Your daughter turns 18 and heads to college. You help her review financial aid paperwork, plan her class schedule, and arrange healthcare appointments. A week later, you call her university about her course load, and they refuse to speak with you. You contact her doctor’s office to refill a prescription, and they say they cannot share information. The support you have always provided suddenly feels impossible to give. For many families with adult children who have disabilities, this scenario is painfully familiar.
When your child turns 18, the law treats them as fully independent, regardless of whether they need ongoing support. For years, guardianship seemed like the only legal solution, but it strips away fundamental rights and places decision-making power in someone else’s hands. That changed on July 1, 2024, when Florida’s new supported decision making law took effect. This legislation offers an alternative that allows adults with disabilities to retain their rights while receiving help. If you have been told that guardianship is your only option, this new law might change everything.
What is Supported Decision Making?
Supported decision making is something most people already use in daily life. When making big choices, people often talk with family, professionals, or friends before deciding. They gather information, weigh options, and choose what feels right.
This same process applies when others help explain options without taking away your right to decide. A mechanic or doctor may give guidance, but you still make the final choice. Supported decision making follows this same idea.
Under Florida law, adults with disabilities can formalize this process through a Supported Decision-Making Agreement. They choose trusted supporters to help them understand information, consider options, and communicate decisions. The individual always keeps the final say.
House Bill 73, effective July 1, 2024, amended Florida Statute 393.12 and created Florida Statute 709.2209. Courts must now consider a person’s ability to make decisions with support before appointing a guardian. Petitions must also evaluate less restrictive alternatives like supported decision making before removing rights.
How Does a Supported Decision-Making Agreement Work?
A Supported Decision-Making Agreement is a legal document where an adult (the principal) authorizes trusted supporters (agents) to help make decisions. Under Florida law, this is a separate legal document that allows supporters to assist without decision-making authority that differs from a traditional durable power of attorney.
In a traditional power of attorney, agents can make decisions and act on the principal’s behalf. In a Supported Decision-Making Agreement, agents cannot make decisions or act on the principal’s behalf. Their role is limited to:
- Obtaining information on behalf of the principal, including protected health information under HIPAA, educational records under FERPA, and mental health or substance abuse treatment records
- Helping the principal communicate with third parties by conveying the principal’s decisions to others
Supporters can attend medical appointments, meetings with school officials, and discussions with financial advisors. However, final decisions always rest with the principal. A supporter might help explain treatment options, but only the principal can consent to care.
The principal can choose different supporters for different life areas and can change or revoke the agreement anytime.
How Does This Differ from Guardianship?
The difference comes down to who holds the power. In guardianship, a court determines that a person is incapacitated and transfers their rights to a guardian who makes decisions for them, even if they disagree. A person under full guardianship may lose the right to choose where they live, manage money, make medical decisions, get married, vote, or decide who they spend time with.
Guardian advocacy under Florida Statute 393.12 for people with developmental disabilities operates similarly. While it does not require formal incapacity adjudication, it transfers decision-making authority to the guardian advocate, who has the same powers, duties, and responsibilities as a full guardian within delegated areas.
Supported decision making transfers no rights. The person retains full legal authority over their life. They choose supporters, decide what areas need help, and can change the agreement anytime. Supporters cannot override choices or make decisions on their behalf.
Guardianship requires court involvement, attorney fees, medical exams, and ongoing supervision. Once established, it is difficult to terminate. A Supported Decision-Making Agreement requires no court approval, no attorney, and can be created or revoked easily. There are no filing fees, medical exams, or court oversight.
Guardianship says, “You cannot make decisions, so someone else will make them for you.” Supported decision making says, “You can make decisions, and we will help you do it.”
When Should You Consider Supported Decision Making?
Supported decision making works well for adults who can express their preferences with help. This includes people with intellectual disabilities, autism, mental health conditions, or age-related cognitive changes. It is often useful when someone turns 18 and needs help understanding medical, legal, or financial information.
Full guardianship may be necessary if a person cannot communicate choices or understand the consequences of decisions. It may also apply if they are at serious risk of harm or exploitation. The key question is whether they can decide with support or need someone to decide for them..
What Are the Benefits of Supported Decision Making?
The most significant benefit is preserving autonomy and dignity. Adults using supported decision making keep control over their lives and can continue to grow and develop skills. Research shows people with greater self-determination are happier, more independent, and less likely to face abuse.
