COLUMBUS, Ohio – For Ohio’s adults with developmental disabilities, navigating life’s significant decisions has long presented a stark dichotomy: either retain full legal control over their lives or, if deemed legally incompetent by a court, face the appointment of a guardian empowered to make crucial choices on their behalf. This traditional binary, critics argue, often fails to acknowledge the spectrum of individual capabilities and support needs.
n
A groundbreaking piece of legislation, Senate Bill 35 (SB 35), is now moving through the Ohio legislature, aiming to forge a vital middle ground. This bill seeks to formally recognize "supported decision-making" (SDM), a framework that would allow adults with developmental disabilities to designate trusted individuals to assist them in understanding information, weighing options, and communicating their preferences – all without surrendering their fundamental right to make their own decisions.
n
The proposal has ignited a crucial statewide conversation, drawing broad support from disability advocates, families, and proponents of self-determination, while also raising pointed questions from legal professionals and protection agencies about safeguarding vulnerable individuals from potential exploitation in a system designed to operate largely outside traditional judicial oversight. At its heart, SB 35 embodies a national and international shift towards empowering individuals with disabilities, challenging historical paternalistic approaches, and championing their right to self-direct their lives with appropriate, chosen support.
n
The Legislative Journey: From Senate Passage to House Scrutiny
n
The journey of Senate Bill 35 began with bipartisan sponsorship from Republican Senators Jerry Cirino of Kirtland and Michele Reynolds of Canal Winchester. The bill garnered unanimous approval in the Ohio Senate last year, a testament to the compelling need for reform in the state’s approach to legal capacity and support for individuals with developmental disabilities. This strong initial endorsement underscored a legislative consensus on the principle of promoting greater autonomy.
n
Following its successful passage in the Senate, SB 35 advanced to the Ohio House of Representatives, where it is currently under rigorous review by the House Children and Human Services Committee. The committee has held multiple hearings, providing a platform for a diverse array of stakeholders to present their perspectives, voice their support, and articulate their concerns. These hearings have been instrumental in refining the understanding of the bill’s practical implications and identifying areas that may require further clarification or amendment. The unanimous Senate vote highlighted the widespread recognition of the need for an alternative to guardianship, but the House committee hearings have exposed the complexities and nuances involved in crafting legislation that balances autonomy with robust protections.
n
A National Paradigm Shift: Supported Decision-Making on the Rise
n
The concept of supported decision-making is not novel, either in practice or in legislative efforts across the United States. For decades, individuals with developmental disabilities have informally relied on parents, friends, and professionals for advice and assistance in navigating complex decisions. SB 35 seeks to formalize this natural human tendency, providing it with a recognized legal structure within Ohio state law.
n
Globally, the push for supported decision-making is rooted in fundamental human rights principles. The United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), ratified by many nations (though not yet by the U.S. Senate), explicitly calls for states to recognize the legal capacity of persons with disabilities on an equal basis with others, and to provide access to the support they may require to exercise that capacity. Article 12 of the CRPD is particularly influential, advocating for a shift away from "substituted decision-making" (like guardianship) towards "supported decision-making" where individuals retain control.
n
Currently, 25 states and the District of Columbia have already formally recognized supported decision-making agreements as legally valid documents. This growing national trend reflects a broader societal evolution away from institutionalization and towards community integration and self-determination for people with disabilities. Advocates emphasize that SDM aligns with the philosophy of person-centered planning, which prioritizes an individual’s preferences and goals. Ohio’s SB 35, if passed, would place the state among the vanguard of jurisdictions adopting this progressive approach, potentially influencing other states yet to enact similar legislation.
n
Scott Lundregan of ElevateDD eloquently captured the essence of this shift during a hearing, stating, “Virtually everything with estate planning and guardianship is all focused on what these people can’t do. Supported decision-making is about what they can do.” This sentiment encapsulates the empowering philosophy behind SDM, which aims to unlock potential rather than restrict it.
n
The Nuts and Bolts of SB 35: A Framework for Autonomy
n
Senate Bill 35 outlines a detailed framework for how supported decision-making would operate in Ohio, establishing clear guidelines and responsibilities. The core provisions of the current draft include:
n
- n
- Presumption of Competence: A foundational tenet of the bill is that all adults with developmental disabilities would be presumed competent to make their own decisions unless a court determines otherwise. This flips the traditional burden of proof, aligning with modern disability rights principles.
- Voluntary and Informed Consent: For an adult with a developmental disability deemed "of sound mind" to enter into a written supported decision-making plan, it must be created with their voluntary and informed consent. The agreement would require signing before a notary public or two adults who are not parties to the agreement, adding a layer of verification to the consent process.
