EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
Underlining indicates amendments to bill.
Strike out indicates matter stricken from the bill by amendment or deleted from the law by
amendment.
*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
Committee Report: Favorable with amendments
Senate action: Adopted
Read second time: February 22, 2022
CHAPTER ______
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 recognizing the right of an 6
adult to enter into a supported decision–making agreement with one or more 7
supporters under certain circumstances; providing immunity from civil or criminal 8
liability under certain circumstances; and generally relating to supported decision 9
making for adults. 10
BY adding to 11
Article – Estates and Trusts 12
Section 18–101 through 18–109 to be under the new title “Title 18. Supported 13
Decision Making” 14
Annotated Code of Maryland 15
(2017 Replacement Volume and 2021 Supplement) 16
BY repealing and reenacting, without amendments, 17
Article – Health – General 18
Section 5–601(a) 19
Annotated Code of Maryland 20
(2019 Replacement Volume and 2021 Supplement) 21
BY repealing and reenacting, with amendments, 22 2 SENATE BILL 559
Article – Health – General 1
Section 5–601(o) 2
Annotated Code of Maryland 3
(2019 Replacement Volume and 2021 Supplement) 4
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 5
That the Laws of Maryland read as follows: 6
Article – Estates and Trusts 7
TITLE 18. SUPPORTED DECISION MAKING. 8
18–101. 9
(A) IN THIS TITLE THE FOL LOWING WORDS HAVE TH E MEANINGS 10
INDICATED. 11
(B) “SUPPORTED DECISION MA KING” MEANS A PROCESS BY W HICH AN 12
ADULT, WITH OR WITHOUT HAVI NG ENTERED A SUPPORT ED DECISION–MAKING 13
AGREEMENT , UTILIZES SUPPORT FRO M A SERIES OF RELATI ONSHIPS IN ORDER TO 14
MAKE, COMMUNICATE , OR EFFECTUATE THE AD ULT’S OWN LIFE DECISIONS . 15
(C) “SUPPORTED DECISION –MAKING AGREEMENT ” MEANS AN 16
ARRANGEMENT BETWEEN AN ADULT AND A SUPPO RTER OR SUPPORTERS T HAT 17
DESCRIBES: 18
(1) HOW THE ADULT USES SU PPORTED DECISION MAK ING TO MAKE 19
DECISIONS; 20
(2) THE RIGHTS OF THE ADU LT; AND 21
(3) THE RESPONSIBILITIES OF THE SUPPORTER OR SUPPORTERS . 22
(D) “SUPPORTER” MEANS AN INDIVIDUAL SELECTED BY AN ADULT TO 23
PROVIDE SUPPORT IN M AKING, COMMUNICATING , OR EFFECTUATING THE ADULT’S 24
OWN LIFE DECISIONS . 25
18–102. 26
(A) THE PURPOSE OF THIS T ITLE IS TO ASSIST ADULTS BY: 27
(1) OBTAINING SUPPORT FOR THE ADULT IN MAKING , 28
COMMUNICATING , OR EFFECTUATING DECI SIONS THAT CORRESPON D TO THE WILL, 29
