Tennessee’s Supported Decision Making Legislation: What It Does (and Does Not) Do
By Lauren Pearcy
About the Author
Lauren Pearcy has worked as the Tennessee Council’s director of public policy since 2016. Before joining the Council, she most recently worked at the Bureau of TennCare in the Long Term Services and Supports Division. Prior to moving to Tennessee, Lauren worked as a senior policy analyst for the National Governors Association in Washington,D.C.,for six years. While there, Lauren helped produce the landmark publication, A Better Bottom Line: Employing People with Disabilities. Lauren is an honors graduate with a master’s degree in Public Policy from George Washington Universityand a bachelor’s degree from the University of California, Davis.
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Tennessee, like several other states, recently enacted legislation to advance an emerging best practice in the field of disability: supported decision making.
On April 2, 2018, Gov. Bill Haslam signed Tennessee’s Supported Decision Making legislation, in an effort to help people with disabilities retain as many decision-making rights as possible.The Tennessee Disability Policy Alliance worked directly with legislative sponsors, Sen. Becky Massey, R-Knoxville, and Rep. Mike Carter, R-Ooltewah, on this bill and helped educate legislators about the legislation’s impact on those with disabilities. The Tennessee Disability Policy Alliance is a collaboration among the Tennessee Council on Developmental Disabilities, The Arc Tennessee, Disability Rights Tennessee, and the Tennessee Statewide Independent Living Council.
Background on Conservatorship Laws and the Reason for New Legislation
Conservatorship is a legal proceeding in which a court removes specific decision-making powers from a person who is 18 years of age or older, often individuals with disabilities or those who are elderly. The court then selects a conservator, a person appointed by a judge to make decisions for and act in the best interest of the person with a disability.
In looking at national conservatorship trends, a nationally recognized expert in this field, Jonathan Martinis, of the Burton Blatt Institute at Syracuse University, has found:
- The number of guardianships/conservatorships in the United States has tripled since 1995
- Research indicates that the most common new “ward” is an 18-year-old with an intellectual disability
- The leading source referring families to seek guardianship/conservatorship is schools
Tennessee law has, for several years, stated:
“The court has an affirmative duty to ascertain and impose the least restrictive alternatives upon the person with a disability that are consistent with adequate protection of the person with a disability and the property of the person with a disability [emphasis added].” TN Code 34-1-127.
Many states have this type of “least restrictive” language in their conservatorship laws, reflecting an effort to ensure that before a person’s decision-making rights can be taken away through a conservatorship, the court must deem conservatorship to be the “least restrictive” way to support the person. (Tennessee uses the term “conservatorship” to refer to guardianship of individuals age 18 or older. Many other states use the term “guardianship” to mean the same thing.)
However, courts and families have had little information about what was meant by “least restrictive alternatives.” Further, a national report recently found that “Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements,” and “Conservatorship is often imposed when not warranted [because of] erroneous assumptions that people with disabilities lack capability to make autonomous decisions.” Indeed, members of the Disability Policy Alliance have worked with families who felt they did not know about alternatives to conservatorship and, in some cases, felt pressure to petition for conservatorship for their loved one without really understanding the pros and cons.
Tennessee’s New Law and Efforts to Supported Decision Making
New legislation, passed by the Tennessee General Assembly this spring and signed by Gov. Haslam on April 2, adds to existing law:
“Least restrictive alternatives” means techniques and processes that preserve as many decision-making rights as possible for the person with a disability.” TN Code 34-1-101
During the 110thGeneral Assembly, which occurred between January 2016 and April 2018, Tennessee took a step forward in strengthening our law by adding a definition of “least restrictive alternative,” listed above. The Disability Policy Alliance worked with legislators on this bill because we believe that Tennesseans with disabilities are better served if all stakeholders – individuals, families, courts – have a more consistent understanding about the spirit of this requirement.
The new law DOES:
- Clarify that “least restrictive alternative,” required by current law before conservatorship is imposed, means using techniques that protect decision-making rights. This is important to ensure that people with disabilities are supported to make as many of their own decisions as possible, rather than by techniques that allow others to make decisions FOR them.
- Build upon what is already in law, reinforcing the goals of maximizing independence for people with disabilities and minimizing the risk of abuse, neglect, and exploitation.
The new law DOES NOT:
- Create a new form or agreement for people to use for implementing supported decision making.
- Impose any new restrictions on courts or change the way the conservatorship process is supposed to be working currently.
The Disability Policy Alliance recognizes that implementing the spirit of the law requires all stakeholders to understand more than the legal definitions – we need to understand: what areother alternatives, and how do we use them? Thus, the Disability Policy Alliance has delivered more than 50 trainings to Tennessee stakeholders ranging from individuals and families to school personnel to lawyers. If you are interested in learning more about this topic and how to use it, we can meet with you one-on-one or deliver a group training. Contact the Council on Developmental Disabilities at: Tnddc@tn.gov.
This article also appears on DD Council’s website: https://www.tn.gov/cdd/public-policy/supported-decision-making/tn-supported-decision-making-legislation.html