LAWRENCE J. HOGAN, JR., Governor Ch. 631
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Chapter 631
(Senate Bill 559)
AN ACT concerning
Estates and Trusts – Supported Decision Making
FOR the purpose of authorizing the use of supported decision making to assist an adult
through the provision of support for the adult in making, communicating, or
effectuating decisions and preventing the need for the appointment of certain
substitute decision makers for the adult; authorizing recognizing the right of an
adult to enter into a supported decision–making agreement with one or more
supporters under certain circumstances; providing immunity from civil or criminal
liability under certain circumstances; and generally relating to supported decision
making for adults.
BY adding to
Article – Estates and Trusts
Section 18–101 through 18–109 to be under the new title “Title 18. Supported
Decision Making”
Annotated Code of Maryland
(2017 Replacement Volume and 2021 Supplement)
BY repealing and reenacting, without amendments,
Article – Health – General
Section 5–601(a)
Annotated Code of Maryland
(2019 Replacement Volume and 2021 Supplement)
BY repealing and reenacting, with amendments,
Article – Health – General
Section 5–601(o)
Annotated Code of Maryland
(2019 Replacement Volume and 2021 Supplement)
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND,
That the Laws of Maryland read as follows:
Article – Estates and Trusts
TITLE 18. SUPPORTED DECISION MAKING.
18–101.
Ch. 631 2022 LAWS OF MARYLAND
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(A) IN THIS TITLE THE FOL LOWING WORDS HAVE TH E MEANINGS
INDICATED.
(B) “SUPPORTED DECISION MA KING” MEANS A PROCESS BY W HICH AN
ADULT, WITH OR WITHOUT HAVI NG ENTERED A SUPPORT ED DECISION–MAKING
AGREEMENT , UTILIZES SUPPORT FRO M A SERIES OF RELATI ONSHIPS IN ORDER TO
MAKE, COMMUNICATE , OR EFFECTUATE THE AD ULT’S OWN LIFE DECISIONS .
(C) “SUPPORTED DECISION –MAKING AGREEMENT ” MEANS AN
ARRANGEMENT BETWEEN AN ADULT AND A SUPPO RTER OR SUPPORTERS T HAT
DESCRIBES:
(1) HOW THE ADULT USES SU PPORTED DECISION MAK ING TO MAKE
DECISIONS;
(2) THE RIGHTS OF THE ADU LT; AND
(3) THE RESPONSIBILITIES OF THE SUPPORTER OR SUPPORTERS .
(D) “SUPPORTER” MEANS AN INDIVIDUAL SELECTED BY AN ADULT TO
PROVIDE SUPPORT IN MAKING, COMMUNICATING , OR EFFECTUATING THE ADULT’S
OWN LIFE DECISIONS .
18–102.
(A) THE PURPOSE OF THIS T ITLE IS TO ASSIST AD ULTS BY:
(1) OBTAINING SUPPORT FOR THE ADULT IN MAKING ,
COMMUNICATING , OR EFFECTUATING DECI SIONS THAT CORRESPON D TO THE WILL,
PREFERENCES , AND CHOICES OF THE A DULT; AND
(2) PREVENTING THE NEED F OR THE APPOINTMENT O F A
SUBSTITUTE DECISION MAKER FOR THE ADULT , INCLUDING A GUARDIAN OF THE
PERSON OR PROPERTY .
(B) THIS TITLE SHALL BE L IBERALLY CONSTRUED A ND APPLIED TO
PROMOTE IT S UNDERLYING PURPOSE S AND POLICIES.
18–103.
(A) AN ADULT MAY UTILIZE SUPPORTED DECISION M AKING TO:
(1) INCREASE THE ADULT ’S SELF–DETERMINATION ;
LAWRENCE J. HOGAN, JR., Governor Ch. 631
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(2) PREVENT THE NEED FOR THE APPOINTMENT OF A SUBSTITUTE
DECISION MAKER ; OR
(3) LIMIT OR TERMINATE TH E USE OF A SUBSTITUT E
DECISION MAKER .