PREFEREN CES, AND CHOICES OF THE A DULT; AND 30
SENATE BILL 559 3
(2) PREVENTING THE NEED F OR THE APPOINTMENT O F A 1
SUBSTITUTE DECISION MAKER FOR THE ADULT , INCLUDING A GUARDIAN OF THE 2
PERSON OR PROPERTY . 3
(B) THIS TITLE SHALL BE L IBERALLY CONSTRUED A ND APPLIED TO 4
PROMOTE ITS UNDERLY ING PURPOSES AND POL ICIES. 5
18–103. 6
(A) AN ADULT MAY UTILIZE SUPPORTED DECISION M AKING TO: 7
(1) INCREASE THE ADULT ’S SELF–DETERMINATION ; 8
(2) PREVENT THE NEED FOR THE APPOINTMENT OF A SUBSTITUTE 9
DECISION MAKER ; OR 10
(3) LIMIT OR TERMINATE TH E USE OF A SUBSTITUTE 11
DECISION MAKER . 12
(B) ALL ADULTS ARE PRESUM ED CAPABLE OF MAKING A SUPPORTED 13
DECISION–MAKING AGREEMENT . 14
(C) THE MANNER IN WHICH A N ADULT COMMUNICATES WITH OTHERS IS 15
NOT GROUNDS FOR DETE RMINING THAT THE ADU LT IS INCAPABLE OF M AKING, 16
CHANGING, OR REVOKING A SUPPOR TED DECISION–MAKING AGREEMENT . 17
(D) EXECUTION OF A SUPPOR TED DECISION–MAKING AGREEMENT BY AN 18
ADULT MAY NOT : 19
(1) BE USED AS EVIDENCE O F INCAPACITY; OR 20
(2) PRECLUDE THE ABILITY OF THE ADULT TO : 21
(I) ACT INDEPENDENTLY OF A SUPPORTED DECISION –MAKING 22
AGREEMENT ; OR 23
(II) ACCESS THE ADULT ’S PERSONAL INFORMATI ON WITHOUT A 24
SUPPORTER. 25
18–104. 26
(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, AN ADULT 27
MAY VOLUNTARILY , WITHOUT UNDUE INFLUE NCE OR COERCION, ENTER INTO A 28
SUPPORTED DECISION –MAKING AGREEMENT WIT H A SUPPORTER OR SUP PORTERS. 29
4 SENATE BILL 559
(B) (1) (I) IF A PERSON UNDER GUA RDIANSHIP ENTERS INT O A 1
SUPPORTED DECISION –MAKING AGREEMENT UND ER THIS TITLE, THE AGREEMENT 2
DOES NOT SUPPLANT TH E AUTHORITY OF A G UARDIAN OF THE ADULT , UNLESS THE 3
COURT AUTHORIZES THE LIMIT ATION OR REMOVAL OF GUARDIANSHIP DUE TO THE 4
EXISTENCE OF A SUPPO RTED DECISION –MAKING AGREEMENT . 5
(2) (II) A GUARDIAN MAY NOT PRE VENT AN ADULT FROM E NTERING 6
INTO A VALID SUPPORT ED DECISION –MAKING AGREEMENT THAT DOES NOT 7
SUPPLANT THE AUTHORI TY OF THE GUARDIAN W ITHOUT GOOD CAUSE . 8
(2) A SUPPORTED DECISION –MAKING AGREEMENT OR ANY 9
PROVISION OF THE AGR EEMENT DOES NOT : 10
(I) SUPPLANT THE AUTHORIT Y OF AN AGENT UNDER A POWER 11
OF ATTORNEY EXECUTED IN ACCORDANCE WITH TITLE 17 OF THIS ARTICLE OR A N 12
ADVANCE DIRECTIVE EX ECUTED IN ACCORDANCE WITH TITLE 5, SUBTITLE 6 OF THE 13
HEALTH – GENERAL ARTICLE; OR 14
(II) SUPPLANT OR GRANT AUT HORITY OR AGENCY POW ERS 15
CONTEMPLATED BY A PO WER OF ATTORNEY OR A N ADVANCE DIRECT IVE. 16
(C) IF AN ADULT VOLUNTARI LY ENTERS INTO A SUP PORTED 17
DECISION–MAKING AGREEMENT WIT H ONE OR MORE SUPPOR TERS, THE ADULT MAY 18
