SESSION OF 2021
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2122
As Recommended by House Committee on
Judiciary

Brief*
HB 2122 would create the Supported Decision-Making
Agreements Act (Act) allowing adults, or “principals,” to enter
into supported decision-making agreements to receive
decision-making assistance with the adult’s affairs from one
or more other adults, or “supporters.”

Principals
The bill would define a “principal” as an adult who enters
into a supported decision-making agreement under the Act to
receive decision-making assistance.

Supporters
A “supporter” would be defined by the bill as an adult
who enters into a supported decision-making agreement and
provides decision-making assistance.
A supporter could not be a person against whom a
protective order or restraining order has been entered by a
court at the request of or on behalf of the principal.


____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org
Supporters would be required to:
● Act with the care, competence, and diligence
ordinarily exercised by individuals in similar
circumstances; and
● Keep information collected on behalf of the
principal:
○ Confidential;
○ Protected from unauthorized access, use, or
disclosure; and
○ Only for the use authorized by the principal.

Supporters could provide the principal with assistance:
● Making decisions, communicating decisions, and
understanding information about, options for, the
responsibilities of, and consequences of decisions;
● Accessing, obtaining, and understanding
information relevant to decisions necessary for
managing the principal’s affairs:
○ This would include medical, psychological,
financial, educational, treatment, and other
records; and
○ Supporters could also use dated consent to
assist the principal in obtaining protected
health information or educational records;
● Ascertaining the wishes and decisions of the
principal, assisting in communicating those wishes
and decisions to others, and advocating to ensure
implementation of the principal’s wishes and
decisions; and
● Accompanying the principal and participating in
discussions with other persons when the principal

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 is making decisions or attempting to obtain
information for such decisions.
Supporters would be prohibited from:
● Exerting undue influence on the principal;
● Making decisions for or on behalf of the principal;
● Signing for the principal or providing the electronic
signature of the principal to a third party;
● Obtaining information not reasonably related to the
matters the supporter is authorized to assist the
principal with under the agreement, without the
consent of the principal; or
● Using information acquired for a purpose
authorized under the agreement for a purpose
other than assisting the principal with a decision
authorized by the agreement.
Supporters acting in good faith and in accordance with
the Act would not be liable to the principal or a third party for
injuries, damages, or other losses arising from a decision
made by a principal in which the supporter assisted or was
otherwise involved.

Entering Agreements
The bill would require supported decision-making
agreements to be entered into voluntarily and without
coercion or undue influence, and the adult entering into one
(the principal) would have to understand the nature and effect
of the agreement. Such agreements could not be entered into
if they encroach on the authority of a guardian or conservator
of the adult making the agreement, unless approved in writing
by the guardian or conservator.

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 The bill would specify adults who enter into supported
decision-making agreements could act without the decision-
making assistance of the supporter, and the execution of a
supported decision-making agreement would not constitute
evidence that the principal does not have capacity.

Requirements for Agreements
The bill would require supported decision-making
agreements to:
● Name one or more adults to provide a principal
with decision-making assistance;
● Describe the assistance each supporter may
provide the principal;
● Contain a notice to third parties that summarizes
the rights and obligations of each supporter under
the agreement and expressly identifies the
provisions of the Act; and
● Contain a separate declaration by each supporter
or alternate supporter, signed by the supporter,
stating:
○ The supporter’s relationship with the principal;
○ The supporter’s willingness to act as a
supporter for the principal; and
○ The supporter acknowledges the duties of a
supporter under the Act.

Validity of Agreements
A supported decision-making agreements would be valid
if:
● It is dated;

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 ● It is in writing;
● It is signed by the principal and each named
supporter or alternative supporter and then
notarized or signed in the presence of two
witnesses who also sign the agreement:
○ Witnesses must be adults who understand the
means of communication used by the
principal, or an individual who understands
the means of communication used by the
principal must be present; and
○ Witnesses cannot be named supporters or
employees or agents of a supporter named in
the agreement;
● A guardian or conservator, if any, has been notified
of the agreement by the principal; and
● The agreement otherwise complies with the
provisions of the Act.
Supported decision-making agreements would be
required to be substantially in compliance with a form the bill
would direct the Judicial Council to establish.

