Professor Nina Kohn: Realizing Supported Decision-Making: What It Does—and Does Not—Require
"Realizing Supported Decision-Making: What It Does—and Does Not—Require." The American Journal of Bioethics, Vol. 21, Issue 11 (October 2021).
Supported decision-making, a process by which people who might otherwise be unable to make their own decisions do so with help from other people, is rapidly gaining attention as an alternative to guardianship and other forms of surrogate decision-making for people with cognitive disabilities.
After exploring the potential benefits of supported decision-making for individuals with dynamic cognitive impairments, Peterson et al. (2021) argue that three steps are necessary to realize that potential: (1) identifying the domains where support is needed and desired by a decision-maker, (2) identifying the kinds of support needed and desired by the decision-maker, and (3) establishing a formal supported decision-making agreement (Peterson et al. 2021).
Professor Nina Kohn's commentary pushes back on this third step. It explains why a formal agreement, while often advantageous, is not essential to realizing supported decision-making. It then addresses a question left open by Peterson et al.: whether formal agreements, if executed, should have independent legal effect. After showing why these agreements should not have independent legal effect, the commentary suggests alternative legal interventions to help realize the potential of supported decision-making.