain major decisions
20	20	14 for himself or herself. The guardian, conservator,
21	21	15 or protective arrangement generally holds the
22	22	16 decision-making authority.
23	23	17 This bill would provide that, in lieu of a
24	24	18 guardianship, an adult may enter into a supported
25	25	19 decision-making agreement with supporters who may
26	26	20 assist and advise the adult with making certain
27	27	21 decisions without impeding the adult's
28	28	22 self-determination.
29	29	23 This bill would also provide for the
30	30	24 procedures and limitations related to a supported
31	31	25 decision-making agreement.
32	32	26
33	33	27 A BILL
34	34	Page 1 1 TO BE ENTITLED
35	35	2 AN ACT
36	36	3
37	37	4 Relating to guardianships and conservatorships; to
38	38	5 create the Colby Act; to provide for a supported
39	39	6 decision-making agreement as an alternative to a guardianship;
40	40	7 and to provide the scope and limitations of a supported
41	41	8 decision-making agreement.
42	42	9 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
43	43	10 Section 1. This act shall be known and may be cited
44	44	11 as the Colby Act.
45	45	12 Section 2. For the purposes of this act, the
46	46	13 following terms shall have the following meanings:
47	47	14 (1) SUPPORTED DECISION-MAKING. The process of
48	48	15 supporting and accommodating an adult in the decision-making
49	49	16 process without impeding the self-determination of the adult.
50	50	17 This term includes assistance in making, communicating, and
51	51	18 effectuating life decisions.
52	52	19 (2) SUPPORTED DECISION-MAKING AGREEMENT. A written
53	53	20 agreement detailing decision-making supports and
54	54	21 accommodations that an adult chooses to receive from one or
55	55	22 more supporters.
56	56	23 (3) SUPPORTER. An individual at least 18 years of
57	57	24 age who has voluntarily entered into a supported
58	58	25 decision-making agreement with an adult and is designated as
59	59	26 such in a supported decision-making agreement.
60	60	Page 2 1 Section 3. (a) An adult may not enter into a
61	61	2 supported decision-making agreement as an alternative to
62	62	3 guardianship unless the adult meets both of the following
63	63	4 conditions:
64	64	5 (1) The adult enters into the agreement voluntarily
65	65	6 and without coercion or undue influence.
66	66	7 (2) The adult understands the nature and effect of
67	67	8 the agreement.
68	68	9 (b) An adult may make, change, or revoke a supported
69	69	10 decision-making agreement.
70	70	11 (c) A court may not consider an adult's execution of
71	71	12 a supported decision-making agreement as evidence of the
72	72	13 adult's incapacity. The existence of an executed supported
73	73	14 decision-making agreement does not preclude the adult from
74	74	15 acting independently of the supported decision-making
75	75	16 agreement.
76	76	17 (d) An adult may not enter into a supported
77	77	18 decision-making agreement under this section if the agreement
78	78	19 supplants the authority of a guardian of the adult.
79	79	20 Section 4. (a) A supporter shall do all of the
80	80	21 following:
81	81	22 (1) Support the will and preference of the adult and
82	82	23 not the supporter's opinion of the adult's best interest.
83	83	24 (2) Act honestly, diligently, and in good faith.
84	84	25 (3) Act within the scope set forth in the adult's
85	85	26 supported decision-making agreement.
86	86	27 (4) Avoid conflicts of interest.
87	87	Page 3 1 (5) Timely notify the adult in writing, in the
88	88	2 adult's preferred language and mode of communication, of his
89	89	3 or her intent to resign as a supporter.
90	90	4 (b) A supporter is a fiduciary and shall make and
91	91	5 communicate decisions in cooperation with the adult and
92	92	6 preserve the adult's authority to make decisions.
93	93	7 (c) A supporter shall not:
94	94	8 (1) Exert undue influence upon the adult.
95	95	9 (2) Receive a fee or compensation for services
96	96	10 performed in the role of supporter.
97	97	11 (3) Obtain, without the consent of the adult,
98	98	12 information for a purpose other than assisting the adult in
99	99	13 making a specific decision authorized by the supported
100	100	14 decision-making agreement.
101	101	15 (4) Obtain, without the consent of the adult,
102	102	16 nonpublic personal information, as defined by 15 U.S.C. §
103	103	17 6809(4).
104	104	18 (5) Act outside the scope of authority provided in
105	105	19 the supported decision-making agreement.
106	106	20 (d) A supporter who is expressly given relevant
107	107	21 authority in a power of attorney may act within the scope of
108	108	22 that authority to sign instructions or other documents on
109	109	23 behalf of the adult, or to communicate or implement decisions
110	110	24 made by the adult.
111	111	25 (e) A request or decision made or communicated with
112	112	26 the assistance of a supporter in conformity with the supported
113	113	27 decision-making agreement shall be recognized as the request
114	114	Page 4 1 or decision of the adult for the purposes of any provision of
115	115	2 law.
116	116	3 Section 5. (a) A supported decision-making agreement
117	117	4 shall meet all of the following requirements:
118	118	5 (1) Name at least one supporter.
