Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S109 Compare Versions

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

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 1172 FILED ON: 1/19/2023
3	3	SENATE . . . . . . . . . . . . . . No. 109
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Joan B. Lovely
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 supported decision-making agreements for certain adults with disabilities.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Joan B. LovelySecond EssexSean Garballey23rd Middlesex1/26/2023Angelo J. Puppolo, Jr.12th Hampden2/8/2023John F. KeenanNorfolk and Plymouth2/8/2023Michael O. MooreSecond Worcester2/8/2023Michael D. BradySecond Plymouth and Norfolk2/8/2023Michael J. BarrettThird Middlesex2/8/2023John C. VelisHampden and Hampshire2/8/2023Jacob R. OliveiraHampden, Hampshire and Worcester2/21/2023James B. EldridgeMiddlesex and Worcester2/21/2023 1 of 8
16	16	SENATE DOCKET, NO. 1172 FILED ON: 1/19/2023
17	17	SENATE . . . . . . . . . . . . . . No. 109
18	18	By Ms. Lovely, a petition (accompanied by bill, Senate, No. 109) of Joan B. Lovely, Sean
19	19	Garballey, Angelo J. Puppolo, Jr., John F. Keenan and other members of the General Court for
20	20	legislation relative to supported decision-making agreements for certain adults with disabilities.
21	21	Children, Families and Persons with Disabilities.
22	22	[SIMILAR MATTER FILED IN PREVIOUS SESSION
23	23	SEE SENATE, NO. 3132 OF 2021-2022.]
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 supported decision-making agreements for certain adults with disabilities.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 SECTION 1. Chapter 6A of the General Laws is hereby amended by inserting after
33	33	2section 16F the following section:-
34	34	3 Section 16F½. The executive office of health and human services shall establish a
35	35	4training program on supported decision-making. The training program shall include instruction
36	36	5by state agencies including, but not limited to, the department of developmental services, the
37	37	6department of mental health and the executive office of elder affairs. The training program shall
38	38	7be provided to any supporter or decision-maker pursuant to section 5-601 of chapter 190B and
39	39	8shall include instruction on the rights and obligations contained in section 5-602 of chapter
40	40	9190B. The executive office of health and human services shall consult with adults who receive 2 of 8
41	41	10supported decision-making assistance and supporters who assist in decision-making pursuant to a
42	42	11supported-decision making agreement in the development of the training. The training shall be in
43	43	12a format accessible to the individuals receiving the training.
44	44	13 SECTION 2. Section 2 of chapter 71B of the General Laws, as appearing in the 2020
45	45	14Official Edition, is hereby amended by adding the following paragraph:-
46	46	15 The department of elementary and secondary education shall promulgate regulations
47	47	16requiring school districts, as part of their transitional planning process for students with
48	48	17disabilities, to inform students and their families of the availability of supported decision-making
49	49	18as an alternative to guardianship in cases where adult guardianship is being contemplated.
50	50	19 SECTION 3. Section 3 of said chapter 71B of the General Laws, as so appearing, is
51	51	20hereby amended by adding the following paragraph:-
52	52	21 For any student for whom adult guardianship is being considered at the IEP team
53	53	22meeting, the IEP team shall inform the student and their family or guardian, at the earliest
54	54	23possible meeting, of the availability of supported decision-making agreements as an alternative
55	55	24to guardianship. The IEP team shall assist the child and their family or guardian in locating
56	56	25resources to assist in establishing a supported decision-making plan if the child and their family
57	57	26or guardian are interested in supported decision-making.
58	58	27 SECTION 4. Section 5-303 of said chapter 190B, as appearing in the 2020 Official
59	59	28Edition, is hereby amended by inserting, after the word “requested”, in line 49, the following
60	60	29words:- 3 of 8
61	61	30 “whether alternatives to guardianship and available supports and services to prevent the
62	62	31need for guardianship, including a supported decision-making agreement, were considered, why
63	63	32such alternatives to guardianship and supports and services are not feasible or would not prevent
64	64	33the need for guardianship,”.
65	65	34 SECTION 5. Subsection (b) of section 5-303 of said chapter 190B, as so appearing, is
66	66	35hereby amended, by inserting after paragraph (9) the following paragraph:-
67	67	36 (9½) a copy of any supported decision-making agreement executed by the person alleged
68	68	37to be incapacitated, if available;.
