EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
*hb0529*
HOUSE BILL 529
N2 2lr1522
CF 2lr1148
By: Delegates Pena–Melnyk, Bagnall, Carey, Love, Saab, Shetty, Terrasa, and
Valentino–Smith
Introduced and read first time: January 21, 2022
Assigned to: Judiciary
A BILL ENTITLED
AN ACT concerning 1
Estates and Trusts – Supported Decision Making 2
FOR the purpose of authorizing the use of supported decision making to assist an adult 3
through the provision of support for the adult in making, communicating, or 4
effectuating decisions and preventing the need for the appointment of certain 5
substitute decision makers for the adult; authorizing an adult to enter into a 6
supported decision–making agreement with one or more supporters under certain 7
circumstances; providing immunity from civil or criminal liability under certain 8
circumstances; and generally relating to supported decision making for adults. 9
BY adding to 10
Article – Estates and Trusts 11
Section 18–101 through 18–109 to be under the new title “Title 18. Supported 12
Decision Making” 13
Annotated Code of Maryland 14
(2017 Replacement Volume and 2021 Supplement) 15
BY repealing and reenacting, without amendments, 16
Article – Health – General 17
Section 5–601(a) 18
Annotated Code of Maryland 19
(2019 Replacement Volume and 2021 Supplement) 20
BY repealing and reenacting, with amendments, 21
Article – Health – General 22
Section 5–601(o) 23
Annotated Code of Maryland 24
(2019 Replacement Volume and 2021 Supplement) 25
SECTION 1. BE IT ENACTED B Y THE GENERAL ASSEMBLY OF MARYLAND, 26 2 HOUSE BILL 529
That the Laws of Maryland read as follows: 1
Article – Estates and Trusts 2
TITLE 18. SUPPORTED DECISION MAKING. 3
18–101. 4
(A) IN THIS TITLE THE FOL LOWING WORDS HAVE TH E MEANINGS 5
INDICATED. 6
(B) “SUPPORTED DECISION MAKING” MEANS A PROCESS BY W HICH AN 7
ADULT, WITH OR WITHOUT HAVI NG ENTERED A SUPPORT ED DECISION–MAKING 8
AGREEMENT , UTILIZES SUPPORT FRO M A SERIES OF RELATI ONSHIPS IN ORDER TO 9
MAKE, COMMUNICATE , OR EFFECTUATE THE AD ULT’S OWN LIFE DECISIONS . 10
(C) “SUPPORTED D ECISION–MAKING AGREEMENT ” MEANS AN 11
ARRANGEMENT BETWEEN AN ADULT AND A SUPPO RTER OR SUPPORTERS T HAT 12
DESCRIBES: 13
(1) HOW THE ADULT USES SU PPORTED DECISION MAK ING TO MAKE 14
DECISIONS; 15
(2) THE RIGHTS OF THE ADU LT; AND 16
(3) THE RESPONSIBILITIES OF THE SUPPORTER OR SUPPORTERS . 17
(D) “SUPPORTER” MEANS AN INDIVIDUAL SELECTED BY AN ADULT TO 18
PROVIDE SUPPORT IN M AKING, COMMUNICATING , OR EFFECTUATING THE ADULT’S 19
OWN LIFE DECISIONS . 20
18–102. 21