AUTHORIZE A SUPPORTE R TO PROVIDE SUPPORT TO THE ADULT IN MAKI NG 19
DECISIONS IN AREAS O F THE ADULT’S CHOOSING, INCLUDING: 20
(1) GATHERING INFORMATION ; 21
(2) UNDERSTANDING AND INT ERPRETING INFORMATIO N; 22
(3) WEIGHING OPTIONS AND ALTERNATIVES TO A DE CISION; 23
(4) UNDERSTANDING THE CON SEQUENCES OF MAKING OR NOT 24
MAKING A DECISION ; 25
(5) PARTICIPATING IN CONV ERSATIONS WITH THIRD PARTIES WITH 26
THE ADULT’S EXPLICIT AUTHORIZA TION; AND 27
(6) PROVIDING THE ADULT W ITH SUPPORT AND ADVOCACY IN 28
IMPLEMENTING A DECIS ION. 29
(D) NOTHING IN THIS TITLE OR THE EXISTENCE OF A SUPPORTED 30
DECISION–MAKING AGREEMENT MAY PRECLUDE THE ADULT F ROM ACTING 31
INDEPENDENTLY OF A SU PPORTED DECISION –MAKING AGREEMENT . 32 SENATE BILL 559 5
(E) THE AVAILABILITY OF A SUPPORTED DECISION –MAKING AGREEMENT IS 1
NOT INTENDED TO LIMI T THE INFORMAL USE O F SUPPORTED DECISION MAKING OR 2
TO PRECLUDE JUDICIAL CONSIDERATION OF INF ORMAL SUPPORTED 3
DECISION–MAKING ARRANGEMENTS AS A LESS RESTRICTIV E ALTERNATIVE TO 4
GUARDIANSHIP . 5
(F) EXECUTION OF A SUPPOR TED DECISION–MAKING AGREEMENT MAY NOT 6
BE A CONDITION OF PA RTICIPATING IN ANY A CTIVITY, SERVICE, OR PROGRAM . 7
18–105. 8
(A) A SUPPORTER SHALL : 9
(1) SUPPORT THE WILL AND PRE FERENCE OF THE ADULT AND NOT 10
THE SUPPORTER ’S OPINION OF THE REA SONABLENESS OF THE A DULT’S WISHES, 11
PREFERENCES , OR CHOICES; 12
(2) ACT HONESTLY, DILIGENTLY, AND IN GOOD FAITH ; 13
(3) ACT WITHIN THE AUTHOR ITY GIVEN IN THE SUP PORTED 14
DECISION–MAKING AGREEMENT ; 15
(4) AVOID CONFLICTS OF IN TEREST; 16
(5) MAINTAIN RECORDS , WHICH THE SUPPORTER SHALL MAKE 17
AVAILABLE TO THE ADU LT ON REQUEST , CONCERNING : 18
(I) THE SUPPORTER ’S ACTIONS UNDER THE SUPPORTED 19
DECISION–MAKING AGREEMENT ; AND 20
(II) HOW THE ADULT COMMUNI CATES AND EXPRESSES 21
OPINIONS TO THE SUPP ORTER; AND 22
(6) KEEP ANY RECORDS AND INFORMATION OBTAINED UNDER A 23
SUPPORTED DECISION –MAKING AGREEMENT : 24
(I) SUBJECT TO THE LIMITA TIONS UNDER TITLE 9, SUBTITLE 1 25
OF THE COURTS ARTICLE, CONFIDENTIAL AND PRIVILEGE D; AND 26
(II) SECURE FROM UNAUTHORI ZED ACCESS , USE, OR 27
DISCLOSURE; AND 28
6 SENATE BILL 559
(7) (I) DELIVER A COPY OF THE SUPPORTED DECISION –MAKING 1
AGREEMENT TO ANY DUL Y APPOINTED GUARDIAN OF THE PERSON OR PRO PERTY OF 2
THE ADULT; AND 3
(II) 1. MAKE A GOOD FAITH EFFORT TO DETERMINE IF THE 4
ADULT HAS A FULLY EX ECUTED POWER OF ATTO RNEY, ADVANCE DIRECTIVE , OR 5
REVOCABLE TRUST AGRE EMENT; AND 6
2. UNLESS THE ADULT EXPR ESSLY OBJECTS, DELIVER A 7