69	69	38 SECTION 6. Chapter 190B of the General Laws is hereby amended by inserting after
70	70	39section 5-507 the following 2 sections:-
71	71	40 Section 5-601. As used in this section, the following words shall have the following
72	72	41meaning unless the context clearly requires otherwise:
73	73	42 “Adult”, an individual 18 years of age or older.
74	74	43 “Coercion”, the use of force or threats to persuade someone to do something.
75	75	44 “Decision-maker”, an adult who seeks to execute, or has executed, a supported decision-
76	76	45making agreement with 1 or more supporters under this chapter.
77	77	46 “Executed”, a supported decision-making agreement that is signed by both the decision
78	78	47maker and all supporters in accordance with requirements set forth in this chapter.
79	79	48 “Supported decision-making”, the process of supporting and accommodating the
80	80	49decision-maker, without impeding the self-determination of the decision-maker, in making life 4 of 8
81	81	50decisions, including, but not limited to: (i) decisions related to where the decision-maker wants
82	82	51to live; (ii) the services, supports, financial decisions and medical care the decision-maker wants
83	83	52to receive; (iii) whom the decision-maker wants to live with; and (iv) where the decision-maker
84	84	53wants to work.
85	85	54 “Supported decision-making agreement”, an agreement a decision-maker enters into 1
86	86	55supporter pursuant to section 5-602 to use supported decision-making.
87	87	56 “Supporter”, an adult who has executed a supported decision-making agreement with a
88	88	57decision-maker.
89	89	58 Section 5-602. (a) A decision-maker may voluntarily enter into a supported decision-
90	90	59making agreement with 1 or more supporters. The decision-maker may amend or terminate a
91	91	60supported decision-making agreement at any time pursuant to section (e).
92	92	61 (b)(1) Except as limited by a supported decision-making agreement, a supporter may,
93	93	62with the consent of the decision-maker, provide to the decision-maker with decision-making
94	94	63assistance regarding the decision-maker’s affairs, including, but not limited to: (i) assisting with
95	95	64making decisions, communicating decisions and understanding information about, options for,
96	96	65the responsibilities of and the consequences of decisions; (ii) accessing, obtaining and
97	97	66understanding information that is relevant to decisions, necessary for the decision-maker to
98	98	67manage their affairs, including, but not limited to, medical, psychological, financial and
99	99	68educational information and medical and other records; (iii) ascertaining the wishes and
100	100	69decisions of the decision-maker, assisting in communicating those wishes and decisions to other
101	101	70persons and assisting to ensure the decision-maker’s wishes and decisions are implemented; and
102	102	71(iv) accompanying the decision-maker and participating in discussions with other persons when 5 of 8
103	103	72the decision-maker is making decisions or attempting to obtain information needed to make
104	104	73decisions.
105	105	74 (2) A supporter shall only be authorized to assist the decision-maker in accessing,
106	106	75collecting or obtaining information that is relevant to a decision authorized under the supported
107	107	76decision-making agreement and to which the decision-maker agrees that the supporter should
108	108	77have access. A supporter shall keep confidential any information obtained in the process of
109	109	78assisting the decision-maker and may exercise only the authority granted to the supporter in the
110	110	79supported decision-making agreement.
111	111	80 (3) The existence of a supported decision-making agreement shall not preclude a
112	112	81decision-maker from seeking personal information without the assistance of a supporter.
113	113	82 (c)(1) To be valid, a supported decision-making agreement shall be signed and dated by
114	114	83the decision-maker and each applicable supporter in the presence of a notary public or not less
115	115	84than 2 witnesses who are: (i) not less than 18 years of age; (ii) unrelated to the decision-maker
116	116	85and any supporter; and (iii) not supporters to the agreement.
117	117	86 Evidence of undue influence or coercion in the creation or signing of a supported
118	118	87decision-making agreement shall render the supported decision-making agreement invalid.