(A) THE PURPOSE OF THIS T ITLE IS TO ASSIST ADULTS BY: 22
(1) OBTAINING SUPPORT FOR THE ADUL T IN MAKING , 23
COMMUNICATING , OR EFFECTUATING DECI SIONS THAT CORRESPON D TO THE WILL, 24
PREFERENCES , AND CHOICES OF THE A DULT; AND 25
(2) PREVENTING THE NEED F OR THE APPOINTMENT O F A 26
SUBSTITUTE DECISION MAKER FOR THE ADULT , INCLUDING A GUARD IAN OF THE 27
PERSON OR PROPERTY . 28
(B) THIS TITLE SHALL BE L IBERALLY CONSTRUED A ND APPLIED TO 29 HOUSE BILL 529 3
PROMOTE ITS UNDERLYI NG PURPOSES AND POLI CIES. 1
18–103. 2
(A) AN ADULT MAY UTILIZE SUPPORTED DECISION M AKING TO: 3
(1) INCREASE THE ADULT ’S SELF–DETERMINATION ; 4
(2) PREVENT THE NEED FOR THE APPOINTMENT OF A SUBSTITUTE 5
DECISION MAKER ; OR 6
(3) LIMIT OR TERMINATE TH E USE OF A SUBSTITUT E 7
DECISION MAKER . 8
(B) ALL ADULTS ARE PRESUM ED CAPABLE OF MAKING A SUPPORTED 9
DECISION–MAKING AGREEMENT . 10
(C) THE MANNER IN WHICH AN ADULT COMMUNICATE S WITH OTHERS IS 11
NOT GROUNDS FOR DETE RMINING THAT THE ADU LT IS INCAPABLE OF M AKING, 12
CHANGING, OR REVOKING A SUPPOR TED DECISION–MAKING AGREEMENT . 13
(D) EXECUTION OF A SUPPOR TED DECISION–MAKING AGREEMENT BY AN 14
ADULT MAY NOT : 15
(1) BE USED AS EVIDENCE OF INC APACITY; OR 16
(2) PRECLUDE THE ABILITY OF THE ADULT TO : 17
(I) ACT INDEPENDENTLY OF A SUPPORTED DECISION –MAKING 18
AGREEMENT ; OR 19
(II) ACCESS THE ADULT ’S PERSONAL INFORMATI ON WITHOUT A 20
SUPPORTER. 21
18–104. 22
(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, AN ADULT 23
MAY VOLUNTARILY , WITHOUT UNDUE INFLUE NCE OR COERCION , ENTER INTO A 24
SUPPORTED DECISION –MAKING AGREEMENT WIT H A SUPPORTER OR SUP PORTERS. 25
(B) (1) IF A PERSON UNDER GUA RDIANSHIP ENTERS INT O A SUPPORTED 26
DECISION–MAKING AGREEMENT UNDER THIS TITLE, THE AGREEMENT DOES N OT 27
SUPPLANT THE AUTHORI TY OF A GUARDIAN OF THE ADULT, UNLESS THE COURT 28 4 HOUSE BILL 529
AUTHORIZES THE LIMIT ATION OR REMOVAL OF GUARDIANSHIP DUE TO THE 1
EXISTENCE OF A SUPPO RTED DECISION –MAKING AGREEMENT . 2
(2) A GUARDIAN MAY NOT PREVENT AN A DULT FROM ENTERING I NTO 3
A VALID SUPPORTED DE CISION–MAKING AGREEMENT THA T DOES NOT SUPPLANT 4
THE AUTHORITY OF THE GUARDIAN WITHOUT GOO D CAUSE. 5
(C) IF AN ADULT VOLUNTARI LY ENTERS INTO A SUP PORTED 6
DECISION–MAKING AGREEMENT WIT H ONE OR MO RE SUPPORTERS , THE ADULT MAY 7
AUTHORIZE A SUPPORTE R TO PROVIDE SUPPORT TO THE ADULT IN MAKI NG 8
DECISIONS IN AREAS O F THE ADULT’S CHOOSING, INCLUDING: 9
(1) GATHERING INFORMATION ; 10
(2) UNDERSTANDING AND INT ERPRETING INFORMATIO N; 11
(3) WEIGHING OPTIONS AN D ALTERNATIVES TO A DECISION; 12
(4) UNDERSTANDING THE CON SEQUENCES OF MAKING OR NOT 13