COPY OF THE SUPPORTE D DECISION–MAKING AGREEMENT TO ANY AGENT 8
DESIGNATED UNDER A POWER OF ATTORNEY OR AN AD VANCE DIRECTIVE OR A NY 9
TRUSTEE UNDER A REVO CABLE TRUST AGREEMEN T. 10
(B) THE RELATIONSHIP BETW EEN THE ADULT AND TH E SUPPORTER SHALL 11
BE ONE OF TRUST AND CONFIDENCE THAT PRES ERVES THE DECISION –MAKING 12
AUTHORITY OF THE A DULT. 13
(C) A SUPPORTER MAY NOT : 14
(1) MAKE DECISIONS ON BEH ALF OF THE ADULT ; 15
(2) EXERT UNDUE INFLUENCE ON THE ADULT; 16
(3) COERCE THE ADULT ; 17
(4) OBTAIN INFORMATION AB OUT THE ADULT WITHOU T THE ADULT’S 18
CONSENT; 19
(5) ENFORCE DECISIONS MAD E BY THE ADULT WITHOUT THE ADULT 20
BEING PRESENT , UNLESS THE ADULT EXP LICITLY AUTHORIZES T HE SUPPORTER TO 21
ENFORCE THE DECISION ; OR 22
(6) ACT OUTSIDE OF THE AU THORITY GRANTED IN T HE SUPPORTED 23
DECISION–MAKING AGREEMENT . 24
18–106. 25
(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION , A 26
SUPPORTER MAY BE ANY PERSON CHOSEN BY THE ADULT. 27
(B) THE FOLLOWING INDIVID UALS ARE DISQUALIFIE D FROM ACTING AS A 28
SUPPORTER: 29
(1) A MINOR; 30 SENATE BILL 559 7
(2) AN INDIVIDUAL AGAINST WHOM THE ADULT HAS O BTAINED A 1
PEACE ORDER OR A PROTECTIVE ORDE R; 2
(3) AN INDIVIDUAL WHO HAS BEEN CONVICTED OF FI NANCIAL 3
EXPLOITATION UNDER TITLE 13, SUBTITLE 6 OF THIS ARTICLE; AND 4
(4) AN INDIVIDUAL WHO IS THE SUBJECT OF A CIV IL OR CRIMINAL 5
ORDER PROHIBITING CO NTACT WITH THE A DULT. 6
(C) A SUPPORTER MAY RESIGN AS A SUPPORTER BY WR ITTEN OR ORAL 7
NOTICE TO THE ADULT , ANY REMAINING SUPPOR TERS OF THE ADULT NA MED IN THE 8
AGREEMENT , AND ANY THIRD PARTIE S WHO HAVE THE AGREE MENT ON FILE. 9
(D) IF A SUPPORTER RESIGN S, DIES, BECOMES INCAPA BLE, OR BECOMES 10
FOR ANY OTHER REASON UNABLE TO ACT AS A S UPPORTER AND THERE I S NO 11
ALTERNATE SUPPORTER , THE AUTHORITY GIVEN TO THE SUPPORTER IS 12
SUSPENDED. 13
18–107. 14
(A) A SUPPORTED DECISION –MAKING AGREEMENT MAY BE IN ANY FORM 15
CONSISTENT WITH THE REQUIREMENTS UNDER T HIS SECTION. 16
(B) A SUPPORTED DECISION –MAKING AGREEMENT SHA LL: 17
(1) BE DOCUMENTED IN WRITING; 18
(2) BE DATED; 19
(3) NAME AT LEAST ONE SUP PORTER; 20
(4) DESCRIBE THE DECISION –MAKING ASSISTANCE TH AT EACH 21
SUPPORTER MAY PROVID E THE ADULT; 22
(5) DESCRIBE HOW THE SUPP ORTERS MAY WORK TOGE THER IF 23
THERE IS MORE THAN O NE SUPPORTER ; 24
(6) DESCRIBE HOW ANY PERC EIVED OR ACTUAL CONF LICT OF 25
INTEREST BETWEEN THE SUPPORTER OR SUPPORTERS AN D THE ADULT SHALL BE 26
MITIGATED; 27
(7) DOCUMENT HOW THE ADUL T SELECTED THE SUPPO RTER OR 28
SUPPORTERS ; 29
8 SENATE BILL 559
