Legal Updates


SUPPORTED DECISION-MAKING AGREEMENTS FOR ADULT STUDENTS WITH DISABILITIES

November 19, 2019

In April 2018, the Wisconsin Governor signed into law 2017 Wisconsin Act 346, which established supported decision-making agreements between adult students with disabilities and “supporters” of their choosing to assist the students with life decisions.  The Department of Public Instruction (DPI) recently issued a special education bulletin[1] addressing supported decision-making agreements and how they impact school districts. 

A supported decision-making agreement is a less burdensome alternative to a judicial guardianship.  Any adult with a functional impairment (defined as a physical, developmental, or mental condition that substantially limits one or more life activities) can enter into such agreements including students who have reached the age of majority.  Such an agreement must be signed voluntarily without coercion by the adult with a disability and the supporter.  A valid supported decision-making agreement also must be signed by two adult witnesses or a notary public.  Wis. Stat. § 52.18(1).  The adult with a disability may terminate the agreement at any time.

Supported decision-making agreements can cover a variety of topics including, but not limited to, physical and mental health, financial, educational, and employment decisions.  Each supported decision-making agreement must identify the types of decisions subject to support and the types of information/records the supporter may help the adult with a disability obtain or access.  

The role of the supporter is to assist the adult with a disability in accessing necessary information, understanding the options, responsibilities, and consequences of a decision, and communicating the decision to the appropriate person.  The adult student with a disability is responsible for making all final decisions; the supporter cannot make decisions on their behalf or act as a surrogate. 

For school districts, supported decision-making agreements are an important consideration when addressing the transfer of a student’s rights at the age of majority.  School districts now must provide information on supported decision-making agreements and other alternatives to judicial guardianship to students with disabilities and their parents anytime the school district discusses the transfer of rights at the age of majority with the student and parent(s).  Wis. Stat. § 115.807(4).  To assist school districts in this area, DPI updated its model forms regarding notification of transfer of rights to include information on supported decision-making agreements.

In many situations, adult students with disabilities will select a parent as their supporter under a supported decision-making agreement.  However, DPI emphasizes that adult students with disabilities may choose others including, but not limited to, an adult friend, a teacher, a service provider, an administrator, or another person with expertise in a particular area.  Individuals who agree to act as a supporter are immune from civil liability provided they perform their duties in good faith and in accordance with the supported decision-making agreement.   

School districts that receive a properly executed supported decision-making agreement must rely on the agreement as a valid expression of the adult student’s wishes.  The school district should retain a copy of the agreement with the student’s educational records and, if authorized by the agreement, give the identified supporter access to the adult student’s educational records to assist with educational decisions.  The adult student’s supporter also is entitled to participate in individualized education program (IEP) team meetings, if requested by the adult student.

When a school district receives a supported decision-making agreement, it should verify that the adult student with a disability and supporter properly executed the agreement and that two witnesses or a notary public signed the agreement.  The school district should also analyze the types of decisions for which the adult student is requesting support and the information he or she is authorizing the supporter to receive.  A school district is immune from liability for disclosing confidential information identified in the supported decision-making agreement to a supporter unless it knows the adult student revoked the agreement. 

School districts should also clarify an adult student’s preference regarding parent access to pupil records if someone other than a parent is selected to support the adult student’s educational decisions.  Under Wisconsin’s Pupil Records law, an adult student’s parents may have access pupil records without consent if the student qualifies as a dependent for federal tax purposes.  Wis. Stat. 118.125(2)(k).  However, an adult student may prevent disclosure to his or her parents by notifying the school district, in writing, that the school district may not disclose pupil records to his or her parents.     

Supported decision-making agreements are relatively new under Wisconsin law.  School districts should expect that they will be more prevalent as students, parents, and advocacy groups become more familiar with them and their usefulness to assist adult students with disabilities in making educational decisions and transitioning to post-secondary activities. 

For question regarding this article or other special education topics, please contact the author, Attorney Chad P. Wade (email: cwade@strangpatteson.com; telephone: 833-654-1176), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

[1] Special Education Bulletin 19.01 Supported Decision-Making Agreements (Oct. 2019) is available at https://dpi.wi.gov/sped/laws-procedures-bulletins/bulletins/19-01.

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