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