MAKING A DECISION ; 14
(5) PARTICIPATING IN CONV ERSATIONS WITH THIRD PARTIES WITH 15
THE ADULT’S EXPLICIT AUTHORIZA TION; AND 16
(6) PROVIDING THE ADULT W ITH SUPPORT IN IMPLE MENTING A 17
DECISION. 18
(D) NOTHING IN THIS TITLE OR THE EXISTENCE OF A SUPPORTED 19
DECISION–MAKING AGREEMENT MAY PRECLUDE THE ADULT F ROM ACTING 20
INDEPENDENTLY OF A S UPPORTED DECISION –MAKING AGREEMENT . 21
(E) THE AVAILABILITY OF A SUPPORTED DECISION –MAKING AGREEME NT IS 22
NOT INTENDED TO LIMI T THE INFORMAL USE O F SUPPORTED DECISION MAKING OR 23
TO PRECLUDE JUDICIAL CONSIDERATION OF INF ORMAL SUPPORTED 24
DECISION–MAKING ARRANGEMENTS AS A LESS RESTRICTIV E ALTERNATIVE TO 25
GUARDIANSHIP . 26
(F) EXECUTION OF A SUPPOR TED DECISION–MAKING AGREEMENT MAY NOT 27
BE A CONDITION OF PA RTICIPATING IN ANY A CTIVITY, SERVICE, OR PROGRAM . 28
18–105. 29
(A) A SUPPORTER SHALL : 30 HOUSE BILL 529 5
(1) SUPPORT THE WILL AND PREFERENCE OF THE AD ULT AND NOT 1
THE SUPPORTER ’S OPINION OF THE REA SONABLENESS OF THE A DULT’S WISHES, 2
PREFERENCES , OR CHOICES; 3
(2) ACT HONESTLY, DILIGENTLY, AND IN GOOD FAITH ; 4
(3) ACT WITHIN THE AUTHOR ITY GIVEN IN THE SUP PORTED 5
DECISION–MAKING AGREEMENT ; 6
(4) AVOID CONFLICTS OF IN TEREST; 7
(5) MAINTAIN RECORDS , WHICH THE SUPPORTER SHALL MA KE 8
AVAILABLE TO THE ADU LT ON REQUEST , CONCERNING : 9
(I) THE SUPPORTER ’S ACTIONS UNDER THE SUPPORTED 10
DECISION–MAKING AGREEMENT ; AND 11
(II) HOW THE ADULT COMMUNI CATES AND EXPRESSES 12
OPINIONS TO THE SUPP ORTER; AND 13
(6) KEEP ANY RECORDS AND INFORMATION OB TAINED UNDER A 14
SUPPORTED DECISION –MAKING AGREEMENT : 15
(I) SUBJECT TO THE LIMITA TIONS UNDER TITLE 9, SUBTITLE 1 16
OF THE COURTS ARTICLE, CONFIDENTIAL AND PRI VILEGED; AND 17
(II) SECURE FROM UNAUTHORI ZED ACCESS , USE, OR 18
DISCLOSURE. 19
(B) THE RELATIONSHIP BE TWEEN THE ADULT AND THE SUPPORTER SHALL 20
BE ONE OF TRUST AND CONFIDENCE THAT PRES ERVES THE DECISION –MAKING 21
AUTHORITY OF THE ADU LT. 22
(C) A SUPPORTER MAY NOT : 23
(1) MAKE DECISIONS ON BEH ALF OF THE ADULT ; 24
(2) EXERT UNDUE INFLUENCE ON THE ADULT; 25
(3) COERCE THE ADULT ; 26
(4) OBTAIN INFORMATION AB OUT THE ADULT WITHOU T THE ADULT’S 27 6 HOUSE BILL 529
CONSENT; 1
(5) ENFORCE DECISIONS MAD E BY THE ADULT WITHO UT THE ADULT 2
BEING PRESENT , UNLESS THE ADULT EXP LICITLY AUTHORIZES T HE SUPPORTER TO 3
ENFORCE THE DECISION ; OR 4
(6) ACT OUTSIDE OF THE AUTHO RITY GRANTED IN THE SUPPORTED 5
DECISION–MAKING AGREEMENT . 6
18–106. 7
(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION , A 8
SUPPORTER MAY BE ANY PERSON CHOSEN BY THE ADULT. 9
