Supported Decision-Making in New York

SDM is when an adult with a disability chooses trusted supporters (like family, friends, or other caregivers) to help them understand, weigh, and communicate their decisions.

SDM can be informal or formal.

• Informal SDM happens when the adult with a disability naturally turns to trusted people for help without any legal document. Third parties, like schools, doctors, and banks, do not have to recognize informal supporters.

• Formal SDM occurs when the adult with a disability signs a Supported Decision-Making Agreement (SDM Agreement) that names specific supporters and defines the specific areas that the supporters will assist in the disabled individual’s life.

A SDM Agreement is a formal, legally recognized document under New York law. An adult with a disability, age 18 or older, who is not under guardianship and who understands the agreement, may create a SDM Agreement.

Unlike informal SDM, which is based only on personal support without any legal document, a SDM Agreement is enforceable. Because it is formal, schools, doctors, banks, and other service providers must accept and honor the supporters named in the agreement, as long as the adult with a disability is present and wants the supporter to help. With informal support, these organizations may or may not agree to work with the supporters.

Examples of how a supporter can assist by using a SDM Agreement:

• Review medical treatment options and decide on care
• Attend important appointments to take notes and help the person with a disability remember

and discuss their options

• Assist in preparing a Life Plan for OPWDD supports and services
• Gather and present information to assist in decisions about housing, relationships, employment, and vocational services

In guardianship, a court gives another person the legal authority to make some or many decisions for the adult with a disability. This means that the person who has a guardian loses the legal right to make those decisions. With a SDM Agreement:

• The adult with a disability chooses their supporters and keeps all of their legal decision-making rights.
• Supporters help the adult with a disability understand and communicate decisions, but do not make decisions for them.
• A SDM Agreement has legal force. Third parties (such as doctors, schools, banks, and service providers) must recognize and honor the supporters named in the SDM Agreement.
• A sample SDM Agreement template developed by ACLU/Quality Trust can be found here: https://supporteddecisionmaking.org/wp-content/uploads/2022/10/aclu-qt-sdm-agreement.pdf.

No. Court involvement is not required. A SDM Agreement is completed outside of court. The adult with a disability and their supporters work with a trained facilitator, who guides the process and helps draft the SDM Agreement.

New York’s Supported Decision-Making law (Article 82) and the OPWDD regulations help explain that law (14 NYCRR § 635.5) and set clear rules about who can be a supporter in a SDM Agreement.

Supporters can include:	Supporters cannot include:
Family members or friends Mentors, coaches, or community members Teachers or school staff Direct support staff (not supervisors)	Agency directors or supervisors Anyone with a history of abuse/exploitation Anyone who may gain financially

A facilitator is a trained, neutral professional who helps an adult with a disability go through the SDM process and create a SDM Agreement.

A facilitator:

• Helps the adult with a disability identify the areas where they want support
• Guides them in choosing their own supporters
• Helps the adult understand how decisions are made and how support can work
• Makes sure the SDM Agreement reflects what the adult with a disability wants, not what others want
• Ensures the agreement is completed correctly so that it can be honored by third parties

Only people trained and certified by OPWDD or an OPWDD-approved organization can serve as SDM facilitators.

Yes! Under New York law, the adult with a disability can change or end the SDM Agreement at any time for any reason. Only the adult with a disability can change or end the agreement. No court involvement is required.

Yes, if the SDM Agreement was created with an OPWDD-approved facilitator, they have to recognize and honor it under New York law.

No. A SDM Agreement covers only the areas the adult with a disability chooses. They can pick just a few areas like health care, school, or housing, or they can choose more. It is flexible and based on what the adult with a disability wants. A SDM Agreement does not replace other alternatives that may still be needed for certain situations. The adult with a disability can use SDM together with:

• A Health Care Proxy, which names someone to make medical decisions for an adult with a disability if a doctor determines that they are incapacitated and unable to make medical decisions. An individual does not have to be disabled to execute a Health Care Proxy.
• A Power of Attorney, which gives someone legal authority to help with financial matters. An individual does not have to be disabled to execute a Power of Attorney.
• A Representative Payee, who manages the disabled person’s SSI or SSDI benefits.