Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1485 Compare Versions

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

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2	2	HOUSE DOCKET, NO. 2339 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1485
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Michael J. Finn and Sean Garballey
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to authorizing supported decision-making agreements for certain adults with
13	13	disabilities.
14	14	_______________
15	15	PETITION OF:
16	16	NAME:DISTRICT/ADDRESS :DATE ADDED:Michael J. Finn6th Hampden1/20/2023Sean Garballey23rd Middlesex1/20/2023John Barrett, III1st Berkshire1/24/2023Patricia A. Duffy5th Hampden1/25/2023Tram T. Nguyen18th Essex1/25/2023Josh S. Cutler6th Plymouth1/27/2023Lindsay N. Sabadosa1st Hampshire1/27/2023Christine P. Barber34th Middlesex1/27/2023James K. Hawkins2nd Bristol1/30/2023Kathleen R. LaNatra12th Plymouth2/1/2023Angelo J. Puppolo, Jr.12th Hampden2/1/2023Andres X. Vargas3rd Essex2/3/2023Michael D. BradySecond Plymouth and Norfolk2/3/2023Paul McMurtry11th Norfolk2/9/2023James B. EldridgeMiddlesex and Worcester2/13/2023Paul J. Donato35th Middlesex2/21/2023Jacob R. OliveiraHampden, Hampshire and Worcester2/21/2023 2 of 2
17	17	David Henry Argosky LeBoeuf17th Worcester2/21/2023Kate Lipper-Garabedian32nd Middlesex2/23/2023Simon Cataldo14th Middlesex3/3/2023Lydia EdwardsThird Suffolk3/10/2023Brandy Fluker Oakley12th Suffolk3/13/2023 1 of 9
18	18	HOUSE DOCKET, NO. 2339 FILED ON: 1/20/2023
19	19	HOUSE . . . . . . . . . . . . . . . No. 1485
20	20	By Representatives Finn of West Springfield and Garballey of Arlington, a petition
21	21	(accompanied by bill, House, No. 1485) of Michael J. Finn, Sean Garballey and others relative to
22	22	authorizing supported probate law decision-making agreements for certain adults with
23	23	disabilities. The Judiciary.
24	24	The Commonwealth of Massachusetts
25	25	_______________
26	26	In the One Hundred and Ninety-Third General Court
27	27	(2023-2024)
28	28	_______________
29	29	An Act relative to authorizing supported decision-making agreements for certain adults with
30	30	disabilities.
31	31	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
32	32	of the same, as follows:
33	33	1 SECTION 1. Chapter 190B, as appearing in the 2020 Official Edition, is hereby amended
34	34	2by inserting after section 5-507 the following section:-
35	35	3 Section 5-508. Supported Decision-Making Agreements
36	36	4 (a) As used in this section, the following words shall have the following meanings unless
37	37	5the context clearly requires otherwise:-
38	38	6 "Adult" means an individual 18 years of age or older.
39	39	7 “Coercion” means use of force or threats to persuade someone to do something.
40	40	8 "Decision-maker" means an adult who seeks to execute, or has executed, a supported
41	41	9decision-making agreement with one or more supporters under this chapter.  2 of 9
42	42	10 “Executed” means the date on which a supported decision-making agreement is signed; if
43	43	11the decision-maker and the supporters, sign the supported decision-making agreement on
44	44	12different dates, the supported decision-making agreement shall be considered to be executed on
45	45	13the last date it was signed.
46	46	14 "Supported decision-making" means the process of supporting and accommodating the
47	47	15decision-maker, without impeding the self-determination of the decision-maker, in making life
48	48	16decisions, including, but not limited to, decisions related to where the decision-maker wants to
49	49	17live; the services, supports, financial decisions, and medical care the decision-maker wants to
50	50	18receive; whom the decision-maker wants to live with; or where the decision-maker wants to
51	51	19work.
52	52	20 "Supported decision-making agreement" is an agreement a decision-maker enters into
53	53	21with one or more supporters under this section to use supported decision-making.
54	54	22 "Supporter" means an adult who has entered into a supported decision-making agreement
55	55	23with a decision-maker.
56	56	24 (b) A decision-maker may voluntarily, without undue influence or coercion, enter into a
57	57	25supported decision-making agreement with a supporter or supporters. The decision-maker may
58	58	26change or terminate a supported decision-making agreement at any time, per the procedure(s)
59	59	27outlines in section (e).
60	60	28 (c) Except as limited by a supported decision-making agreement, a supporter may
61	61	29provide to the decision-maker the following decision-making assistance with the decision-
62	62	30maker’s affairs with the consent of the decision-maker: 3 of 9
63	63	31 (1) assisting with making decisions, communicating decisions, and understanding
64	64	32information about, options for, the responsibilities of, and the consequences of decisions;
65	65	33 (2) accessing, obtaining, and understanding information that is relevant to decisions
66	66	34necessary for the decision-maker to manage his or her affairs, including medical, psychological,
67	67	35financial, and educational information; and medical and other records;
68	68	36 (3) ascertaining the wishes and decisions of the decision-maker; assisting in
69	69	37communicating those wishes and decisions to other persons; and assisting to ensure the decision-
70	70	38maker’s wishes and decisions are implemented; and
71	71	39 (4) accompanying the decision-maker and participating in discussions with other persons
72	72	40when the decision-maker is making decisions or attempting to obtain information for decisions.