(B) ALL ADULTS ARE PRESUM ED CAPABLE OF MAKING A SUPPORTED
DECISION–MAKING AGREEMENT .
(C) THE MANNER IN WHICH A N ADULT COMMUNICATES WITH OTHERS IS
NOT GROUNDS FOR DETE RMINING THAT THE ADU LT IS INCAPABLE OF MAKING ,
CHANGING, OR REVOKING A SUPPOR TED DECISION–MAKING AGREEMENT .
(D) EXECUTION OF A SUPPOR TED DECISION–MAKING AGREEMENT BY AN
ADULT MAY NOT :
(1) BE USED AS EVIDENCE O F INCAPACITY; OR
(2) PRECLUDE THE ABILITY OF THE ADULT TO :
(I) ACT INDEPENDENTLY OF A SUPPORTED DECISION –MAKING
AGREEMENT ; OR
(II) ACCESS THE ADULT ’S PERSONAL INFORMATI ON WITHOUT A
SUPPORTER .
18–104.
(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, AN ADULT
MAY VOLUNTARILY , WITHOUT UNDUE INFLUE NCE OR COERCION , ENTER INTO A
SUPPORTED DECISION –MAKING AGREEMENT WIT H A SUPPORTER OR SUP PORTERS.
(B) (1) (I) IF A PERSON UNDER GUA RDIANSHIP ENTERS INT O A
SUPPORTED DECISION –MAKING AGREEMENT UND ER THIS TITLE, THE AGREEMENT
DOES NOT SUPPLANT TH E AUTHORITY OF A GUARDIAN OF THE AD ULT, UNLESS THE
COURT AUTHORIZES THE LIMIT ATION OR REMOVAL OF GUARDIANSHIP DUE TO THE
EXISTENCE OF A SUPPO RTED DECISION –MAKING AGREEMENT .
(2) (II) A GUARDIAN MAY NOT PRE VENT AN ADULT FROM E NTERING
INTO A VALID SUPPORT ED DECISION–MAKING AGREEMENT THA T DOES NOT
SUPPLANT THE AUTHORI TY OF THE GUARDIAN W ITHOUT GOOD CAUSE .
(2) A SUPPORTED DECISION –MAKING AGREEMENT OR ANY
PROVISION OF THE AGR EEMENT DOES NOT : Ch. 631 2022 LAWS OF MARYLAND
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(I) SUPPLANT THE AUTHORIT Y OF AN AGENT UNDER A POWER
OF ATTORNEY EXECUTED IN ACCORDAN CE WITH TITLE 17 OF THIS ARTICLE OR A N
ADVANCE DIRECTIVE EX ECUTED IN ACCORDANCE WITH TITLE 5, SUBTITLE 6 OF THE
HEALTH – GENERAL ARTICLE; OR
(II) SUPPLANT OR GRANT AUT HORITY OR AGENCY POW ERS
CONTEMPLATED BY A PO WER OF ATTORNEY OR A N ADVANCE DIRECTIVE .
(C) IF AN ADULT VOLUNTARI LY ENTERS INTO A SUP PORTED
DECISION–MAKING AGREEMENT WIT H ONE OR MORE SUPPOR TERS, THE ADULT MAY
AUTHORIZE A SUPPORTE R TO PROVIDE SUPPORT TO THE ADULT IN MAKI NG
DECISIONS IN AREAS O F THE ADULT’S CHOOSING, INCLUDING:
(1) GATHERING INFORMATION ;
(2) UNDERSTANDING AND INT ERPRETING INFORMATIO N;
(3) WEIGHING OPTIONS AND ALTERNATIVES TO A DE CISION;
(4) UNDERSTANDING THE CON SEQUENCES OF MAKING OR NOT
MAKING A DECISION ;
(5) PARTICIPATING IN CONVERSATIONS WITH T HIRD PARTIES WITH
THE ADULT’S EXPLICIT AUTHORIZA TION; AND
(6) PROVIDING THE ADULT W ITH SUPPORT AND ADVOCACY IN
IMPLEMENTING A DECIS ION.