(8) BE APPROVED BY THE CO URT IF THE ADULT HAS BEEN 1
APPOINTED A GUARDIAN OF THE PERSON OR PRO PERTY AND THE SUPPOR TED 2
DECISION–MAKING AGREEMENT AFFECTS THE AUTHORITY OF THE GUA RDIAN; 3
(9) STATE THAT: 4
(I) THE SUPPORTER OR SUPP ORTERS MAY NOT MAKE 5
DECISIONS OR EFFECTU ATE TRANSACTIONS FOR THE ADULT; AND 6
(II) THE SUPPORTED DECISIO N–MAKING AGREEMENT OR ANY 7
PROVISION OF THE AGR EEMENT DOES NOT: 8
1. AUTHORIZE THE SUPPORT ER OR SUPPORTERS TO 9
ACT ON BEHALF OF THE ADULT; 10
2. SUPPLANT THE AUTHORIT Y OF AN AGENT UNDER A 11
POWER OF ATTORNEY EX ECUTED IN ACCORDANCE WITH TITLE 17 OF THIS ARTICLE 12
OR AN ADVANCE DIRECT IVE EXECUTED IN ACCO RDANCE WITH TITLE 5, SUBTITLE 6 13
OF THE HEALTH – GENERAL ARTICLE; OR 14
3. SUPPLANT OR GRANT AUT HORITY OR AGENCY 15
POWERS CONTEMPLATED BY A POWER OF ATTORN EY OR AN ADVANCE DIR ECTIVE; 16
(9) (10) CONTAIN AN ATTESTATIO N THAT THE SUPPORTER OR 17
SUPPORTERS AGREE TO HONOR THE RIGHT OF THE ADULT TO MAKE DECISI ONS AND 18
THAT THE SUPPORTER O R SUPPORTERS WILL NO T MAKE DECISIONS FOR THE 19
ADULT; AND 20
(10) (11) BE SIGNED BY THE ADULT AND THE SUPPORTER OR 21
SUPPORTERS , WITH EACH SIGNATURE WITNESSED BY TWO ADU LTS WHO ARE NOT : 22
(I) A SUPPORTER FOR THE AD ULT; OR 23
(II) AN EMPLOYEE OR AGENT OF A SUPPORTER NAMED IN THE 24
SUPPORTED DECISION –MAKING AGREEMENT ; AND 25
(12) IF THE ADULT HAS A FU LLY EXECUTED POWER O F ATTORNEY, 26
ADVANCE DIRECTIVE , OR REVOCABLE TRUST A GREEMENT AND THE ADU LT DOES 27
NOT EXPRESSLY OBJECT , DELIVER A COPY OF TH E SUPPORTED DECISION –MAKING 28
AGREEMENT TO THE AGE NT DESIGNATED UNDER THE POWER OF ATTORNE Y OR 29
ADVANCE DIRECTIVE OR ANY TRUSTEE UNDER TH E REVOCABLE TRUST 30
AGREEMENT . 31
(C) A SUPPORTED DECISION –MAKING AGREEMENT MA Y: 32 SENATE BILL 559 9
(1) APPOINT MORE THAN ONE SUPPORTER; AND 1
(2) APPOINT AN ALTERNATE TO ACT IN THE PLACE OF A SUPPORTER 2
IN CIRCUMSTANCES SPE CIFIED IN THE AGREEM ENT. 3
18–108. 4
AN ADULT UTILIZING A SUPPORTED DECISION –MAKING AGREEMENT MAY : 5
(1) REVOKE THE SUPPORTED DECISION–MAKING AGREEMENT AT 6
ANY TIME ORALLY , IN WRITING, OR OTHERWISE BY EXPR ESSING THE ADULT ’S 7
SPECIFIC INTENT TO R EVOKE THE AGREEMENT ; AND 8
(2) RECEIVE ANY SUPPORT N EEDED FROM AN INDIVI DUAL OF THE 9
ADULT’S CHOOSING TO REVOKE THE AGREEMENT. 10
18–109. 11
(A) A THIRD PARTY WHO IN GOOD FAITH AC TS IN RELIANCE ON TH E 12
DECISIONS MADE BY AN ADULT UTILIZING A SU PPORTED DECISION –MAKING 13
AGREEMENT OR WHO IN GOOD FAITH DECLINES TO HONOR A SUPPORTED 14
DECISION–MAKING AGREEMENT IS NOT SUBJECT TO CI VIL OR CRIMINAL LIAB ILITY 15
