What is Self-Determination?
In October of 2013, Governor Edmund G. Brown Jr. signed into law the Self-Determination Program, which will provide consumers and their families with more freedom, control, and responsibility in choosing services and supports to help them meet objectives in their Individual Program Plan. The Department of Developmental Services is responsible for implementing the SDP and it will be phased-in over a 3-year period of time. Initially 2,500 participants will be selected by October 1, 2018. After the 3 year phase-in the SDP will be open to anyone who qualifies.
To be eligible an individual must meet the following eligibility requirements:
- Has a developmental disability and receives services from a regional center;
- Agrees to specific terms and conditions, which include but are not limited to, participation in an orientation for the Self-Determination Program, working with a Financial Management Services entity, and managing the Self-Determination Program services within an individual budget;
- An individual who lives in a licensed long-term health care facility (i.e., a Skilled Nursing Facility or Intermediate Care Facility) is not eligible to participate in the Self-Determination Program. If an individual living in one of these facilities expresses interest in the Self-Determination Program, through the person-centered planning process, he or she can request that the regional center begin making arrangements for their transition to the Self-Determination Program, provided that he or she is reasonably expected to transition to the community within 90 days.
The SDP gives people more control over selecting their services and supports. One of the ways this can be done is by giving participants (or their parents or legal representatives) a specific budget to purchase the services and supports that they need to make their person-centered plan work better for them. Participants may choose their services and pick which providers deliver those services. Participants are responsible for staying within their annual budget.
You can find out more information about the SDP here: https://www.dds.ca.gov/SDP/index.cfm
Recent legislation (Assembly Bill 1663), known as the Probate Conservatorship Reform and Supported Decision-Making Act, signed by Governor Newsom makes changes to probate conservatorship laws and creates a law that defines Supported Decision-Making in California. Changes to the conservatorship law include who may be a conservator, selection of a conservator, inclusion of least restrictive alternatives attempted in a conservatorship petition, and investigation and reporting duties of court investigators. The new law also establishes a conservatorship alternative program, defines supported decision-making, and creates a process for entering a supported decision-making agreement. The Arc of California wants to ensure you are fully aware of what this new law does and doesn’t change, and how it could impact you and your family.
Specific changes to the probate conservatorship law include:
- A requirement that courts consider a person’s abilities and capabilities with supports, not just without necessary support, when considering conservatorship.
- A requirement that new petitions for conservatorship will have to include alternatives to conservatorship that were tried, if any, and why they are not appropriate.
- A requirement that people who are conserved must be given written information about their rights, how to modify or terminate an existing conservatorship, and a hearing for termination if the person conserved requests termination (subject to court’s belief that good cause exists, and a hearing has not been held within the last 12 months).
- A requirement that the Department of Developmental Services (DDS) develop guidelines, by January 1, 2024, to address issues related to a conflict of interest when a Regional Center is the acting conservator for a person for whom they also provide services coordination.
Sec. 16, Division 11.5, Section 21000 – 21008, was added to the Welfare and Institutions Code to establish Supported Decision-Making which includes, but is not limited to, the following:
- Defines supported decision-making as an individualized process of supporting and accommodating an adult with a disability to enable them to make life decisions without impeding the self-determination of the adult.
- Requires the supported decision-making agreement be in writing, accessible to the person with a disability, and include at least:
– A list of areas with which the person requests support
-A list of areas with which the supporter agrees to provide support
-The supporter’s agreement to be bound by existing obligations and law
-Information advising the individual with a disability of their rights
-Information and copies of other substitute or supported decision-making documents
-Signature of the individual with a disability and signatures of two disinterested witnesses, or a notary
- Establishes that a supported decision-making agreement is effective unless terminated by the person with a disability, all supporters, the terms of the agreement, death or the person, or all supporters are no longer eligible to serve as a supporter – the agreement may be revoked orally or in writing
- Establishes that a supported can be one or more adults who meet the requirements consistent with Section 21002 of the Welfare and Institutions Code
- Requires a supporter to, among other things:
-Support and implement the direction, will, and preferences of the person with a disability
– Respect the values, beliefs, and preferences of the person with a disability
-Act within the scope of the agreement
-Act honestly, diligently, and in good faith
Finally, it is important to understand what the Probate Conservatorship Reform and Supported Decision-Making Act does NOT change. It does not eliminate existing conservatorships but rather it provides a way for a conservatee to request a change or termination of an existing conservatorship. Least restrictive alternatives to conservatorship must be considered for current and proposed conservatees, however, the law does not require a conservatee to “fail first” in a less restrictive alternative before conservatorship can be granted by the court. The distinction here is important because the new law does require a petition for conservatorship to include if a less restrictive alternative was attempted, and if so, why it did not work. The law becomes effective January 1, 2023.