EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
*sb0559*
SENATE BILL 559
N2 2lr1148
CF HB 529
By: Senators Waldstreicher, Smith, Lee, Hettleman, Zucker, and Guzzone
Introduced and read first time: January 31, 2022
Assigned to: Judicial Proceedings
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 BY THE GENERAL ASSEMBLY OF MARYLAND, 26
That the Laws of Maryland read as follows: 27 2 SENATE BILL 559
Article – Estates and Trusts 1
TITLE 18. SUPPORTED DECISION MAKING. 2
18–101. 3
(A) IN THIS TITLE THE FOL LOWING WORDS HAVE TH E MEANINGS 4
INDICATED. 5
(B) “SUPPORTED DECISION MAKING” MEANS A PROCESS BY WHICH AN 6
ADULT, WITH OR WITHOUT HAVI NG ENTERED A SUPPORT ED DECISION–MAKING 7
AGREEMENT , UTILIZES SUPPORT FROM A SERIES OF REL ATIONSHIPS IN ORDER TO 8
MAKE, COMMUNICATE , OR EFFECTUATE THE ADULT’S OWN LIFE DECISIONS . 9
(C) “SUPPORTED DECISION –MAKING AGREEMENT ” MEANS AN 10
ARRANGEMENT BETWEEN A N ADULT AND A SUPPOR TER OR SUPPORTERS THAT 11
DESCRIBES: 12
(1) HOW THE ADULT USES SUPPORTED DECISION MAKING TO MAKE 13
DECISIONS; 14
(2) THE RIGHTS OF THE ADU LT; AND 15
(3) THE RESPONSIBILITIES OF THE SUPPORT ER OR SUPPORTERS . 16
(D) “SUPPORTER” MEANS AN INDIVIDUAL SELECTED BY AN ADULT TO 17
PROVIDE SUPPORT IN M AKING, COMMUNICATING , OR EFFECTUATING THE ADULT’S 18
OWN LIFE DECISIONS. 19
18–102. 20
(A) THE PURPOSE OF THIS T ITLE IS TO ASSIST ADULTS BY: 21
(1) OBTAINING SUPPORT FOR THE ADULT IN MAKING, 22
COMMUNICATING , OR EFFECTUATING DECISIO NS THAT CORRESPOND T O THE WILL, 23
PREFERENCES , AND CHOICES OF THE ADULT; AND 24
(2) PREVENTING THE NEED FOR THE APPOINTMENT OF A 25
SUBSTITUTE DECISION MAKER FOR THE ADULT , INCLUDING A GUARDIAN OF THE 26
PERSON OR PROPERTY . 27
(B) THIS TITLE SHALL BE LIBERALLY C ONSTRUED AND APPLIED TO 28
PROMOTE ITS UNDERLYI NG PURPOSES AND POLICIES. 29 SENATE BILL 559 3
18–103. 1
(A) AN ADULT MAY UTILIZE SU PPORTED DECISION MAKING TO: 2
(1) INCREASE THE ADULT’S SELF–DETERMINATION ; 3
(2) PREVENT THE NEED FOR THE APPOINTMENT OF A SUBSTITUTE 4
DECISION MAKER; OR 5
(3) LIMIT OR TERMINATE TH E USE OF A SUBSTITUTE 6
DECISION MAKER. 7
(B) ALL ADULTS ARE PRESUM ED CAPABLE OF MAKING A SUPPORTED 8
DECISION–MAKING AGREEMENT . 9
(C) THE MANNER IN WHICH A N ADULT COMMUNICATES WITH OTHERS IS 10
NOT GROUNDS FOR DETERMINING THAT THE ADULT IS IN CAPABLE OF MAKING , 11
CHANGING, OR REVOKING A SUPPOR TED DECISION–MAKING AGREEMENT . 12
(D) EXECUTION OF A SUPPOR TED DECISION–MAKING AGREEMENT BY AN 13
ADULT MAY NOT: 14
(1) BE USED AS EVIDENCE O F INCAPACITY; OR 15
(2) PRECLUDE THE ABILITY OF THE ADULT TO: 16
(I) ACT INDEPENDENTLY OF A SUPPORTED DECISION –MAKING 17
