Individuals accustomed to working with surrogate decision makers such as activated power of attorney agents and guardians should prepare for an additional – and different – individual at the table: a supporter.
The Supporter’s Role
Enacted in April 2018, 2017 Wisconsin ACT 345 provided for supported decision-making agreements.
Leah Ruedinger, Mitchell Hamline 2013, has worked on the payor and provider side of health care for the past six years.
As a party to the supported decision-making agreement, the supporter provides an opportunity for an adult with a functional impairment (the adult) to have assistance in understanding the options, responsibilities, and consequences of the adult’s life decisions – such as where to live and with whom, where to work, what type of services, support, and medical care the adult wants to receive, all without impeding the self-determination of the adult.1
A supported decision-making agreement and supporter are a less intrusive approach to assisting adults with functional impairments, and are encouraged for use by courts before guardianship.
What is Functional Impairment?
Functional impairment, as defined in the statute, means an adult with a physical, developmental, or mental condition that substantially limits an individual’s major life activities.
Major life activities include, but are not limited to, the capacity for independent living, self-direction, self-care, mobility, and communication.2
The supported decision-making agreement is valid if it is voluntarily made in writing, signed and dated by the supporter, the adult, and two witnesses or a notary public, and in substantially the same format as included within the statute.3
A supporter need only be at least 18 years old and willing to enter into the agreement as the adult’s supporter. Family members are eligible supporters. Wisconsin Department of Health Services created a fillable supported decision-making agreement.
Terms and Termination
The agreement is in effect immediately and until terminated by the adult or supporter. The adult may revoke the supported decision-making agreement at any time by
destroying it or directing another in their presence to destroy it;
executing a written statement, signed and dated, expressing the intent to revoke the supported decision-making agreement; or
verbally expressing the intent to revoke the supported decision-making agreement, in the presence of two witnesses.4
Unless noted otherwise, the supporter may terminate by giving notice to the adult.5
Termination also occurs if county adult protective services substantiates an allegation of neglect or abuse by the supporter, the supporter is found criminally liable for neglect or abuse, or if there is a restraining order against the supporter.6
What Can a Supporter Do?
The supporter is a willing adult who assists the adult with functional disabilities with accessing, collecting, obtaining, and understanding information relevant to a given life decision, including medical, psychological, financial, educational, or treatment records and assists in communicating the adult’s decisions to the appropriate person.7
The supporter may only act within the scope of the agreement and only has the authority granted therein.8
The supporter’s authorization consists only of information relevant to a decision authorized under the supported decision-making agreement.9 A supporter may assist with accessing or obtaining information that will help the adult make health care decisions, but may only access or obtain patient health care records if the adult has signed a release.
Regardless of the supporter’s involvement with accessing or obtaining information, the adult has unrestricted access to their personal information.10
A crucial difference between a supporter and an activated power of attorney agent or guardian, is that a supporter isnot a surrogate decision maker. The supporter for the adult does not have the authority to make legal decisions for the adult, including signing legal documents or entering into a legal agreement.11
The supporter helps the adult make their own decisions, by providing the necessary tools and resources, unlike an activated power of attorney agent or guardian who makes the decision on behalf of the individual.
Impact and Immunity
Unless a person has reason to believe the supporter is abusing, neglecting, unduly influencing, or exploiting the adult, a person with a supported decision-making agreement shall rely on the agreement.12
A person, acting in good faith and relying on a supported decision-making agreement, is not subject to criminal or civil liability, and has not engaged in professional misconduct for an act or omission performed in connection with the supported decision-making agreement.13
Supporters have immunity from civil liability for acts or omissions in performing valid supported decision-making duties if they acted in good faith, in conformance with the agreement, and as an ordinarily prudent person would for their own affairs.14
Health care providers, providing care to a consenting adult utilizing a valid supported decision−making agreement to assist with their decision-making process, are immune from actions alleging the adult lacked capacity to provide informed consent.
Additionally, health care providers acting consistently with the authority given to a supporter are immune from any action alleging the agreement was invalid. A provider loses immunity, if the provider had knowledge or notice the adult had revoked the supporter’s authorization, the agreement was invalid, or the supporter had committed abuse, neglect, or financial exploitation against the adult.15
Guidance should be provided to health care workers on the applicability and scope of the supporter and supported decision-making agreement, most notably highlighting that the supporter is not a surrogate decision maker and the adult can make independent decisions without utilizing their supporter. Sample agreements should be provided, as needed.
Wisconsin agencies, including Disability Rights of Wisconsin, The Arc, the Wisconsin Board for People with Developmental Disabilities, and GWAAR have provided further literature and resources online for supporters, the adults, and those working closely with supported decision-making agreements.
1 Wis. Stat. § 52.01 (6).
2 Wis. Stat. § 52.01 (2).
3 Wis. Stat. § 52.20.
4 Wis. Stat. § 52. 14(3).
5 Wis. Stat. § 52.14 (4).
6 Wis. Stat. § 52.14 (2).
7 Wis. Stat. § 52.10 (1).
8 Wis. Stat. § 52.12.
9 Wis. Stat. § 52. 16.
10 Wis. Stat. § 52.16.
11 Wis. Stat. § 52.10 (2).
12 Wis. Stat. § 52.30 (1).
13 Wis. Stat. § 52.30 (2).
14 Wis. Stat. § 52.30 (8).
15 Wis. Stat. § 52.30 (3), (4).