OR DISCIPLINE FOR UN PROFESSIONAL CONDUCT FOR: 16
(1) COMPLYING IF THE THIRD PARTY AC TED IN GOOD FAITH 17
RELIANCE ON A DECISI ON MADE BY AN ADULT UTILIZING A SUPPORTE D 18
DECISION–MAKING AGREEMENT , COMPLYING WITH AN ADULT’S DECISION IN 19
ACCORDANCE WITH A SU PPORTED DECISION –MAKING AGREEMENT BASED ON AN OR 20
OTHERWISE COMPLYING WITH A SUPPORTED DEC ISION–MAKING AGREEMENT 21
BASED ON A GOOD FAIT H ASSUMPTION THAT THE SUPPORTED DECISION –MAKING 22
AGREEMENT WAS VALID WHEN MADE AND NOT REVOKED OR ABROG ATED; OR 23
(2) DECLINING TO HONOR A DECISION MADE BY AN ADULT UTI LIZING 24
A SUPPORTED DECISION –MAKING AGREEMENT OR FAILING TO COMPLY WITH A 25
SUPPORTED DECISION –MAKING AGREEMENT BAS ED ON ACTUAL KNOWLEDGE A 26
REASONABLE GOOD FAIT H BELIEF THAT: 27
(I) THE AGREEMENT WAS INV ALID, REVOKED, OR ABROGATED ; 28
OR 29
(II) A SUPPORTER WAS COERCI NG OR UNDULY INFLUEN CING 30
THE ADULT OR OTHERWI SE ACTING OUTSIDE TH E SCOPE OF THE AGREE MENT. 31
10 SENATE BILL 559
(B) THIS SECTION MAY NOT BE CONSTRUED TO PROV IDE IMMUNITY FROM 1
ACTIONS ALLEGING THA T A THIRD PARTY HAS : 2
(1) CAUSED PERSONAL INJUR Y AS A RESULT OF A N EGLIGENT, 3
RECKLESS, OR INTENTIONAL ACT ; 4
(2) FAILED TO GIVE EFFECT TO AN ADULT ’S DECISION MADE IN 5
ACCORDANCE WITH A VA LID DECISION–MAKING AGREEMENT ; 6
(3) FAILED TO PROVIDE INFORMATIO N EITHER TO THE ADUL T OR A 7
SUPPORTER OF THE ADU LT THAT WOULD BE NEC ESSARY FOR INFORMED CONSENT; 8
OR 9
(4) OTHERWISE ACTED INCON SISTENTLY WITH APPLI CABLE LAW. 10
Article – Health – General 11
5–601. 12
(a) In this subtitle the following words have the meanings indicated. 13
(o) (1) “Incapable of making an informed decision” means the inability of an 14
adult patient to make an informed decision about the provision, withholding, or withdrawal 15
of a specific medical treatment or course of treatment because the patient is unable to 16
understand the nature, extent, or probable consequences of the proposed treatment or 17
course of treatment, is unable to make a rational evaluation of the burdens, risks, and 18
benefits of the treatment or course of treatment, or is unable to communicate a decision. 19
(2) For the purposes of this subtitle, a competent individual who is able to 20
communicate by means other than speech OR WITH OTHER SUPPOR T, INCLUDING 21
SUPPORTED DECISION M AKING IN ACCORDANCE WITH TITLE 18 OF THE ESTATES 22
AND TRUSTS ARTICLE, may not be considered incapable of making an informed decision. 23
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 24
October 1, 2022. 25