(D) NOTHING IN THIS TITLE OR THE EXISTENCE OF A SUPPORTED
DECISION–MAKING AGREEMENT MAY PRECLUD E THE ADULT FROM ACT ING
INDEPENDENTLY OF A S UPPORTED DECISION –MAKING AGREEMENT .
(E) THE AVAILABILITY OF A SUPPORTED DECISION –MAKING AGREEMENT IS
NOT INTENDED TO LIMI T THE INFORMAL USE O F SUPPORTED DECISION MAKING OR
TO PRECLUDE JUDICIAL CONSIDERATION OF INFORMAL SUPPORTED
DECISION–MAKING ARRANGEMENTS AS A LESS RESTRICTIV E ALTERNATIVE TO
GUARDIANSHIP .
(F) EXECUTION OF A SUPPOR TED DECISION–MAKING AGREEMENT MAY NOT
BE A CONDITION OF PA RTICIPATING IN ANY A CTIVITY, SERVICE, OR PROGRAM .
18–105.
LAWRENCE J. HOGAN, JR., Governor Ch. 631
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(A) A SUPPORTER SHALL :
(1) SUPPORT THE WILL AND PREFERENCE OF THE AD ULT AND NOT
THE SUPPORTER ’S OPINION OF THE REA SONABLENESS OF THE A DULT’S WISHES,
PREFERENCES , OR CHOICES;
(2) ACT HONESTLY , DILIGENTLY, AND IN GOOD FAITH ;
(3) ACT WITHIN THE AUTHOR ITY GIVEN IN THE SUPPORTE D
DECISION–MAKING AGREEMENT ;
(4) AVOID CONFLICTS OF IN TEREST;
(5) MAINTAIN RECORDS , WHICH THE SUPPORTER SHALL MAKE
AVAILABLE TO THE ADU LT ON REQUEST , CONCERNING :
(I) THE SUPPORTER ’S ACTIONS UNDER THE SUPPORTED
DECISION–MAKING AGREEMENT ; AND
(II) HOW THE ADULT COMMUNI CATES AND EXPRESSES
OPINIONS TO THE SUPP ORTER; AND
(6) KEEP ANY RECORDS AND INFORMATION OBTAINED UNDER A
SUPPORTED DECISION –MAKING AGREEMENT :
(I) SUBJECT TO THE LIMITA TIONS UNDER TITLE 9, SUBTITLE 1
OF THE COURTS ARTICLE, CONFIDENTIAL AND PRI VILEGED; AND
(II) SECURE FROM UNAUTHORI ZED ACCESS , USE, OR
DISCLOSURE; AND
(7) (I) DELIVER A COPY OF THE SUPPORTED DECISION –MAKING
AGREEMENT TO ANY DUL Y APPOINTED GUARDIAN OF THE PERSON OR PRO PERTY OF
THE ADULT; AND
(II) 1. MAKE A GOOD FAITH EFF ORT TO DETERMINE IF THE
ADULT HAS A FULLY EX ECUTED POWER OF ATTO RNEY, ADVANCE DIRECTIVE , OR
REVOCABLE TRUST AGRE EMENT; AND
2. UNLESS THE ADULT EXPR ESSLY OBJECTS, DELIVER A
COPY OF THE SUPPORTE D DECISION–MAKING AGREEMENT TO ANY AGE NT
DESIGNATED UNDER A P OWER OF ATTORNEY OR AN ADVANCE DIRECTIVE OR ANY
TRUSTEE UNDER A REVO CABLE TRUST AGREEMEN T.