Terminating Agreements
Supported decision-making agreements could indicate
their effective dates and duration. If no effective date is
specified, the agreement would become valid immediately.
Principals would be able to terminate all or any portion of an
agreement at any time. Supporters would be able to
terminate all or a portion of their obligations under the
agreement at any time.
If no duration was specified, the agreement would be
effective until a dated termination is made in writing and
signed by the terminating party.

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 The bill would require notice of a termination be given to
the other party (supporter or principal) in person, by certified
mail, or by electronic means.
If a portion of the agreement is terminated and the
termination is consistent with the provisions of the Act, the
remainder of the agreement would remain in effect.

Effect of Agreements
Decisions or requests made or communicated with the
assistance of a supporter under the Act would be recognized
as a decision of the principal and could be enforced in law or
equity on the same basis as a decision or request of the
principal.
Persons who act in good faith would not be subject to
civil or criminal liability or discipline for unprofessional
conduct for:
● Complying with an authorization pursuant to a
supported decision-making agreement based on
an assumption the agreement is valid and not
terminated;
● Declining to comply with an authorization based on
actual knowledge that the agreement is invalid or
has been terminated; or
● Declining to comply with an authorization related to
health care if the person declines because the
action proposed is contrary to the good faith
medical judgment of the person declining or a
written policy of a health care institution based on
reasons of conscience.


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Application of the Act
The bill would specify that, in the application of the Act, a
decision that a principal is incapable of managing the
principal’s affairs could not be based on the manner in which
the principal communicates with others and a principal is
considered to have capacity even if the capacity is achieved
by the principal receiving decision-making assistance, unless
a court has determined that the principal does not have
capacity.

Definitions
The bill would define, for purposes of the Act, these
terms in addition to “principal” and “supporter”: “adult,”
“affairs,” “capacity,” “conservator,” “decision,” “decision-
making assistance,” “good faith,” “guardian,” “immediate
family member,” “person,” and “supported decision-making
agreement.”

Criminal Penalties
Violation of the Act would be added to the crime of
mistreatment of a dependent adult or an elder person, which
would carry felony or misdemeanor penalties, depending on
the amount of financial resources involved. The bill would
also make a technical amendment to this section to ensure
consistency in statutory phrasing.

Background
The bill was introduced by the House Committee on
Federal and State Affairs at the request of Representative
Barker.


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House Committee on Judiciary
In the House Committee hearing on March 11, 2021, the
Long-Term Care Ombudsman; representatives of Disability
Rights Center of Kansas, Kansas Council on Developmental
Disabilities, Kansas Mental Health Coalition, and Self
Advocate Coalition of Kansas; and two private citizens
testified as proponents of the bill. Proponents stated the bill
would provide individuals with a mid-level option for
individuals needing assistance with decision-making to
receive support while still remaining as independent as
possible. Representatives of AARP Kansas, Alzheimer’s
Association, KanCare Advocates Network, Kansas Advocates
for Better Care, Kansas Coalition Against Sexual and
Domestic Violence, and the National Guardianship
Association, as well as two private citizens, provided written-
only proponent testimony.
A representative of the Kansas University Center on
Developmental Disabilities submitted written-only neutral
testimony.
No opponent testimony was provided.

Fiscal Information
According to the fiscal note prepared by the Division of
the Budget, the Office of Judicial Administration indicates
enactment of the bill could create litigation surrounding the
agreements and related matters, requiring more time spent
by court employee and judges processing and hearing cases,
but a fiscal effect cannot be estimated until the Judicial
Branch operates under the bill’s provisions.
The Office of the Attorney General states enactment of
the bill could increase cases referred to its Fraud and Abuse
Litigation Division, but it cannot estimate the number of
additional cases or expenditures.

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 The Kansas Sentencing Commission indicates
enactment of the bill may have an effect on prison admissions
and beds, but it cannot estimate the effect.
Any fiscal effect associated with enactment of the bill is
not reflected in The FY 2022 Governor’s Budget Report.
Supported Decision-Making Agreements Act


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Statutes affected:
As introduced: 21-5417, 21-6418