AGREEMENT ; OR 18
(II) ACCESS THE ADULT’S PERSONAL INFORMATION WITHOUT A 19
SUPPORTER. 20
18–104. 21
(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, AN ADULT 22
MAY VOLUNTARILY , WITHOUT UNDUE INFLUENCE OR C OERCION, ENTER INTO A 23
SUPPORTED DECISION –MAKING AGREEMENT WIT H A SUPPORTER OR SUP PORTERS. 24
(B) (1) IF A PERSON UNDER GUA RDIANSHIP ENTERS INT O A SUPPORTED 25
DECISION–MAKING AGREEMENT UND ER THIS TITLE, THE AGREEMENT DOES NOT 26
SUPPLANT THE AUTHORITY OF A GUARDIAN OF THE ADULT, UNLESS THE COURT 27 4 SENATE BILL 559
AUTHORIZES THE LIMIT ATION OR REMOVAL OF GUARDIANSHIP DUE TO THE 1
EXISTENCE OF A SUPPO RTED DECISION –MAKING AGREE MENT. 2
(2) A GUARDIAN MAY NOT PRE VENT AN ADULT FROM ENTERING INTO 3
A VALID SUPPORTED DE CISION–MAKING AGREEMENT THA T DOES NOT SUPPLANT 4
THE AUTHORITY OF THE GUARDIAN WITHOUT GOOD CAUSE . 5
(C) IF AN ADULT VOLUNTARI LY ENTERS INTO A SUP PORTED 6
DECISION–MAKING AGREEMENT WIT H ONE OR MORE SUPPOR TERS, THE ADULT MAY 7
AUTHORIZE A SUPPORTER TO PROVIDE SUPPORT TO THE ADULT IN MAKING 8
DECISIONS IN AREAS OF THE ADULT’S CHOOSING, INCLUDING: 9
(1) GATHERING INFORMATION ; 10
(2) UNDERSTANDING AND INT ERPRETING INFORMATION ; 11
(3) WEIGHING OPTIONS AND ALTERNATIVES TO A DE CISION; 12
(4) UNDERSTANDING THE CONSEQUENCES 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 WIT H SUPPORT IN IMPLEME NTING 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 SUPPORTED DECISION –MAKING AGREEMENT . 21
(E) THE AVAILABILITY OF A SUPPORTED DECISION –MAKING AGREEMENT IS 22
NOT INTENDED TO LIMIT TH E INFORMAL USE OF SU PPORTED DECISION MAKING OR 23
TO PRECLUDE JUDICIAL CONSIDERATION OF INF ORMAL SUPPORTED 24
DECISION–MAKING ARRANGEMENTS AS A LE SS RESTRICTIVE ALTER NATIVE TO 25
GUARDIANSHIP . 26
(F) EXECUTION OF A SUPPOR TED DECISION–MAKING AGREEMENT MAY NOT 27
BE A CONDITION OF PARTICIPATING IN ANY ACTIVITY, SERVICE, OR PROGRAM . 28
18–105. 29
(A) A SUPPORTER SHALL : 30 SENATE BILL 559 5
(1) SUPPORT THE WI LL AND PREFERENCE OF THE ADULT AND NOT 1
THE SUPPORTER ’S OPINION OF THE REASONABLENESS OF TH E ADULT’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 MAKE 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 COMMUNICATES AND EXP RESSES 12
OPINIONS TO THE SUPPORTER ; AND 13
(6) KEEP ANY RECORDS AND INFORMATION OBTAINED 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 PRIVILEGED; AND 17
(II) SECURE FROM UNAUTHORIZED ACCESS , USE, OR 18
DISCLOSURE. 19
(B) THE RELATIONSHIP BETW EEN THE ADULT AND THE SUPPORTER SH ALL 20
BE ONE OF TRUST AND CONFIDENCE THAT PRES ERVES THE DECISION –MAKING 21