Ch. 631 2022 LAWS OF MARYLAND
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(B) THE RELATIONSHIP BETW EEN THE ADULT AND TH E SUPPORTER SHALL
BE ONE OF TRUST AND CONFIDENCE THAT PRES ERVES THE DECISIO N–MAKING
AUTHORITY OF THE ADU LT.
(C) A SUPPORTER MAY NOT :
(1) MAKE DECISIONS ON BEH ALF OF THE ADULT ;
(2) EXERT UNDUE INFLUENCE ON THE ADULT ;
(3) COERCE THE ADULT ;
(4) OBTAIN INFORMATION AB OUT THE ADULT WITHOU T THE ADULT’S
CONSENT;
(5) ENFORCE DECISIONS MADE B Y THE ADULT WITHOUT THE ADULT
BEING PRESENT , UNLESS THE ADULT EXP LICITLY AUTHORIZES T HE SUPPORTER TO
ENFORCE THE DECISION ; OR
(6) ACT OUTSIDE OF THE AU THORITY GRANTED IN T HE SUPPORTED
DECISION–MAKING AGREEMENT .
18–106.
(A) EXCEPT AS PROVIDED IN SUBSE CTION (B) OF THIS SECTION , A
SUPPORTER MAY BE ANY PERSON CHOSEN BY THE ADULT.
(B) THE FOLLOWING INDIVID UALS ARE DISQUALIFIE D FROM ACTING AS A
SUPPORTER :
(1) A MINOR;
(2) AN INDIVIDUAL AGAINST WHOM THE ADULT HAS O BTAINED A
PEACE ORDER OR A PROTECTIVE ORDE R;
(3) AN INDIVIDUAL WHO HAS BEEN CONVICTED OF FI NANCIAL
EXPLOITATION UNDER TITLE 13, SUBTITLE 6 OF THIS ARTICLE; AND
(4) AN INDIVIDUAL WHO IS THE SUBJECT OF A CIV IL OR CRIMINAL
ORDER PROHIBITING CO NTACT WITH THE ADULT .
(C) A SUPPORTER MAY RESIGN AS A SUPPORTER BY WR ITTEN OR ORAL
NOTICE TO THE ADULT , ANY REMAINING SUPPOR TERS OF THE ADULT NA MED IN THE
AGREEMENT , AND ANY THIRD PARTIE S WHO HAVE THE AGREE MENT ON FILE. LAWRENCE J. HOGAN, JR., Governor Ch. 631
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(D) IF A SUPPORTER RESIGN S, DIES, BECOMES INCAPABLE , OR BECOMES
FOR ANY OTHER REASON UNABLE TO ACT AS A S UPPORTER AND THERE I S NO
ALTERNATE SUPPORTER , THE AUTHORITY GIVEN TO THE SUPPORTER IS
SUSPENDED .
18–107.
(A) A SUPPORTED DECISION –MAKING AGREEMENT MAY BE IN ANY FORM
CONSISTENT WITH THE REQUIREMENTS UNDER T HIS SECTION.