- Defined Supporter Roles: Supporters, chosen by the individual, could assist in various ways: explaining options and their potential consequences, facilitating communication of decisions, helping to obtain relevant medical or financial information, and participating in discussions with third parties (e.g., doctors, bankers, social workers). Crucially, the adult would retain the right to limit the scope of the supporter’s involvement.
- Fiduciary Duty: A cornerstone of protection within the bill is the imposition of a fiduciary duty on supporters. This legal obligation mandates that supporters must always prioritize the adult’s interests above their own. A supporter found to be in breach of this duty could be held liable for any resulting damages, providing a mechanism for accountability.
- Retained Independence: The adult entering the agreement retains full authority to act independently of their supporter. They also have the unequivocal right to modify or terminate the supported decision-making arrangement at any time simply by notifying the supporter. This ensures that ultimate control remains with the individual receiving support.
- State-Provided Resources: The Ohio Department of Developmental Disabilities would be tasked with creating a model supported decision-making plan and developing educational materials. These resources would be vital for adults, their families, and professionals, ensuring widespread understanding and effective implementation of the new framework.
n
n
n
n
n
n
n
A critical distinction repeatedly emphasized by proponents is that, unlike guardianship, a supporter does not replace the adult as the decision-maker. Guardianship, established through probate court after a finding of legal incompetence, grants the guardian authority to make certain decisions for the individual. With supported decision-making, the adult explicitly retains this authority, with the supporter acting as a guide and facilitator, not a substitute.
n
A Less Restrictive Alternative to Guardianship: The Proponents’ Vision
n
Supporters of SB 35 frame the legislation as a long-overdue formalization of an existing, albeit informal, practice – that of seeking trusted advice before making important life choices. The bill’s significance, they argue, lies in providing a written, legally recognized structure for these arrangements, offering clarity and legitimacy to families, healthcare providers, financial institutions, and courts.
n
The primary motivation behind SB 35 is its role as a "less restrictive alternative to guardianship." This aligns with Ohio law, which already requires judges considering guardianship to assess whether an individual’s needs could be met through less restrictive means. SB 35 would explicitly allow supported decision-making to be presented as such an alternative, potentially preventing unnecessary curtailment of an individual’s rights.
n
Senator Michele Reynolds, co-sponsor of the bill, underscored this philosophy during committee testimony: “We don’t always need to approach everything from a guardian or a control standpoint. We need to coach individuals to be able to self-actualize and live to their fullest potential.” This statement reflects a fundamental belief in the inherent capacity of individuals with developmental disabilities to grow, learn, and make meaningful choices about their own lives.
n
Attorney Derek Graham, whose daughter has Down syndrome, shared a deeply personal perspective, highlighting the pervasive assumption that a developmental disability diagnosis automatically necessitates guardianship upon reaching adulthood. He recounted how, even without knowing his daughter, many suggested she would require guardianship. "My wife and I, we don’t want to make decisions for our daughter," Graham told lawmakers. "I want to continue to make decisions with her." His testimony powerfully illustrates the desire of many families to foster independence and collaboration rather than control.
n
Stephanie Leppert, herself an adult with Down syndrome, provided a living example of supported decision-making in action. She described how, with advice from friends, family, and her service coordinator, she successfully transitioned from living with her parents for 37 years to living independently. Her story is a testament to the real-world benefits of having a network of support that respects and empowers individual choice.
n
More Freedom, But Who Is Watching? The Critics’ Concerns
n
While the principles behind supported decision-making enjoy widespread approval, the specifics of SB 35 have drawn significant scrutiny, particularly concerning the mechanisms for oversight and protection against exploitation. The primary concern revolves around the bill’s intent for supported decision-making agreements to operate largely outside the judicial system, unlike guardianship which is court-appointed and supervised.
Chief Magistrate Lisa Wiseman of the Montgomery County Probate Court articulated these concerns during her testimony. She clarified that, typically, supported decision-making agreements would be created privately and not filed with or approved by the probate court. "The court would not be involved, typically, unless somebody has brought an action to the court," she stated, raising a critical question: how would potential coercion or exploitation be detected before serious harm occurs if family members or other concerned parties are unaware an agreement even exists?
A central point of contention lies in the bill’s phrasing regarding consent: "If an adult with a developmental disability who is of sound mind voluntarily chooses to enter into a supported decision-making plan, the plan shall be created with the informed consent of the principal." Critics argue that the phrase "of sound mind" is ambiguous and lacks a clear definition within the bill. Who determines if someone is "of sound mind" to enter such an agreement? Without a judicial determination at the outset, concerns persist that individuals who lack the mental capacity to fully understand the agreement or resist undue pressure could be coerced into arrangements that are not truly voluntary.
Sarah Klingler, who serves on a friend’s supported decision-making team, highlighted this ambiguity, questioning the lack of clarity on who would assess mental capacity. Conversely, Dawn Bilpuch, who is blind and utilizes supported decision-making, voiced a different concern: an overly stringent or unclear "sound mind" standard could lead to unnecessary competency testing for individuals seeking to use a system designed to increase their independence.