Supported decision making is far less expensive than guardianship. Creating an agreement typically costs only notary fees or modest attorney fees. There are no court filing fees, required medical evaluations, or annual reporting requirements. Guardianship can cost thousands initially and requires ongoing annual accountings and filings.
Agreements can be tailored to individual needs and adjusted over time. As skills develop, support can decrease. If needs change, areas can be added. The person maintains freedom to make choices supporters might disagree with, as long as choices are not causing serious harm. For families, this reduces conflict and allows collaborative support that respects the person’s voice.
How Do You Create a Supported Decision-Making Agreement in Florida?
Creating a Supported Decision-Making Agreement requires specific steps to be legally valid. These steps help make sure the agreement is accepted and followed.
- The agreement must be in writing and signed by the principal. It must also be signed by either two witnesses or a notary.
- Witnesses and notaries must be at least 18 years old. They cannot be named as supporters.
- Supporters can be any trusted adult age 18 or older. This may include family, friends, neighbors, or community members.
- No background check or special training is required. The choice is based on trust.
- The agreement should identify the principal and supporters. It should also list areas where support is needed, such as healthcare, housing, or finances.
- It should explain how supporters will help and what they are not allowed to do. Required signatures and proper witnessing or notarization must be included.
- An attorney is not required but may help ensure the agreement follows Florida law. This can also help with acceptance by providers.
- Copies should be given to doctors, hospitals, schools, or agencies working with the supporters. Some organizations may also require HIPAA authorizations or other releases.
- The principal can change or revoke the agreement at any time.
Key Takeaways
- Florida’s supported decision making law (effective July 1, 2024) provides a legal alternative to guardianship, allowing adults to retain rights while receiving decision-making support.
- Supporters can obtain information and help communicate the principal’s decisions. They cannot make decisions or act on the principal’s behalf.
- Florida Statute 393.12 requires courts to consider whether people can exercise rights with assistance before appointing guardian advocates. Courts may only delegate tasks the person cannot handle even with support.
- Creating an agreement requires no court approval or attorney. It must be written and either witnessed by two adults or notarized.
- Agreements can be modified or revoked anytime by the principal, offering flexibility guardianship does not provide.
Frequently Asked Questions
Can someone who is already under guardianship use supported decision making?
Yes. People under guardianship or guardian advocacy can create agreements. If it involves a right removed by guardianship, the guardian must approve. If it involves a retained right, no guardian approval is needed.
Will using supported decision making affect my benefits?
No. Using an agreement should not affect eligibility for Social Security, SSI, Medicaid, or other benefits. The person retains full legal capacity. If you have questions, consult with an attorney who handles benefits planning.
What if the person makes a decision I think is unsafe?
The person retains the right to make choices, even if supporters disagree. However, if decisions put them or others in serious danger and they cannot appreciate the risk even with support, guardianship might be more appropriate.
Do healthcare providers have to accept a Supported Decision-Making Agreement?
While the law authorizes agreements, individual providers may have their own documentation requirements. Provide copies in advance and work with organizations to ensure they will honor it. Many require HIPAA authorizations or other forms.
How is this different from a healthcare surrogate or power of attorney?
A healthcare surrogate or power of attorney allows someone to make decisions on your behalf if you become unable to do so. A Supported Decision-Making Agreement allows someone to help you make your own decisions while you retain capacity. The supporter assists but does not decide for you.
Is supported decision making only for people with developmental disabilities?
No. While the law has particular significance for people with developmental disabilities, supported decision making benefits anyone who wants or needs decision-making assistance, including people with intellectual disabilities, mental health conditions, learning disabilities, brain injuries, and older adults experiencing cognitive changes.
Get Guidance on Supported Decision Making and Guardianship Alternatives
Florida’s new supported decision making law represents a significant shift in how we approach capacity, autonomy, and the support people need to live independently. For many families, it offers a path that respects dignity while providing meaningful help.
At Elder Needs Law, PLLC, we help families throughout the Aventura area determine whether supported decision making, guardianship, or another alternative fits their situation. We create Supported Decision-Making Agreements that meet Florida’s legal requirements and are tailored to your needs. We also help you analyze how supported decision making fits into your broader estate planning, benefits planning, and long-term care planning.
If you have been told that guardianship is your only option, or if you want to plan ahead to avoid guardianship in the future, reach out to us. Making informed decisions about decision-making support can preserve autonomy, maintain family relationships, and ensure the best quality of life for your loved ones. Contact us today to schedule a consultation and find out how Florida’s new law can help your family.