119	119	6 (2) Describe the decision-making assistance that
120	120	7 each supporter may provide to the adult and how supporters may
121	121	8 work together.
122	122	9 (3) If the adult is subject to a limited
123	123	10 guardianship as provided by Section 6 of this act, be executed
124	124	11 by the adult's guardian.
125	125	12 (4) Be in writing, dated, and signed by the adult in
126	126	13 the presence of a notary public.
127	127	14 (5) Contain a separate consent signed by each
128	128	15 supporter named in the agreement indicating each of the
129	129	16 following:
130	130	17 a. The supporter's relationship to the adult.
131	131	18 b. The supporter's willingness to act as a
132	132	19 supporter.
133	133	20 c. The supporter's acknowledgement of his or her
134	134	21 duties as a supporter.
135	135	22 (b) A supported decision-making agreement may do any
136	136	23 of the following:
137	137	24 (1) Appoint more than one supporter.
138	138	25 (2) Appoint an alternate supporter to act in the
139	139	26 place of a supporter under circumstances specified in the
140	140	27 agreement.
141	141	Page 5 1 (3) Authorize a supporter to share information with
142	142	2 any other supporter, or others named in the agreement.
143	143	3 Section 6. (a) An adult may revoke a supported
144	144	4 decision-making agreement at any time. A revocation under this
145	145	5 section must be in writing, and a copy of the revocation must
146	146	6 be provided to each supporter.
147	147	7 (b) Except as provided in the supported
148	148	8 decision-making agreement, a supported decision-making
149	149	9 agreement terminates in each the following situations:
150	150	10 (1) The adult who is the subject of the supported
151	151	11 decision-making agreement dies.
152	152	12 (2) The adult who is the subject of the supported
153	153	13 decision-making agreement revokes the agreement under
154	154	14 subsection (a) of this section.
155	155	15 (3) All of the named supporters withdraw their
156	156	16 participation, without arranging for successor supporters
157	157	17 approved by the adult.
158	158	18 (4) A court of competent jurisdiction determines
159	159	19 that the adult does not have the capacity to execute or
160	160	20 consent to a supported decision-making agreement.
161	161	21 (5) A court of competent jurisdiction determines
162	162	22 that a supporter has used the supported decision-making
163	163	23 agreement to financially exploit, abuse, or neglect the adult.
164	164	24 (6) A court of competent jurisdiction appoints a
165	165	25 temporary or permanent guardian for the person or property of
166	166	26 the adult, unless the court's order of appointment does each
167	167	27 of the following:
168	168	Page 6 1 a. Expressly modifies, but continues, the supported
169	169	2 decision-making agreement alongside a partial guardianship.
170	170	3 b. Limits the powers and duties of the guardian.
171	171	4 (7) The adult signs a valid durable power of
172	172	5 attorney, except to the extent that the power of attorney
173	173	6 expressly continues, in whole or in part, the supported
174	174	7 decision-making agreement.
175	175	8 (c) The court may enter an order pursuant to
176	176	9 subdivision (b)(4), (b)(5), or (b)(6) of this section only
177	177	10 after providing notice and a hearing to the adult and all
178	178	11 supporters named in the agreement.
179	179	12 Section 7. A supported decision-making agreement
180	180	13 that complies with Section 5 of this act is presumed valid. A
181	181	14 party may rely on the presumption of validity unless the party
182	182	15 has actual knowledge that the supported decision-making
183	183	16 agreement was not validly executed.
184	184	17 Section 8. (a) Except as provided in subsection (c),
185	185	18 a person who in good faith relies on an authorization in a
186	186	19 supported decision-making agreement is not subject to civil or
187	187	20 criminal liability or to discipline for unprofessional
188	188	21 conduct.
189	189	22 (b) Except as provided in subsection (c), a
190	190	23 supporter who performs supported decision-making in good faith
191	191	24 as specified in a supported decision-making agreement is
192	192	25 immune from civil or criminal liability resulting from the
193	193	26 adult's decision.
194	194	Page 7 1 (c) This section does not apply to a person whose
195	195	2 act or omission amounts to fraud, misrepresentation,
196	196	3 recklessness, or willful or wanton misconduct.
197	197	4 Section 9. (a) The meaning and effect of a supported
198	198	5 decision-making agreement is determined by the law of the
199	199	6 jurisdiction in which the supported decision-making agreement
200	200	7 was executed, unless the supported decision-making agreement
201	201	8 provides otherwise.
202	202	9 (b) A person who receives a copy of a supported
203	203	10 decision-making agreement or is aware of the existence of a
204	204	11 supported decision-making agreement and reasonably believes
205	205	12 that an adult is being abused, neglected, or exploited shall
206	206	13 report the alleged abuse, neglect, or exploitation to an adult
207	207	14 protective services agency or an authorized law enforcement
208	208	15 agency.
209	209	16 Section 10. This act shall become effective on the
210	210	17 first day of the third month following its passage and
211	211	18 approval by the Governor, or its otherwise becoming law.
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