It isn’t often that the Texas Legislature presents us with a brand-new, never-before-seen-in-Texas, Estate Planning document.
So it is with great pride (and even greater trepidation) that we introduce the Supported Decision-Making Agreement. Effective September 1, 2015, whether Texas is ready or not.
The SDMA (it’s never too early to give an acronym) is intended as an alternative to guardianship for adults who have a disability (physical or mental) that limits at least one of the major life activities.
Here’s how it is supposed to work. The Adult with a disability enters into an Agreement with a “Supporter” that authorizes the Supporter to assist in collecting and explaining information (medical, psychological, financial, educational, or treatment records), to the Adult. The Supporter then helps the Adult communicate his or her decisions to “appropriate persons.”
Note that the Supporter is not supposed to make the decisions. The Supporter is only supposed to assist the Adult in making his or her own decisions.
The Agreement can be for a specified period , or until terminated by either the Supporter or the Adult. It also terminates automatically if the Supporter abuses, neglects or exploits the Adult (as determined by Adult Protective Services or a criminal conviction).
The Statute very helpfully includes a recommended form for the Agreement.
Can the Supporter get paid for this gig? The Statute is silent on that point. Since “Supporter” is defined as an adult, can a company act as a Supporter? Apparently not. Why is this new Agreement necessary when the Adult could just sign a Durable Power of Attorney? Now that’s a really good question.
Will the Supported Decision-Making Agreement revolutionize Guardianship Law, or will it just be another unused form in the back of the manual? Stay tuned.