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