Public Interest Law Section Blog: Tip of the Month: Chapter 52: The New Supported Decision-making in Wisconsin:

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  • Public Interest Law Section Blog
    April
    03
    2019

    Tip of the Month:
    Chapter 52: The New Supported Decision-making in Wisconsin

    Amy R. Devine

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    In this Tip of the Month installment, Amy Devine explains supported decision-making and the provisions for supported decision-making in Wis. Stat. chapter 52.

    Although as a concept, supported decision-making has been utilized for many years, laws giving someone the right to officially designate someone as a “supporter” are relatively new in the United States. And in April 2018, Wisconsin became one of the first states to pass such legislation, as the new Wis. Stat. chapter 52.

    Amy Devine com amy hsbelderlaw Amy Devine, City University of New York 2006, is an attorney with Haskins, Short, and Brindley, LLC, in Monona.

    Supported Decision-making in Wisconsin

    Supported decision-making is a way for a person with a functional impairment to be able to formally choose someone else to help them make decisions. The supporter can help the individual gather information, review and process information, and help understand options, responsibilities, and consequences of decisions. The supporter can also help communicate the individual's decisions to others.

    The supporter does not have authority to make decisions for the individual with this agreement, and cannot sign legal documents.

    A supported decision-making agreement is completely voluntary, and the agreement cannot be used as evidence that someone does not have capacity.

    The supported decision-making agreement is one tool for someone with a disability or functional impairment to navigate decisions involving health, education, finances, employment, benefits, and housing. The individual may still need to sign other releases to give the supporter access to protected information, i.e., health or education records.

    Anyone who is at least 18 years old and has a functional impairment can make a supported decision-making agreement.

    Definition of ‘Functional Impairment’

    Under Wis. Stat. section 52.01(2), a “functional impairment” is defined as:

    (a) A physical, developmental, or mental condition that substantially limits one or more of an individual’s major life activities, including any of the following:
    1. Capacity for independent living.
    2. Self-direction.
    3. Self-care.
    4. Mobility.
    5. Communication.
    6. Learning.
    (b) Impairment, defined under Wis. Stat. section 54.01(14) as “a developmental disability, serious and persistent mental illness, degenerative brain disorder, or other like incapacities.”
    (c) Other like incapacities, defined under Wis. Stat. section 54.01(22) as “conditions incurred at any age that are the result of accident, organic brain damage, mental or physical disability, or continued consumption or absorption of substances, and that produce a condition that substantially impairs an individual from providing for his or her own care or custody.”

    No medical documentation or verification is required in order for an individual to have a supported decision-making agreement.

    Designating a Supporter

    Use the Wisconsin Department of Health Services (DHS) Supported Decision-making Agreement form, found on the DHS website.

    The form must be signed in front of two witnesses (who are both 18 years old) OR in front of a notary public. An individual can have as many supporters as needed, but there must be a separate agreement for each supporter.

    Duties of a Designated Supporter

    A designated supporter can do what the individual with the functional impairment gives them the right to do. They can go to meetings, help gather information, help ask questions with different professionals, review documents, and meet with the individual to help process and evaluate information. A designated supporter cannot make decisions with this agreement.

    Terminating a Supported Decision-making Agreement

    An individual can decide at any time they do not want someone to act as a supporter anymore. The agreement is terminated by ripping it up, marking it up, or otherwise destroying the agreement. An individual can write down that they do not want the supporter to act in that role anymore, signing and dating the statement. They can also tell the supporter in front of 2 witnesses.

    Additional Resources:

    Find additional information with these agencies:

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