AUTHORITY OF THE ADULT. 22
(C) A SUPPORTER MAY N OT: 23
(1) MAKE DECISIONS ON BEH ALF OF THE ADULT ; 24
(2) EXERT UNDUE INFLUENCE ON THE ADU LT; 25
(3) COERCE THE ADULT; 26
6 SENATE BILL 559
(4) OBTAIN INFORMATION ABOUT THE ADULT WITHOUT THE ADULT’S 1
CONSENT; 2
(5) ENFORCE DECISIONS MAD E BY THE ADULT WITHO UT THE ADULT 3
BEING PRESENT, UNLESS THE ADULT EXP LICITLY AUTHORIZES T HE SUPPORTER TO 4
ENFORCE THE DECISION ; OR 5
(6) ACT OUTSIDE OF THE AU THORITY GRANTED IN T HE SUPPORTED 6
DECISION–MAKING AGREEMENT . 7
18–106. 8
(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION , A 9
SUPPORTER MAY BE ANY PERSON CHOSEN BY THE ADULT. 10
(B) THE FOLLOWING INDIVIDUALS ARE DISQUALIFIED FRO M ACTING AS A 11
SUPPORTER: 12
(1) A MINOR; 13
(2) AN INDIVIDUAL AGAINST WHOM THE ADULT HAS O BTAINED A 14
PEACE ORDER ; 15
(3) AN INDIVIDUAL WHO HAS BEEN CONV ICTED OF FINANCIAL 16
EXPLOITATION UNDER TITLE 13, SUBTITLE 6 OF THIS ARTICLE; AND 17
(4) AN INDIVIDUAL WHO IS THE SUBJECT OF A CIV IL OR CRIMINAL 18
ORDER PROHIBITING CO NTACT WITH THE ADULT . 19
(C) A SUPPORTER MAY RESIGN AS A SUPPORTER BY WR ITTEN OR ORAL 20
NOTICE TO THE ADULT, ANY REMAINING SUPPOR TERS OF THE ADULT NAMED IN THE 21
AGREEMENT , AND ANY THIRD PARTIE S WHO HAVE THE AGREEMENT ON FILE . 22
(D) IF A SUPPORTER RESIGN S, DIES, BECOMES INCAPABLE , OR BECOMES 23
FOR ANY OTHER REASON UNABLE TO ACT AS A SUPPORTER AND THERE IS NO 24
ALTERNATE SUPPORTER, THE AUTHORITY GIVEN TO THE SUPPORTER IS 25
SUSPENDED. 26
18–107. 27
(A) A SUPPORTED DECISION –MAKING AGREEMENT MAY BE IN ANY FORM 28
CONSISTENT WITH THE REQUIREMENTS UNDER THIS SECTION. 29
SENATE BILL 559 7
(B) A SUPPORTED DECISION –MAKING AGREEMENT SHA LL: 1
(1) BE DOCUMENTED ; 2
(2) BE DATED; 3
(3) NAME AT LEAST ONE SUP PORTER; 4
(4) DESCRIBE THE DECISION –MAKING ASSISTANCE THAT EACH 5
SUPPORTER MAY PROVID E THE ADULT; 6
(5) DESCRIBE HOW THE SUPPORTERS M AY WORK TOGETHER IF 7
THERE IS MORE THAN O NE SUPPORTER; 8
(6) DESCRIBE HOW ANY PERC EIVED OR ACTUAL CONF LICT OF 9
INTEREST BETWEEN THE SUPPORTER OR SUPPORTERS AND TH E ADULT SHALL BE 10
MITIGATED; 11
(7) DOCUMENT HOW THE ADUL T SELECTED THE SUPPO RTER OR 12
SUPPORTERS ; 13
(8) BE APPROVED BY THE COURT IF THE ADULT HAS BEEN 14
APPOINTED A GUARDIAN OF THE PE RSON OR PROPERTY AND THE SUPPORTED 15
DECISION–MAKING AGREEMENT AFFECTS THE AUTHORITY OF THE GUARDIAN ; 16
(9) CONTAIN AN ATTESTATIO N THAT THE SUPPORTER OR 17
SUPPORTERS AGREE TO HONOR THE RIGHT OF THE ADU LT TO MAKE DECISION S AND 18
THAT THE SUPPORTER OR SUP PORTERS WILL NOT MAKE DECISI ONS FOR THE 19
ADULT; AND 20
(10) BE WITNESSED BY TWO A DULTS WHO ARE NOT : 21