(B) THE FOLLOWING INDIVID UALS ARE DISQUALIFIE D FROM ACTI NG AS A 10
SUPPORTER: 11
(1) A MINOR; 12
(2) AN INDIVIDUAL AGAINST WHOM THE ADULT HAS O BTAINED A 13
PEACE ORDER ; AND 14
(3) AN INDIVIDUAL WHO HAS BEEN CONVICTED OF FI NANCIAL 15
EXPLOITATION UNDER TITLE 13, SUBTITLE 6 OF THIS ARTICLE; OR 16
(4) AN INDIVIDUAL WHO I S THE SUBJECT OF A C IVIL OR CRIMINAL 17
ORDER PROHIBITING CO NTACT WITH THE ADULT . 18
(C) A SUPPORTER MAY RESIGN AS A SUPPORTER BY WR ITTEN OR ORAL 19
NOTICE TO THE ADULT , ANY REMAINING SUPPOR TERS OF THE ADULT NA MED IN THE 20
AGREEMENT , AND ANY THIRD PARTIE S WHO HAVE THE AGREEMENT ON FIL E. 21
(D) IF A SUPPORTER RESIGN S, DIES, BECOMES INCAPABLE , OR BECOMES 22
FOR ANY OTHER REASON UNABLE TO ACT AS A S UPPORTER AND THERE I S NO 23
ALTERNATE SUPPORTER , THE AUTHORITY GIVEN TO THE SUPPORTER IS 24
SUSPENDED. 25
18–107. 26
(A) A SUPPORTED DECISION –MAKING AGREEMENT MAY BE IN ANY FORM 27
CONSISTENT WITH THE REQUIREMENTS UNDER T HIS SECTION. 28
(B) A SUPPORTED DECISION –MAKING AGREEMENT SHA LL: 29 HOUSE BILL 529 7
(1) BE DOCUMENTED ; 1
(2) BE DATED; 2
(3) NAME AT LEAST ONE SUP PORTER; 3
(4) DESCRIBE TH E DECISION–MAKING ASSISTANCE TH AT EACH 4
SUPPORTER MAY PROVID E THE ADULT; 5
(5) DESCRIBE HOW THE SUPP ORTERS MAY WORK TOGE THER IF 6
THERE IS MORE THAN O NE SUPPORTER ; 7
(6) DESCRIBE HOW ANY PERC EIVED OR ACTUAL CONF LICT OF 8
INTEREST BETWEEN THE SUPPORTER OR SUPP ORTERS AND THE ADULT SHALL BE 9
MITIGATED; 10
(7) DOCUMENT HOW THE ADUL T SELECTED THE SUPPO RTER OR 11
SUPPORTERS ; 12
(8) BE APPROVED BY THE CO URT IF THE ADULT HAS BEEN 13
APPOINTED A GUARDIAN OF THE PERSON OR PRO PERTY AND THE SUPPOR TED 14
DECISION–MAKING AGREEMENT AF FECTS THE AUTHORITY OF THE GUARDIAN ; 15
(9) CONTAIN AN ATTESTATIO N THAT THE SUPPORTER OR 16
SUPPORTERS AGREE TO HONOR THE RIGHT OF T HE ADULT TO MAKE DEC ISIONS AND 17
THAT THE SUPPORTER O R SUPPORTERS WILL NO T MAKE DECISIONS FOR THE 18
ADULT; AND 19
(10) BE WITNESSED BY TWO ADULTS WHO ARE NOT: 20
(I) A SUPPORTER FOR THE AD ULT; OR 21
(II) AN EMPLOYEE OR AGENT OF A SUPPORTER NAMED IN THE 22
SUPPORTED DECISION –MAKING AGREEMENT . 23
(B) A SUPPORTED DECISION –MAKING AGREEMENT MAY : 24
(1) APPOINT MORE THAN ONE SUPPORTER; AND 25
(2) APPOINT AN ALTERNATE TO ACT IN THE PLACE OF A SUPPORTER 26
IN CIRCUMSTANCES SPE CIFIED IN THE AGREEM ENT. 27
8 HOUSE BILL 529
18–108. 1
AN ADULT UTILIZING A SUPPORTED DECISION –MAKING AGREEMENT MAY : 2
(1) REVOKE THE SUPPORTED DECISION–MAKING AGREEMENT AT 3
ANY TIME ORALLY , IN WRITING, OR OTHERWISE BY EXPR ESSING THE ADULT ’S 4