73	73	41 (d) A supporter may exercise only the authority granted to the supporter in the supported
74	74	42decision-making agreement.
75	75	43 (e) The supported decision-making agreement shall remain in effect until it is revoked,
76	76	44suspended, or terminated in accordance with the provision of this section.
77	77	45 (1) If the agreement sets forth a termination date, the supported decision-making
78	78	46agreement shall not be effective after the termination date.
79	79	47 (2) The decision-maker may revoke a supported decision-making agreement by notifying
80	80	48the supporters in writing or by any other act evidencing a specific intent to revoke the agreement.
81	81	49 (3) Supporter may terminate participation in the agreement by written or oral notice to the
82	82	50decision-maker and the remaining supporters. If the supported decision-making agreement
83	83	51includes more than one supporter, the supported decision-making agreement shall survive for 4 of 9
84	84	52supporters who have not terminated their participation unless it is otherwise terminated or
85	85	53revoked in a manner set forth by this section.
86	86	54 (4) The disabled persons protection commission, an elder protective services agency, the
87	87	55department of developmental services, the department of mental health, or any person may
88	88	56petition the probate and family court to terminate, revoke, or suspend the operation of a
89	89	57supported decision-making agreement on the grounds of abuse, neglect or exploitation by a
90	90	58supporter or supporters. If, after notice to decision-maker and a hearing at which the decision-
91	91	59maker shall have the right to be present and to be heard, the Court finds by a preponderance of
92	92	60the evidence that that the decision-maker has been abused, neglected, or exploited by a supporter
93	93	61or supporters, the court may revoke, terminate, or suspend for a time to be determined by the
94	94	62court, the supported decision-making agreement because of a finding of abuse, neglect, or
95	95	63exploitation. The agreement may survive if one or more supporters who were not found to have
96	96	64abused, neglected, or exploited the adult with a disability continues to be willing to serve as a
97	97	65supporter and the decision-maker agrees. The court may not order a supported decision-making
98	98	66agreement to remain in effect over the objection of the decision-maker. If the decision-maker is
99	99	67indigent, the court shall forthwith appoint counsel for the decision-maker upon the filing of any
100	100	68petition under this paragraph.
101	101	69 (f)(1) A supporter is only authorized to assist the decision-maker in accessing, collecting,
102	102	70or obtaining information that is relevant to a decision authorized under the supported decision-
103	103	71making agreement and to which the decision-maker agrees that the supporter should have access.
104	104	72 (2) If a supporter assists the decision-maker in accessing, collecting, or obtaining
105	105	73personal information, including health information, financial records or information, or 5 of 9
106	106	74educational records, the supporter shall ensure the information is kept privileged and
107	107	75confidential, as applicable, and is subject to neither unauthorized access, nor use, nor disclosure.
108	108	76 (g) The existence of a supported decision-making agreement does not preclude a
109	109	77decision-maker from seeking personal information without the assistance of a supporter.
110	110	78 (h) A supported decision-making agreement must be signed voluntarily, without coercion
111	111	79or undue influence, by the decision-maker and the supporter or supporters in the presence of two
112	112	80or more witnesses who are at least 18 years of age, and unrelated to the decision-maker and who
113	113	81are not supporters of the decision-maker, or a notary public.
114	114	82 (i)(1) A supported decision-making agreement is intended to be personalized by the
115	115	83decision-maker to reflect his or her personal circumstances.
116	116	84 (2) A supported decision-making agreement shall be in writing and shall:
117	117	85 (i) identify the decision-maker and the supporters;
118	118	86 (ii) describe the kinds of decisions with which the decision-maker wants assistance from
119	119	87each respective supporter;
120	120	88 (iii) indicate that the supporters agree to assist the decision-maker to make decisions, to
121	121	89respect the decision-maker's decisions, and, if necessary, to assist the decision-maker to
122	122	90communicate decisions, and, further, agree not to make decisions for the decision-maker;
123	123	91 (iv) indicate that the decision-maker may change, amend, or revoke the supported
124	124	92decision-making agreement at any time for any reason subject to the requirements of section (g)
125	125	93 6 of 9
126	126	94 (v) include a statement that if a mandated reporter under the provisions of chapter 19A
127	127	95section 15(a) or chapter 19C has reasonable cause to believe the decision-maker has been
128	128	96abused, neglected or exploited by a supporter or supporters, the person shall report to, as
129	129	97applicable, the disabled persons protection commission or an elder protective services agency in
130	130	98accordance with the provision of the applicable chapter; and in addition any other person may
131	131	99make such a report to the appropriate agency if any such person has reasonable cause to believe
132	132	100the decision-maker has been abused, neglected or exploited by a supporter or supporters; and the
133	133	101supported decision-making agreement shall include the contact information for the disabled
134	134	102persons protection commission, the elder abuse hot line, and, the human rights officer of any
135	135	103program providing services to the decision-maker;
136	136	104 (vi) be signed with the date of the signature by the decision-maker and the supporters, the
137	137	105decision-maker’s signature to be attested to by a notary public or, in the alternative, by two
138	138	106witnesses who are unrelated to the decision-maker and who are not supporters of the decision-
139	139	107making.