(I) A SUPPORTER FOR THE AD ULT; OR 22
(II) AN EMPLOYEE OR AGENT OF A SUPPORTER NAMED IN THE 23
SUPPORTED DECISION–MAKING AGREEMENT . 24
(C) A SUPPORTED DECISION –MAKING AGREEMENT MAY : 25
(1) APPOINT MORE THAN ONE SUPPORTER; AND 26
(2) APPOINT AN ALTERNATE TO ACT IN THE PLACE OF A SU PPORTER 27
IN CIRCUMSTANCES SPE CIFIED IN THE AGREEM ENT. 28 8 SENATE BILL 559
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 NEEDED FROM AN INDIVIDUAL OF THE 6
ADULT’S CHOOSING TO REVOKE THE AGREEM ENT. 7
18–109. 8
(A) A THIRD PARTY WHO IN GOOD FAITH AC TS IN RELIANCE ON TH E 9
DECISIONS MADE BY AN ADULT UTILIZING A SUPPORTED DECISION –MAKING 10
AGREEMENT OR WHO IN GOOD FAITH DECLINES TO HONOR A SUPPORTED 11
DECISION–MAKING AGREEMENT IS NOT SUBJECT TO CI VIL OR CRIMINAL LIABILITY 12
OR DISCIPLINE FOR UN PROFESSIONAL CONDUCT FOR: 13
(1) COMPLYING WITH A N ADULT’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 W ITH A SUPPORTED DECI SION–MAKING 18
AGREEMENT BASED ON A CTUAL KNOWLEDGE T HAT: 19
(I) THE AGREEMENT WAS INVALID, REVOKED, OR ABROGATED ; 20
OR 21
(II) A SUPPORTER WAS COERCI NG OR UNDULY INFLUENCING 22
THE ADULT OR OTHERWISE ACTING OUTSIDE THE SCOPE OF THE AGREEMENT . 23
(B) THIS SECTION MAY NOT BE CONSTRUED TO PROVIDE 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 VALID DECISION–MAKING AGREEMENT ; 29
SENATE BILL 559 9
(3) FAILED TO PROVIDE INF ORMATION EITHER TO T HE ADULT OR A 1
SUPPORTER OF THE ADU LT THAT WOULD BE NECESS ARY FOR INFORMED CON SENT; 2
OR 3
(4) OTHERWISE ACTED INCON SISTENTLY WITH APPLI CABLE LAW. 4
Article – Health – General 5
5–601. 6
(a) In this subtitle the following words have the meanings indicated. 7
(o) (1) “Incapable of making an informed decision” means the inability of an 8
adult patient to make an informed decision about the provision, withholding, or withdrawal 9
of a specific medical treatment or course of treatment because the patient is unable to 10
understand the nature, extent, or probable consequences of the proposed treatment or 11
course of treatment, is unable to make a rational evaluation of the burdens, risks, and 12
benefits of the treatment or course of treatment, or is unable to communicate a decision. 13
(2) For the purposes of this subtitle, a competent individual who is able to 14
communicate by means other than speech OR WITH OTHER SUPPOR T, INCLUDING 15
SUPPORTED DECISION MAKING IN ACCORDAN CE WITH TITLE 18 OF THE ESTATES 16
AND TRUSTS ARTICLE, may not be considered incapable of making an informed decision. 17
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 18
October 1, 2022. 19