(B) A SUPPORTED DECISION –MAKING AGREEMENT SHA LL:
(1) BE DOCUMENTED IN WRITING;
(2) BE DATED;
(3) NAME AT LEAST ONE SUP PORTER;
(4) DESCRIBE THE DECISION –MAKING ASSISTANCE THAT EACH
SUPPORTER MAY PROVID E THE ADULT;
(5) DESCRIBE HOW THE SUPP ORTERS MAY WORK TOGE THER IF
THERE IS MORE THAN O NE SUPPORTER ;
(6) DESCRIBE HOW ANY PERC EIVED OR ACTUAL CONF LICT OF
INTEREST BETWEEN THE SUPPORTER OR SUPPORT ERS AND THE ADULT SHALL BE
MITIGATED;
(7) DOCUMENT HOW THE ADUL T SELECTED THE SUPPO RTER OR
SUPPORTERS ;
(8) BE APPROVED BY THE CO URT IF THE ADULT HAS BEEN
APPOINTED A GUARDIAN OF THE PERSON OR PRO PERTY AND THE SUPPOR TED
DECISION–MAKING AGREEMENT AFF ECTS THE AUTHO RITY OF THE GUARDIAN ;
(9) STATE THAT:
(I) THE SUPPORTER OR SUPP ORTERS MAY NOT MAKE
DECISIONS OR EFFECTU ATE TRANSACTIONS FOR THE ADULT; AND
(II) THE SUPPORTED DECISIO N–MAKING AGREEMENT OR ANY
PROVISION OF THE AGR EEMENT DOES NOT :
Ch. 631 2022 LAWS OF MARYLAND
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1. AUTHORIZE THE SUPPORTER OR SUP PORTERS TO
ACT ON BEHALF OF THE ADULT;
2. SUPPLANT THE AUTHORIT Y OF AN AGENT UNDER A
POWER OF ATTORNEY EX ECUTED IN ACCORDANCE WITH TITLE 17 OF THIS ARTICLE
OR AN ADVANCE DIRECT IVE EXECUTED IN ACCO RDANCE WITH TITLE 5, SUBTITLE 6
OF THE HEALTH – GENERAL ARTICLE; OR
3. SUPPLANT OR GRANT AUT HORITY OR AGENCY
POWERS CONTEMPLATED BY A POWER OF ATTORN EY OR AN ADVANCE DIR ECTIVE;
(9) (10) CONTAIN AN ATTESTATIO N THAT THE SUPPORTER OR
SUPPORTERS AGREE TO HONOR THE RIGHT OF T HE ADULT TO MAKE DECISIONS AND
THAT THE SUPPORTER O R SUPPORTERS WILL NO T MAKE DECISIONS FOR THE
ADULT; AND
(10) (11) BE SIGNED BY THE ADULT AND THE SUPPORTER OR
SUPPORTERS , WITH EACH SIGNATURE WITNESSED BY TWO ADU LTS WHO ARE NOT :
(I) A SUPPORTER FOR THE AD ULT; OR
(II) AN EMPLOYEE OR AGENT OF A SUPPORTER NAMED IN THE
SUPPORTED DECISION –MAKING AGREEMENT ; AND
(12) IF THE ADULT HAS A FU LLY EXECUTED POWER O F ATTORNEY,
ADVANCE DIRECTIVE , OR REVOCABLE TRUST A GREEMENT AND THE ADU LT DOES
NOT EXPRESSLY OBJECT , DELIVER A COPY OF TH E SUPPORTED DECISION –MAKING
AGREEMENT TO THE AGE NT DESIGNATED UNDER THE POWER OF ATTORNE Y OR
ADVANCE DIRECTIVE OR ANY TRUSTEE UNDER TH E REVOCABLE TRUST
AGREEMENT .
(C) A SUPPORTED DECISION –MAKING AGREEMENT MAY :
(1) APPOINT MORE THAN ONE SUPPORTER ; AND
(2) APPOINT AN ALTERNATE TO ACT IN THE PLACE OF A SUPPORTER
IN CIRCUMSTANCES SPE CIFIED IN THE AGREEM ENT.
18–108.
AN ADULT UTILIZING A SUPPORTED DECISION –MAKING AGREEMENT MAY :
LAWRENCE J. HOGAN, JR., Governor Ch. 631
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(1) REVOKE THE SUPPORTED DECISION–MAKING AGREEMENT AT
ANY TIME ORALLY , IN WRITING, OR OTHERWISE BY EXPR ESSING THE ADULT ’S
SPECIFIC INTENT TO R EVOKE THE AGREEMENT ; AND
(2) RECEIVE ANY SUPPORT N EEDED FROM AN INDIVI DUAL OF THE
ADULT’S CHOOSING TO REVOKE THE AGREEMENT .
