Supported Decision-Making: A Viable Alternative to Guardianship?

Nina A. Kohn
Syracuse University – College of Law

Jeremy A. Blumenthal
Syracuse University – College of Law

Amy T. Campbell
State University of New York – Upstate Medical University

April 29, 2013

Penn State Law Review, Vol. 117, No. 4, 2013

Abstract:

The law has traditionally responded to cognitive disability by authorizing surrogate decision-makers to make decisions on behalf of disabled individuals. However, supported decision-making, an alternative paradigm for addressing cognitive disability, is rapidly gaining political support. According to its proponents, supported decision-making empowers individuals with cognitive challenges by ensuring that they are the ultimate decision-maker but are provided support from one or more others, giving them the assistance they need to make decisions for themselves. This article describes supported decision-making and its normative appeal. It then provides a descriptive account of how supported decision-making works based on the empirical literature on supported decision-making as well as that on shared decision-making, a related model used in medical contexts. The article shows how employing supported decision-making in lieu of guardianship, or integrating it into the guardianship system, has the potential to promote the self-determination of persons with intellectual and cognitive disabilities consistent with international and national legal norms. However, we find that, despite much rhetoric touting its advantages, little is known about how supported decision-making processes operate or about the outcomes of those processes. Further research is necessary to design and develop effective supported decision-making systems. We therefore propose a series of research questions to help inform policy choices surrounding supported decision-making.

Supported Decision-Making- A Viable Alternative to Guardianship?

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