119	119	88 (2) A supported decision-making agreement shall be personalized by the decision-maker
120	120	89to reflect the decision-maker’s personal circumstances. A supported decision-making agreement
121	121	90shall: (i) be in writing; (ii) identify the decision-maker and all supporters; (iii) describe the types
122	122	91of decisions with which each supporter shall assist the decision-maker; (iv) indicate that all
123	123	92supporters agree to assist the decision-maker in making such decisions, to respect the decision-
124	124	93maker's decisions and to assist the decision-maker in communicating such decisions; (v) state 6 of 8
125	125	94that supporters shall not make decisions for the decision-maker; (vi) indicate that the decision-
126	126	95maker may amend or terminate the supported decision-making agreement at any time and for any
127	127	96reason subject to the requirements of subsection (e); and (vii) list contact information for the
128	128	97disabled persons protection commission, the elder abuse hotline and all programs providing
129	129	98services to the decision-maker.
130	130	99 (d) A person who receives the original or a copy of a supported decision-making
131	131	100agreement shall rely on the agreement and recognize a decision, request or communication made
132	132	101with the decision-making assistance of a supporter as the decision, request or communication of
133	133	102the decision-maker. A person or entity that, in good faith, acts in reliance on a decision made
134	134	103pursuant to a supported decision-making agreement shall not be subject to civil or criminal
135	135	104liability or to professional discipline.
136	136	105 (e)(1) The supported decision-making agreement shall remain in effect until it is
137	137	106terminated. A supportive decision-making agreement shall be terminated on any termination date
138	138	107set forth in the agreement. A supporter may terminate participation in a supported decision-
139	139	108making agreement at any time, by written notice to the decision-maker and any other supporters
140	140	109to the agreement; provided, however, that if the agreement has more than 1 supporter, the
141	141	110agreement shall remain valid as to all other supporters. A decision-maker may terminate a
142	142	111supported decision-making agreement at any time by written notice to all supporters to the
143	143	112agreement.
144	144	113 (2) The disabled persons protection commission, an elder protective services agency, the
145	145	114department of developmental services, the department of mental health or any person interested
146	146	115in the decision-maker's welfare may petition the probate and family court to revoke or suspend a 7 of 8
147	147	116supported decision-making agreement on the grounds of abuse, neglect or exploitation by 1 or
148	148	117more supporters. The court shall provide notice to the decision-maker and provide an opportunity
149	149	118for the decision-maker and supporter to be heard. The court may revoke or suspend the supported
150	150	119decision-making agreement, in whole or in part, if the court makes a finding of abuse, neglect or
151	151	120exploitation by the supporter. The court shall not order a supported decision-making agreement
152	152	121to remain in effect over the objection of the decision-maker. If the decision-maker is indigent,
153	153	122the court shall appoint counsel for the decision-maker upon the filing of any petition under this
154	154	123paragraph.
155	155	124 (f) If a person who receives a copy of a supported decision-making agreement or is aware
156	156	125of the existence of a supported decision-making agreement has cause to believe that the decision-
157	157	126maker is being abused, neglected or exploited by a supporter, the person may report the alleged
158	158	127abuse, neglect or exploitation to the disabled persons protection commission pursuant to chapter
159	159	12819C or the elder abuse prevention hotline pursuant to chapter 19A.
160	160	129 If a mandated reporter pursuant to subsection (a) of section 15 of said chapter 19A or said
161	161	130chapter 19C has reasonable cause to believe that the decision-maker has been abused, neglected
162	162	131or exploited by a supporter, the mandated reporter shall make a report to the disabled persons
163	163	132protection commission or an elder protective services agency, as applicable.
164	164	133 (g) Execution of a supported decision-making agreement shall not be a condition of
165	165	134participation in any activity, service or program.
166	166	135 (h) Nothing in this section shall be interpreted to limit or restrict the right of an individual
167	167	136to execute a health care proxy pursuant to chapter 201D or a power of attorney pursuant to this
168	168	137chapter. 8 of 8
169	169	138 SECTION 7. A supported decision-making agreement executed before January 1, 2024
170	170	139shall be valid until January 1, 2025. Thereafter, only supported decision-making agreements that
171	171	140conform to the requirements of section 5-602 of chapter 190B of the General Laws shall be
172	172	141valid.
173	173	142 SECTION 8. Section 6 shall take effect on January 1, 2024.
174	174	143 SECTION 9. The training program required by section 16F½ of chapter 6A of the
175	175	144General Laws shall be implemented by the department of health and human services not later
176	176	145than July 1, 2024.
177	177	146 SECTION 10. The department of elementary and secondary education shall promulgate
178	178	147regulations pursuant to section 2 of chapter 71B of the General Laws not later than July 1, 2024.