SPECIFIC INTENT TO R EVOKE THE AGREEMENT ; AND 5
(2) RECEIVE ANY SUPPORT N EEDED FROM AN INDIVI DUAL OF THE 6
ADULT’S CHOOSING TO REVOKE THE AGREEMENT . 7
18–109. 8
(A) A THIRD PARTY WHO IN G OOD FAITH ACTS I N RELIANCE ON THE 9
DECISIONS MADE BY AN ADULT UTILIZING A SU PPORTED DECISION –MAKING 10
AGREEMENT OR WHO IN GOOD FAITH DECLINES TO HONOR A SUPPORTED 11
DECISION–MAKING AGREEMENT IS NOT SUBJECT TO CIVIL OR CRIMINAL LIABILIT Y 12
OR DISCIPLINE FOR UN PROFESSIONAL CONDUC T FOR: 13
(1) COMPLYING WITH AN ADU LT’S DECISION IN ACCORD ANCE WITH A 14
SUPPORTED DECISION –MAKING AGREEMENT BAS ED ON AN ASSUMPTION THAT THE 15
SUPPORTED DECISION –MAKING AGREEMENT WAS VALID WHEN MADE AND NOT 16
REVOKED OR ABROGATED ; OR 17
(2) DECLINING TO COMPLY WITH A SUPPORTED DEC ISION–MAKING 18
AGREEMENT BASED ON A CTUAL KNOWLEDGE THAT : 19
(I) THE AGREEMENT WAS INV ALID, REVOKED, OR ABROGATED ; 20
OR 21
(II) A SUPPORTER WAS COERCI NG OR UNDULY INFLUEN CING 22
THE ADULT OR OTHERWI SE ACTING OUTSIDE TH E SCOPE OF THE AGREE MENT. 23
(B) THIS SECTION MAY NOT BE CONSTRUED TO PROV IDE IMMUNITY FROM 24
ACTIONS ALLEGING THA T A THIRD PARTY HAS : 25
(1) CAUSED PERSONAL INJUR Y AS A RESULT OF A N EGLIGENT, 26
RECKLESS, OR INTENTIONAL ACT ; 27
(2) FAILED TO GIVE EFFECT TO AN ADULT ’S DECISION MADE IN 28
ACCORDANCE WITH A VA LID DECISION–MAKING AGREEMENT ; 29
(3) FAILED TO PROVIDE INF ORMATION EITHER TO T HE ADULT OR A 30 HOUSE BILL 529 9
SUPPORTER OF THE ADUL T THAT WOULD BE NECE SSARY FOR INFORMED C ONSENT; 1
OR 2
(4) OTHERWISE ACTED INCON SISTENTLY WITH APPLI CABLE LAW. 3
Article – Health – General 4
5–601. 5
(a) In this subtitle the following words have the meanings indicated. 6
(o) (1) “Incapable of making an informed decision” means the inability of an 7
adult patient to make an informed decision about the provision, withholding, or withdrawal 8
of a specific medical treatment or course of treatment because the patient is unable to 9
understand the nature, extent, or probable consequences of the proposed treatment or 10
course of treatment, is unable to make a rational evaluation of the burdens, risks, and 11
benefits of the treatment or course of treatment, or is unable to communicate a decision. 12
(2) For the purposes of this subtitle, a competent individual who is able to 13
communicate by means other than speech OR WITH OTHER SUPPOR T, INCLUDING 14
SUPPORTED DECISION M AKING IN ACCORDANCE WITH TITLE 18 OF THE ESTATES 15
AND TRUSTS ARTICLE, may not be considered incapable of making an informed decision. 16
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 17
October 1, 2022. 18