Supported Decision-Making in North Dakota: A Parent's Guide to NDCC 30.1-36

What Supported Decision-Making Actually Is

Supported Decision-Making is a legal framework that lets a young adult with a disability keep full control of their own life while designating someone they trust to help them make decisions. The helper — called a "supporter" under North Dakota law — can assist with gathering records, explaining options, and communicating choices. The supporter cannot make decisions for the person or sign documents on their behalf.

North Dakota codified this in 2019 under NDCC Chapter 30.1-36, making SDM a formally recognized legal alternative to court-ordered guardianship.

How NDCC 30.1-36 Works

The law defines two roles: the "Named Individual" (your adult child) and the "Supporter" (usually a parent, but it can be any trusted adult). Here's what the statute establishes:

Presumption of capacity. Under § 30.1-36-04(1), the named individual is legally presumed to have the capacity to enter into an SDM agreement. This presumption can only be overcome by clear and convincing evidence. The law explicitly states that using augmentative communication, non-verbal methods, or uncommon communication styles does not affect capacity.

Scope is customizable. The agreement specifies exactly which life domains the supporter assists with — healthcare, finances, education, housing, employment, or any combination. You're not signing over everything; you're defining what help looks like.

Third parties must recognize it. Under § 30.1-36-08, doctors, banks, landlords, schools, and other institutions must accept and rely on the agreement. The only exceptions are when they suspect abuse, neglect, or exploitation, or when they have actual knowledge the agreement was terminated.

Termination is easy. The named individual can end the agreement at any time through oral, written, or non-verbal notice. The agreement also terminates automatically for a specific supporter if they are convicted of a crime involving abuse, neglect, or exploitation or if a court issues a restraining order against them.

How to Execute an SDM Agreement

Setting up an SDM agreement in North Dakota doesn't require a lawyer or a court filing. The agreement must be:

1. Written, signed, and dated by both the named individual and the supporter
2. Verified by either a notary public or two qualified witnesses

The witness requirements are specific. Under § 30.1-36-07, a qualified witness must be at least 18, competent, not a party to the agreement, not employed by or an agent of any named supporter, and not a creditor of the named individual. You can't use a family member who is also named as a supporter.

SDM Versus Guardianship: A Practical Comparison

Guardianship strips the young adult of some or all decision-making rights and requires a court petition, a formal visitor's report, and typically $2,500 to $4,500 in legal fees. North Dakota courts must review adult guardianships every five years.

SDM preserves all the young adult's civil rights, costs nothing beyond notarization, and can be modified or ended at any time without court involvement.

North Dakota law creates a strong preference for SDM. Under § 30.1-28-04(2), a court cannot appoint a guardian unless the petitioner proves by clear and convincing evidence that less-restrictive alternatives — including SDM — were tried first and found insufficient to protect the individual's health or financial safety.

This means even if you ultimately pursue guardianship, you'll likely need to show you tried SDM or explain why it wouldn't work.

When Guardianship May Still Be Necessary

SDM works when the young adult can participate in decision-making with support. For individuals with the most significant cognitive disabilities — those who cannot indicate preferences even with assistive communication — a limited or full guardianship may genuinely be needed to prevent exploitation and ensure safety. The legal system allows for that. But it shouldn't be the default.

Getting Started

The best time to explore SDM is during the year between the age-17 transfer-of-rights notice and the student's 18th birthday. Introduce the concept in IEP meetings so the transition plan can reference the agreement and the school knows who the designated supporter will be.

The North Dakota IEP Transition to Adulthood Guide includes a detailed comparison worksheet for weighing SDM against guardianship, along with step-by-step instructions for preparing and executing a compliant agreement under NDCC Chapter 30.1-36.

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