HB105INTRODUCED
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T8YH99-1
By Representatives Almond, Faulkner
RFD: Judiciary
First Read: 07-Mar-23
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5 T8YH99-1 03/03/2023 GP (L) ma 2023-691
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SYNOPSIS:
Under existing law, an adult with a disability
may be the subject of a guardianship or
conservatorship.
Also under existing law, an adult with a
guardianship or conservatorship may not make certain
major decisions for himself or herself. The guardian or
conservator generally holds the decision-making
authority.
This bill would provide that, in lieu of a
guardianship or conservatorship, an adult may enter
into a supported decision-making agreement with
supporters who may assist and advise the adult with
making certain decisions without impeding the adult's
self-determination.
This bill would also provide for the procedures
and limitations related to a supported decision-making
agreement.
A BILL
TO BE ENTITLED
AN ACT
Relating to guardianships and conservatorships; to
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create the Colby Act; to provide for a supported
decision-making agreement as an alternative to a guardianship
or conservatorship; and to provide the scope and limitations
of a supported decision-making agreement.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. This act shall be known and may be cited as
the Colby Act.
Section 2. For the purposes of this act, the following
terms have the following meanings:
(1) SUPPORTED DECISION-MAKING. The process of
supporting and accommodating an adult in the decision-making
process without impeding the self-determination of the adult.
This term includes assistance in making, communicating, and
effectuating life decisions.
(2) SUPPORTED DECISION-MAKING AGREEMENT. A written
agreement detailing decision-making supports and
accommodations that an adult chooses to receive from one or
more supporters.
(3) SUPPORTER. An individual at least 18 years of age
who has voluntarily entered into a supported decision-making
agreement with an adult and is designated as such in a
supported decision-making agreement.
Section 3. (a) An adult may not enter into a supported
decision-making agreement as an alternative to guardianship or
conservatorship unless the adult meets both of the following
conditions:
(1) The adult enters into the agreement voluntarily and
without coercion or undue influence.
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(2) The adult understands the nature and effect of the
agreement.
(b) An adult may make, change, or revoke a supported
decision-making agreement.
(c) A court may not consider an adult's execution of a
supported decision-making agreement as evidence of the adult's
incapacity. The existence of an executed supported
decision-making agreement does not preclude the adult from
acting independently of the supported decision-making
agreement.
(d) An adult may not enter into a supported
decision-making agreement under this section if the agreement
supplants the authority of a guardian or conservator of the
adult.
Section 4. (a) A supporter shall do all of the
following:
(1) Support the will and preference of the adult and
not the supporter's opinion of the adult's best interest.
(2) Act honestly, diligently, and in good faith.
(3) Act within the scope set forth in the adult's
supported decision-making agreement.
(4) Avoid conflicts of interest.
(5) Timely notify the adult in writing, in the adult's
preferred language and mode of communication, of his or her
intent to resign as a supporter.
(b) A supporter is a fiduciary and shall make and
communicate decisions in cooperation with the adult and
preserve the adult's authority to make decisions.
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(c) A supporter shall not do any of the following:
(1) Exert undue influence upon the adult.
(2) Receive a fee or compensation for services
performed in the role of supporter.
(3) Obtain, without the consent of the adult,
information for a purpose other than assisting the adult in
making a specific decision authorized by the supported
decision-making agreement.
(4) Obtain, without the consent of the adult, nonpublic
personal information, as defined by 15 U.S.C. ยง 6809(4).
(5) Act outside the scope of authority provided in the
supported decision-making agreement.
(d) A supporter who is expressly given relevant
authority in a power of attorney may act within the scope of
that authority to sign instructions or other documents on
behalf of the adult, or to communicate or implement decisions
made by the adult.
(e) A request or decision made or communicated with the
assistance of a supporter in conformity with the supported
decision-making agreement shall be recognized as the request
or decision of the adult for the purposes of any provision of
law.
Section 5. (a) A supported decision-making agreement
shall meet all of the following requirements:
(1) Name at least one supporter.
(2) Describe the decision-making assistance that each
supporter may provide to the adult and how supporters may work
together.
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(3) If the adult is subject to a limited guardianship
or conservatorship as provided by Section 6, be executed by
the adult's guardian or conservator.
(4) Be in writing, dated, and signed by the adult in
the presence of a notary public.
(5) Contain a separate consent signed by each supporter
named in the agreement indicating each of the following:
a. The supporter's relationship to the adult.
b. The supporter's willingness to act as a supporter.
c. The supporter's acknowledgment of his or her duties
as a supporter.
(b) A supported decision-making agreement may do any of
the following:
(1) Appoint more than one supporter.
(2) Appoint an alternate supporter to act in the place
of a supporter under circumstances specified in the agreement.
(3) Authorize a supporter to share information with any
other supporter or others named in the agreement.
Section 6. (a) An adult may revoke a supported
decision-making agreement at any time. A revocation under this
section shall be in writing, and a copy of the revocation
shall be provided to each supporter.
(b) Except as provided in the supported decision-making
agreement, a supported decision-making agreement terminates in
each the following situations:
(1) The adult who is the subject of the supported
decision-making agreement dies.
(2) The adult who is the subject of the supported
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decision-making agreement revokes the agreement under
subsection (a).
(3) All of the named supporters withdraw their
participation without arranging for successor supporters
approved by the adult.
(4) A court of competent jurisdiction determines that
the adult does not have the capacity to execute or consent to
a supported decision-making agreement.
(5) A court of competent jurisdiction determines that a
supporter has used the supported decision-making agreement to
financially exploit, abuse, or neglect the adult.
(6) A court of competent jurisdiction appoints a
temporary or permanent guardian or conservator for the person
or property of the adult, unless the court's order of
appointment does each of the following:
a. Expressly modifies, but continues, the supported
decision-making agreement alongside a partial guardianship or
conservatorship.
b. Limits the powers and duties of the guardian or
conservator.
(7) The adult signs a valid durable power of attorney,
except to the extent that the power of attorney expressly
continues, in whole or in part, the supported decision-making
agreement.
(c) The court may enter an order pursuant to
subdivision (b)(4), (b)(5), or (b)(6) only after providing
notice and a hearing to the adult and all supporters named in
the agreement.
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Section 7. A supported decision-making agreement that
complies with Section 5 is presumed valid. A party may rely on
the presumption of validity unless the party has actual
knowledge that the supported decision-making agreement was not
validly executed.
Section 8. (a) A person who in good faith relies on an
authorization in a supported decision-making agreement is not
subject to discipline for unprofessional conduct.
(b) This section does not apply to a person whose act
or omission amounts to fraud, misrepresentation, recklessness,
or willful or wanton misconduct.
Section 9. (a) The meaning and effect of a supported
decision-making agreement is determined by the law of the
jurisdiction in which the supported decision-making agreement
was executed, unless the supported decision-making agreement
provides otherwise.
(b) A person who receives a copy of a supported
decision-making agreement or is aware of the existence of a
supported decision-making agreement and reasonably believes
that an adult is being abused, neglected, or exploited shall
report the alleged abuse, neglect, or exploitation to an adult
protective services agency or an authorized law enforcement
agency.
Section 10. This act shall become effective on the
first day of the third month following its passage and
approval by the Governor, or its otherwise becoming law.
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