18–109.
(A) A THIRD PARTY WHO IN GOOD FAITH AC TS IN RELIANCE ON TH E
DECISIONS MADE BY AN ADULT UTILIZING A SU PPORTED DECISION –MAKING
AGREEMENT OR WHO IN GOOD FAITH DECLINES TO HONOR A SUPPORTED
DECISION–MAKING AGREEMENT IS NOT SUBJECT TO CI VIL OR CRIMINAL LIAB ILITY
OR DISCIPLINE FOR UNP ROFESSIONAL CONDUCT FOR:
(1) COMPLYING IF THE THIRD PARTY AC TED IN GOOD FAITH
RELIANCE ON A DECISI ON MADE BY AN ADULT UTILIZING A SUPPORTE D
DECISION–MAKING AGREEMENT , COMPLYING WITH AN ADULT ’S DECISION IN
ACCORDANCE WITH A SU PPORTED DECISION–MAKING AGREEMENT BASED ON AN OR
OTHERWISE COMPLYING WITH A SUPPORTED DEC ISION–MAKING AGREEMENT
BASED ON A GOOD FAIT H ASSUMPTION THAT THE SUPPORTED DECISION –MAKING
AGREEMENT WAS VALID WHEN MADE AND NOT RE VOKED OR ABROGATED ; OR
(2) DECLINING TO HONOR A DECISION M ADE BY AN ADULT UTIL IZING
A SUPPORTED DECISION –MAKING AGREEMENT OR FAILING TO COMPLY WITH A
SUPPORTED DECISION –MAKING AGREEMENT BAS ED ON ACTUAL KNOWLEDGE A
REASONABLE GOOD FAIT H BELIEF THAT:
(I) THE AGREEMENT WAS INV ALID, REVOKED, OR ABROGATED ;
OR
(II) A SUPPORTER WAS COERCI NG OR UNDULY INFLUEN CING
THE ADULT OR OTHERWI SE ACTING OUTSIDE TH E SCOPE OF THE AGREE MENT.
(B) THIS SECTION MAY NOT BE CONSTRUED TO PROV IDE IMMUNITY FROM
ACTIONS ALLEGING THA T A THIRD PARTY HAS :
(1) CAUSED PERSONAL INJUR Y AS A RESULT OF A N EGLIGENT,
RECKLESS, OR INTENTIONAL ACT ;
(2) FAILED TO GIVE EFFECT TO AN ADULT ’S DECISION MADE IN
ACCORDANCE WITH A VA LID DECISION–MAKING AGREEMENT ;
Ch. 631 2022 LAWS OF MARYLAND
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(3) FAILED TO PROVIDE INF ORMATION EITHER TO T HE ADULT OR A
SUPPORTER OF THE ADUL T THAT WOULD BE NECE SSARY FOR INFORMED C ONSENT;
OR
(4) OTHERWISE ACTED INCON SISTENTLY WITH APPLI CABLE LAW.
Article – Health – General
5–601.
(a) In this subtitle the following words have the meanings indicated.
(o) (1) “Incapable of making an informed decision” means the inability of an
adult patient to make an informed decision about the provision, withholding, or withdrawal
of a specific medical treatment or course of treatment because the patient is unable to
understand the nature, extent, or probable consequences of the proposed treatment or
course of treatment, is unable to make a rational evaluation of the burdens, risks, and
benefits of the treatment or course of treatment, or is unable to communicate a decision.
(2) For the purposes of this subtitle, a competent individual who is able to
communicate by means other than speech OR WITH OTHER SUPPOR T, INCLUDING
SUPPORTED DECISION M AKING IN ACCORDANCE WITH TITLE 18 OF THE ESTATES
AND TRUSTS ARTICLE, may not be considered incapable of making an informed decision.
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect
October 1, 2022.
Enacted under Article II, § 17(c) of the Maryland Constitution, May 29, 2022.