140	140	108 (j)(A) A person who receives the original or a copy of a supported decision-making
141	141	109agreement shall rely on the agreement and recognize a decision or request made or
142	142	110communicated with the decision-making assistance of a supporter under this chapter as the
143	143	111decision or request of the decision-maker.
144	144	112 (B) A person who or entity which, in good faith, acts in reliance on an authorization in a
145	145	113supported decision-making agreement is not subject to civil or criminal liability or to discipline
146	146	114for unprofessional conduct for relying on a decision made in accordance with a supported
147	147	115decision-making agreement. 7 of 9
148	148	116 (k) Execution of a supported decision-making agreement may not be a condition of
149	149	117participation in any activity, service, or program.
150	150	118 (l) If a person who receives a copy of a supported decision-making agreement or is aware
151	151	119of the existence of a supported decision-making agreement has cause to believe that the decision-
152	152	120maker is being abused, neglected, or exploited by the supporter, the person may report the
153	153	121alleged abuse, neglect, or exploitation to the disabled persons protection commission in
154	154	122accordance with chapter 19D or the Elder Abuse Prevention Hotline in accordance with chapter
155	155	12319C.
156	156	124 (m) Nothing in this section shall be interpreted to limit or restrict any individual’s right to
157	157	125execute a health care proxy pursuant to chapter 201D or a power of attorney pursuant to sections
158	158	1265-501 through 5-507 of chapter 190B.
159	159	127 SECTION 2. Chapter 190B of the General Laws is hereby amended in section 5-303, by
160	160	128inserting after paragraph (b)(9) the following paragraph (b)(9½)
161	161	129 The petitioner shall file with the petition a copy of any supported decision-making
162	162	130agreement executed by the person alleged to be incapacitated, if available.
163	163	131 SECTION 3: Chapter 190B of the General Laws is hereby amended in section 5-303
164	164	132(b)(10) by inserting at the end thereof the following:-
165	165	133 whether alternatives to guardianship and available supports and services to prevent the
166	166	134need for guardianship, including a supported decision-making agreement, were considered; and
167	167	135why such alternatives to guardianship and supports and services are not feasible or would not
168	168	136prevent the need for guardianship. 8 of 9
169	169	137 SECTION 4. Chapter 6A of the General Laws is hereby amended by inserting after
170	170	138section 16F the following section:-
171	171	139 Section 16F ½. The executive office of health and human services shall establish a
172	172	140training program on supported decision-making. The training program shall include instruction
173	173	141by state agencies including the department of developmental services, the department of mental
174	174	142health, the executive office of elder affairs and a non-profit corporation or corporations.
175	175	143 The training program on supported decision-making shall be provided to a supporter or a
176	176	144decision-maker receiving decision-making assistance, and shall include the rights and obligations
177	177	145contained in section 5-508 of chapter 190B. The training shall be in any format accessible to the
178	178	146individuals receiving such training. Such training shall include trainers with disabilities and
179	179	147adults who receive or might receive supported decision-making assistance.
180	180	148 SECTION 5. Section 2 of chapter 71B of the General Laws is hereby amended by
181	181	149inserting at the thereof the following:-
182	182	150 The department of elementary and secondary education shall promulgate regulations
183	183	151requiring school districts and charter schools to be part of the transitional planning process to
184	184	152inform students and families of the availability of supported decision-making as an alternative to
185	185	153guardianship in such cases where adult guardianship is being contemplated.
186	186	154 SECTION 6. Section 3 of chapter 71B of the General Laws is hereby amended by
187	187	155inserting the following at the end thereof:-
188	188	156 For any student for whom adult guardianship is being considered at the Individual
189	189	157Educational Program (IEP) team meeting, the IEP team shall inform the student and family (or 9 of 9
190	190	158guardian if there is a guardian of the minor) at the earliest possible meeting of the availability of
191	191	159supported decision-making as an alternative to guardianship. The IEP team shall assist the child
192	192	160and his or her family or minor guardian in locating resources to assist in establishing a supported
193	193	161decision-making plan if the child and family are interested in supported decision-making. If a
194	194	162supported decision-making agreement is executed, the IEP team shall abide by decisions made
195	195	163by the student pursuant to the supported decision-making agreement.
196	196	164 SECTION 7. This act shall take effect six months from the date of the Governor’s
197	197	165signature. A supported decision-making agreement executed before the effective date of the act
198	198	166shall be valid for one year from the effective date of the act. Thereafter, only those supported
199	199	167decision-making agreements which conform to the requirements of the act and which are
200	200	168executed after the effective date of the act shall be valid.