Supported Decision Making As an Alternative to Guardianship

Will I need a guardianship when my child reaches 18?  Many parents ponder this question.  There are several less restrictive alternatives to guardianship that should be considered. Supported Decision Making is built around the concept of person-centered planning, preserving the maximum amount of self-determination for the individual with cognitive impairments..  The goal is to protect rights and ensure choices of the person at the center of the picture.  Studies have shown that people with self-determination are happier, more productive and more integrated in the community. This principle follows the idea of “learned helplessness.”  If people repeatedly tell someone they are not able to do certain things or if they have always had the thing done for them, they will never learnt to do it on their own and will begin to believe they are incapable.

First let us discuss what a guardianship means for the individual with impairments.  In most cases, courts tend to prefer to grant a plenary (or full) guardianship encompassing virtually all decisions of every day life for him or her.  This means in most cases that the guardian makes the decisions instead of the ward.  These decisions can be as simple as what groceries will be in the cupboard or as complex and fundamental as where and with whom he shall live.  In a guardianship the ability or right to make certain decisions or to do certain things are actually taken away from the ward.  These would include the right to vote in an election, drive a car, or marry.

This is not to suggest that a guardianship is a bad thing — in many cases it is absolutely appropriate and necessary.  There are many situations in which the person in question does not have the ability to make decisions for him or herself.  It all hinges on the mental capacity of the person in question and whether they are able to take care of themselves and their affairs. The issue gets tricky where the individual can make decisions, but cannot be relied upon to choose the safe alternative.  The safety and well being of the proposed ward is critical, but remember that all humans learn from their mistakes.  That  is an integral part of the process of growing up.

It is important to know that the Texas Legislature recently revised the guardianship statute to require that before one is granted, the person wanting the guardianship (the applicant) must demonstrate that all other alternatives have been examined and ruled out. These include powers of attorney, special needs trusts, representative payees and supported decision making.

         With a power of attorney (POA) an agent attains the ability to do something for the disabled person (consent to medical treatment or handle financial or other transactions) in addition to the person’s right to do it.  The right to do it isn’t taken away from the person granting the power. Similarly, with a joint bank account, both parties can sign on the account.  With a special needs trust, a trustee is put in charge of making distributions for the benefit of the beneficiary of the trust but its powers and limitations on that power are spelled out in the trust agreement.

With a supported decision making relationship, the disabled person chooses a person to be his or her supporter.  This allow the person to sit in on meetings like ARDs or a physician appointment and help to interpret and evaluate the information and guide the disabled person in making the decision for him or her self.  Supported decision making is designed to help people with cognitive challenges:

  • understand information and choices;
  • focus attention in decision making;
  • weigh options;
  • ensure that decisions are based on their own preferences; and
  • interpret or communicate decisions to other parties.
       Supported decision making is appropriate where the person in question has legal capacity to sign such an agreement (understands the basic purpose of and areas covered by) and agree to it.  It covers “life decisions” which could include decisions regarding:
  • obtaining food, clothing and residence;
  • cohabitation choices;
  • supports, services and medical care to be received;
  • financial management assistance; and
  • workplace choices.

Supported decision making will not be sufficient where the individual lacks the understanding to make choices but is an excellent arrangement for those with a higher degree of cognitive competence but has difficulty communicating or needs support to have their attention directed at the issues to be considered.

If you need help in deciding whether a Supported Decision Making Agreement might make sense for your loved one or if you need assistance with a guardianship, please call or email me for a complimentary consultation today.  I’d be delighted to meet with you and hear about your concerns and suggest ways to address them.

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