Delaware Supported Decision-Making Agreement: How to Set One Up

What Supported Decision-Making Actually Is in Delaware

Supported decision-making is not guardianship-lite. It is the opposite of guardianship. Under Delaware's Supported Decision-Making Act (16 Del. C. Ch. 94A), enacted in September 2016, your adult child retains full legal capacity — every right, every freedom, every decision. What the agreement creates is a formal support structure: named individuals who can be present at meetings, help gather information, explain options, and assist in communicating decisions.

The supporter never decides for the young adult. Under § 9402A, supporters are explicitly prohibited from making decisions on behalf of the principal or exerting undue influence. The young adult hears the options, weighs them with help, and makes their own choice.

Who Qualifies

To execute a valid SDM Agreement, the young adult must understand the nature and effect of the agreement at the time of signing. This is a lower capacity threshold than what is required for a Durable Power of Attorney (which requires testamentary capacity) and substantially lower than the full decisional capacity the court evaluates in guardianship proceedings.

In practical terms: if your adult child understands that they are asking someone to help them with decisions and that they can stop the arrangement whenever they want, they likely meet the capacity threshold for an SDM Agreement.

The Execution Requirements

Delaware's SDM Act imposes specific execution requirements under § 9405A:

• The agreement must be written, dated, and signed by the principal (the young adult)
• Each named supporter must sign a separate declaration stating their relationship, their willingness to serve, and their acknowledgment of statutory duties
• Two adult witnesses must be present at signing

The witness rules are strict. Neither witness can be:

• A supporter named in the agreement
• An employee or agent of a named supporter
• An individual who does not understand the principal's primary mode of communication (unless an interpreter is present)

No notarization is required — unlike a Durable Power of Attorney, an SDM Agreement does not need a notary seal to be legally binding. The two witnesses are sufficient.

What the Agreement Must Contain

The written agreement must specify the exact areas where the supporter is authorized to assist. Delaware law organizes these into categories:

• Health affairs — attending medical appointments, helping understand treatment options, communicating with providers
• Financial affairs — helping review bank statements, understanding bills, making budgeting decisions
• Supportive services — assisting with applications for DDDS services, Medicaid waivers, employment programs
• Daily life decisions — housing, transportation, social activities

You do not have to grant authority in all areas. The agreement can be as narrow or broad as the young adult's needs require. Many families start with one or two areas and expand later.

The HIPAA and FERPA Problem

Here is where many families get tripped up. An SDM Agreement authorizes the supporter to help the young adult access their own records, but it does not automatically bypass federal privacy protections. Under 16 Del. C. § 9406A, third-party providers are protected when they rely on an SDM in good faith — but hospitals, schools, and banks often want more.

For medical records: Execute a HIPAA authorization form alongside the SDM Agreement, naming the supporter as an authorized recipient of the young adult's protected health information.

For school records: Execute a FERPA release alongside the SDM Agreement, authorizing the supporter to access educational records from the school district.

For financial records: Individual banks and financial institutions may require their own authorization forms. Present the SDM Agreement along with the institution's standard third-party access forms.

The SDM Agreement opens the door. The separate privacy releases are what providers actually rely on to share information. Filing both together eliminates the back-and-forth.

The Scope-of-Authority Mistake

Some national guardianship directories and out-of-state resources incorrectly claim that an SDM Agreement gives the supporter authority to sign documents, authorize medical procedures, or execute financial transactions on behalf of the young adult. In Delaware, this is wrong.

A supporter under an SDM Agreement has no authority to:

• Sign medical consents
• Execute bank transactions
• Authorize or refuse treatment
• Enter into contracts on the young adult's behalf

If the young adult needs someone who can actually sign documents and make binding decisions on their behalf, they need a Durable Power of Attorney (for finances) or an Advance Health-Care Directive (for medical decisions). The SDM Agreement provides decision support; the POA and AHCD provide decision authority.

Revoking or Changing the Agreement

The young adult can revoke the SDM Agreement at any time in writing and with notice to the other parties to the agreement. No court involvement needed. The agreement can also be modified — adding or removing supporters, expanding or narrowing the areas of authority — by executing a new agreement.

The state publishes a model SDM Agreement form through the Department of Health and Social Services, but families can draft customized agreements as long as they comply with the statutory execution requirements.

Where SDM Fits in the Turning-18 Plan

For most families, the SDM Agreement is the first document to execute — ideally before the young adult's 18th birthday. It establishes the support structure for everyday decisions. A DPOA and Advance Health-Care Directive are then added to cover the specific situations where someone needs authority to act on the young adult's behalf.

The Delaware Adult Guardianship & Alternatives Guide walks through all three documents with the Delaware-specific forms, witness rules, and model language you need.

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