Welcome to CPA at Law, helping individuals and small businesses plan for the future and keep what they have.

This is the personal blog of Sterling Olander, a Certified Public Accountant and Utah-licensed attorney. For over thirteen years, I have assisted clients with estate planning and administration, tax mitigation, tax controversies, small business planning, asset protection, and nonprofit law.

I write about any legal, tax, or technological information that I find interesting or useful in serving my clients. All ideas expressed herein are my own and don't constitute legal or tax advice.

Supported Decision Making Agreements

An emerging phrase in the estates and trusts world is that of "supported decision making." The concept of supported decision making is exactly as unremarkable as it sounds and is simply the idea of individuals looking to help from others in making a decision. Hiring a transactional attorney is to seek supported decision making, and many other professional advisors could also qualify as providing decision support.

However, when used in the context of helping individuals with disabilities, supported decision making represents a paradigm shift from protecting such individuals from poor decisions by inserting a surrogate decision maker to act for them to empowering such individuals to make their own decisions, with support from others. See Nina A. Kohn, Legislating Supported Decision-Making, 58 Harvard Journal on Legislation 313 (2021). Accordingly, one specific objective of supported decision making arrangements is to avoid the need for a guardianship.

Utah has introduced legislation specifying the requirements for supported decision making agreements, H.B. 510. Under the law, if passed, such an agreement must, among other things, be in writing, designate a "supporter," describe the principal's rights and how the principal uses supported decision-making to make decisions, define the responsibilities of each supporter, and be notarized. It must also "describe how any perceived or actual conflict of interest between a supporter and the principal will be mitigated."

Supported decision making agreements are nothing more than contracts that have been and will be executed whether or not H.B. 510 or comparable laws in other states are passed. However, the key benefit of H.B. 510 appears to be codifing what constitutes a supported decision making agreement and protecting third parties who rely in good faith on such agreements. It seems that there could be significant overlap in the utility and coverage of supported decision making agreements and limited powers of attorney, but supported decision making agreement legislation may fill coverage gaps and benefit individuals with disabilities.