An Estate Planning Tool to Consider
I have in my trusty toolbox the estate planning documents I think every adult should have, but there are a lot of other available documents that I use only sparingly. The Supported Decision-Making Agreement is one of those.
What Is a Supported Decision-Making Agreement?
A Supported Decision-Making Agreement is what I refer to as a twilight document, useful for those adults who fall in between: they need some assistance but not enough to qualify for a full guardianship. Picture someone with a physical disability, like cerebral palsy, or someone with a very slight mental incapacity. They have enough mental capacity to make their own decisions, but may need a trusted person to fully explain the issue to them or communicate the decision to a doctor or financial advisor.
Legal Framework in Texas for a Supported Decision-Making Agreement
Texas has a statute authorizing a Supported Decision-Making Agreement. Let’s talk about only the Texas law and assume for our discussion that you are the person with the disability.
Let’s further assume that you are at least 18 years old and that your disability is a physical or mental impairment that substantially limits one or more of your major life activities.
Because of your impairment, you need some help so that you can make your own decisions about major life issues.
What type of issues? Think about:
- Where you want to live
- The medical care you want to receive
- The services you want to have
- Who you want to live with
- Where you want to work
You know that with assistance, you can make this work. What type of assistance?
- Perhaps just someone who takes the time and uses plain language to discuss your choices
- Uses visual or audio communication tools to explain things to you
- Creates a list of pros and cons
- Simply attends meetings with you and takes notes
How to Choose a Supporter
Choosing and Authorizing a Supporter
Under Texas law, you can designate a supporter to provide that assistance and agree as to that person’s role. Your supporter should be someone you trust, such as a friend, family member, or legal or financial professional.
There are some formalities that you must follow for this to work: your agreement must be in writing, signed without coercion or undue influence, by you and your supporter in the presence of two valid witnesses or a notary public. The Texas statute contains a preferred form.
Scope of Authority
In the form, you state what type of authority your supporter has. You can authorize your supporter to help with your supported decision-making, help you collect documents that are relevant to that decision, help you understand the information on the documents, and then communicate your decision to the people who need to have it.
Third parties, such as doctors and banks, are entitled to rely upon your Supported Decision-Making Agreement.
Supporter Responsibilities and Obligations
Your supporter has certain obligations. He or she owes you a duty to act in good faith, act within the authority granted in the agreement, act loyally and without self-interest, and avoid conflicts of interest. If your supporter receives your personal information, then he or she must keep that information privileged and confidential.
Of course, having this agreement in place doesn’t stop you from obtaining the documents through other means or making decisions without your supporter.
The agreement ends if you or your supporter terminates it, if your supporter is found to have abused, neglected, or exploited you, or if a guardian is appointed for you.
Hammerle Finley is Here to Help With Supported Decision-Making Agreements
The concept behind the Supported Decision-Making Agreement is noble, and it could be a perfect solution for you. It just isn’t the right tool for everyone.
Our knowledgeable attorneys can guide you in determining whether a Supported Decision-Making Agreement is the right tool for you or your loved one. Schedule a consultation today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