Attorney Caroline A. Lahrmann, a co-guardian for two adults with developmental disabilities, offered some of the sharpest criticism. She contended that the bill’s wording does not explicitly require someone to be of sound mind before entering an agreement, but rather describes what happens if someone who meets that standard chooses to do so. She dismissed the language as "malarkey" and "insulting," arguing it could leave people vulnerable to legally binding agreements they do not comprehend. "This bill treats people with developmental disabilities with less care than any other Ohioan," Lahrmann asserted, emphasizing a perceived gap in protections compared to other legal agreements.
Another significant area of concern for Lahrmann and others is the broad definition of who can serve as a supporter. SB 35 does not categorically exclude paid service providers or establish criminal-history restrictions for supporters. Instead, it relies heavily on fiduciary duties and conflict-of-interest rules for accountability. Critics argue this lack of explicit vetting and "no oversight" mechanism is insufficient. Lahrmann also pointed out that the proposal does not create a new mandatory-reporting requirement for third parties who suspect exploitation within a supported decision-making arrangement.
Kristen Henry of Advocacy and Protective Services, however, offered a counter-assessment. She argued that "of sound mind" mirrors capacity standards already used elsewhere in Ohio law, such as for healthcare powers of attorney. She also stated that many professionals within Ohio’s developmental disability system are already subject to mandatory reporting requirements for suspected abuse, neglect, or exploitation, which would provide a layer of protection. She suggested that if a supporter were "clearly acting not in good faith, then they would not have the protections that are in that bill."
Lingering Gray Areas and Future Implications
Despite the comprehensive nature of SB 35, the House hearings have brought to light several unsettled nuances and practical questions about how supported decision-making would function in practice, highlighting critical areas for potential refinement:
- Defining "Sound Mind": The most persistent question revolves around who determines if someone is "of sound mind" to enter an agreement. The bill uses this phrase for informed consent but provides no specific mechanism or requirement for an evaluation. This leaves a significant gap in establishing the principal’s capacity at the point of agreement.
- Ensuring True Voluntariness: Without court approval, how can lawmakers ensure an agreement is truly voluntary and free from manipulation? House Chair Andrea White and Rep. Tracy Richardson questioned who would detect undue influence before or after an agreement is signed. Chief Magistrate Wiseman indicated courts would generally not examine the issue unless a dispute was formally brought before them, suggesting a reactive, rather than proactive, oversight model.
- Supporter Qualifications and Background Checks: The bill broadly defines a supporter as any adult chosen by the principal, without explicitly disqualifying individuals with criminal histories or those who are paid providers. While it mandates disclosure of conflicts of interest, critics worry this may not be enough to prevent harmful actors from assuming a supportive role.
- Ongoing Oversight Post-Agreement: Unlike guardianship, supported decision-making generally operates outside probate court supervision. Chair White raised concerns about who would provide "eyes" on the arrangement if a supporter began exploiting someone. Wiseman suggested medical providers, financial institutions, and others might raise concerns, but acknowledged they might not even be aware an agreement exists.
- Interaction with Existing Guardianship: SB 35 does not specify how a supported decision-making plan would coexist with an existing guardianship. Wiseman clarified that if both were in place, the guardian would retain final authority, effectively making them "the only decision maker," which could undermine the autonomy principles of SDM. This suggests a need for clear provisions on how these two legal frameworks would intersect.
- Notification of Agreement Termination: A principal can terminate or modify a plan by simply notifying the supporter. The bill lacks a requirement for the agreement to be registered or a central notification system for third parties (doctors, banks) who may have previously relied on it. While third parties acting in good faith are protected, the lack of a clear notification system could lead to confusion and potential challenges.
- Recourse for Breach of Fiduciary Duty: Supporters have a fiduciary duty and can be held liable for damages if breached. However, the bill does not create a court-supervised removal process akin to guardianship. Critics questioned how an adult experiencing manipulation would effectively recognize the problem, terminate the arrangement, and pursue a civil claim, especially if their ability to understand and navigate legal processes is precisely why they sought support in the first place.
The implications of these lingering gray areas are substantial. How the Ohio legislature addresses them will determine the effectiveness and safety of supported decision-making as a viable alternative for thousands of Ohioans. Amendments or further legislative clarifications may be necessary to instill confidence among all stakeholders that the bill strikes the right balance between promoting autonomy and safeguarding the vulnerable. The ultimate goal is to empower individuals with developmental disabilities to live self-determined lives, and ensuring robust protections within the framework will be paramount to achieving that vision.
© 2026 Advance Local Media LLC
Distributed by Tribune Content Agency, LLC
