During the 84th Texas Legislative session in 2015, the Supported Decision-Making Agreement (SDMA) Act was passed. This law recognized SDMA as an alternative to guardianship. The law required courts to consider alternatives to guardianship prior to granting a guardianship. The law also dictated that the SDMA must be signed voluntarily, without coercion or undue influence.
What is a Supported Decision-Making Agreement?
A Supported Decision-Making Agreement is a document where an adult person with a disability can name another adult to support them through their decision-making process. The person, called “supporter,” is there to support the adult with a disability. The supporter can assist, clarify, and research topics for the individual. The supporter is not making decisions for the individual but offering them support and guidance if needed.
These agreements were designed for people who have a disability and are over the age of eighteen. The individual signing the document must understand what they are signing. The agreement’s purpose is to support and accommodate an individual with a disability in making life decisions. It can be revoked by the individual or their supporter at any time. The actual form is easy to follow for both the individual and the supporter. Fill in the blanks, answer the “YES” and “NO” questions, and then sign.
Suitable candidates for a SDMA are those who can communicate their wishes, who want to maintain control over their life, and who have people in their life willing to support them. It provides a path for individuals to direct their own care and desires for their life.
The supporter is not a guardian, and they cannot make decisions for the individual. They are only authorized to support the individuals as requested and needed. The supporter cannot act independently, but on the individual’s behalf.
The Difference Between a Supporter and a Guardian
To contrast, a guardian can make independent decisions for the individual without consulting the individual. Guardians are tasked with working ‘in the best interest’ of a person. This is much different than that of a supporter. For the individual that cannot communicate their wishes and needs, supported decision making may not be feasible. If it is not, then guardianship may be the appropriate alternative.
The SDMA is preferred, because employing the least restrictive alternatives for people preserves their ability to make choices for themselves. Guardianship removes their ability to make their own choices about their life, while a supported decision-making agreement allows the individual to direct their life as they see appropriate. Just as guardianships cannot stop people from making poor decisions, neither can this agreement.
In some cases, the lines are blurred about who may benefit from a SDMA and who needs a guardian. Seeking out professional guidance from the individual’s primary care provider and an attorney may help light the appropriate path.
Hammerle Finley Offers Guardianship Services
Hammerle’s unique Guardian Services program is one of the only guardianship and care management programs within the state of Texas that is hosted by a sought-after law firm. There are numerous benefits to the client and their family through this unique relationship, such as highly qualified and trained staff, access to legal advice and direction, and an additional level of oversight and accountability.
Courtney Carey is a Texas Certified Guardian and a Care Manager, with experience in Texas Medicaid waiver programs, intellectual and developmental disabilities, mental health, and geriatrics. Contact Hammerle Finley Law Firm to schedule a consultation: www.hammerle.com. This column does not constitute legal advice.