Texas is trying out Supported Decision-making as an alternative to guardianship

The law allows a Court to appoint a legal guardian for a person who is incapacitated. An Incapacitated Person is defined in NJ as someone who by reason of mental illness, intellectual disability, physical illness, physical disability, chronic drug or alcohol use, or other cause, “lacks sufficient capacity to govern himself and manage his affairs.” Since we are dealing with the functioning of an adult human mind, “incapacity” is not always simple to determine, and can depend on the functional task in question. There are a wide range of decisions that a person needs to make on a daily basis. Some decisions have great impact on the person’s health and survival, and others don’t. Limited guardianship remains an option. Now,Texas has taken a bold step and has enacted a law (S-1881) called the Supported Decision-Making Agreement Act. We have previously blogged about supported decision-making as an aspirational idea. Since guardianship results in a loss of rights and liberties, supported decision-making may provide a workable less-restrictive alternative.

At its heart, supported decision-making is a contractual arrangement between two parties — one being the party who needs help with major decisions, and the other being the party who agrees to provide that assistance. Here is the Texas form for such an agreement.supported-decision-making-agreement-texas-form-oct15

As with any contract, there must be a “meeting of the minds” as to what is intended and expected, what each party’s duties are, how they will communicate, and how they will resolve disputes. The more detailed the written agreement, the better, because ambiguity leads to misunderstanding, confusion and chaos. There must be a framework for carrying out the decisions. Presumably, the party who needs assistance retains the right to sign legal documents. And there may still be a need to provide a broad power of attorney that could be used should the individual ever become truly “incapacitated” and require a surrogate decision-maker. 

Meanwhile, keep an eye on Texas to see how these new arrangement work out.

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