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Alternatives to Guardianship: Supported Decision-Making Agreement vs. Powers of Attorney

Author: Jason Hanna

Contributing Editor: Kristin LeeĀ 

Applying for guardianship can be an arduous process, not only for families navigating the legal system, but also for courts, in both creating and supervising guardianship administrations. As a result, all alternatives to guardianship must be explored prior to initiating legal proceedings for guardianship. If it can be determined that a less restrictive means exists to resolve pending issues, then a guardianship should not be filed with the courts. In almost all matters, alternatives to guardianship should be pursued first, as guardianship truly is an option of last resort.

The most frequently used alternatives to guardianship are powers of attorney. In Texas, we distinguish between financial powers of attorney and powers of attorney for health care matters. Both are important pieces to every successful estate plan, and both assign the right to make decisions about an individual’s financial matters and health care decisions to a designated agent. That agent is duty bound to act in the individual’s best interest, and most importantly, they have the legal authority to make important financial, legal, and healthcare decisions on behalf of the individual.

Another alternative to guardianship, the Supported Decision-Making Agreement, is used much more infrequently but can offer a level of freedom and autonomy that the power of attorney does not. With a Supported Decision-Making Agreement, an adult with a disability may participate in the decision-making process whereas an agent under a power of attorney acts on behalf of the disabled individual without input. Without question, if someone is able to participate in making important life decisions, then that individual should be able to contribute to the to the decision-making process. In essence, this is what the Supported Decision-Making Agreement allows by nominating a supporter of the adult disabled individual’s choosing. The nominated supporter can assist a person with a disability understand the pros and cons of a proposed action and the resulting consequences. This process empowers the adult disabled individual by including them in decision-making processes but also provides a supporter who can help obtain information relevant to helping make the decision at hand, such as with financial records. The supporter can also communicate the disabled person’s decisions for them, but ultimately the supporter cannot make a decision for the individual.

Understanding the key differences in alternatives to guardianship is essential in understanding whether just one or both options may be ideal for your situation. Supported Decision-Making Agreements allow disabled individuals to participate meaningfully in the decisions affecting their life for as long as they possibly can, and the power of attorney can be drafted so that the agent’s authority is only granted when the individual with a disability is deemed incapacitated by a licensed physician, or perhaps when the individual can no longer meaningfully participate in the decision-making process pursuant to the terms of the Supported Decision-Making Agreement. Ultimately, what is best for your situation is best determined in a one-on-one counseling session with your attorney or other trusted advisor.

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