Supported Decision-Making Agreements Can Preserve Independence and Help Avoid Guardianship in Texas

Key Takeaways:

• A Supported Decision-Making Agreement lets a qualifying Texas adult with a disability receive help understanding and communicating decisions without giving the supporter authority to make those decisions.
• Texas law recognizes Supported Decision-Making as a less restrictive alternative to Guardianship for adults with disabilities who need decision-making assistance but are not considered incapacitated for Guardianship purposes.
• Before appointing a guardian, a Texas court must find that alternatives to Guardianship and available supports and services have been considered and are not feasible.
• A Supported Decision-Making Agreement, Power of Attorney, limited Guardianship, or another legal tool may be appropriate depending on the adult's abilities and circumstances.

Families often assume that Guardianship is the natural next step when an adult child with a disability or an aging loved one begins needing help with important decisions. Texas law, however, recognizes less restrictive alternatives that may preserve more independence. One of those tools is a Supported Decision-Making Agreement, which allows a qualifying adult with a disability to choose someone they trust to assist with understanding information and communicating decisions.

The Texarkana Probate and Guardianship Attorneys at Ross & Shoalmire, P.L.L.C. can help families evaluate whether Supported Decision-Making, a Power of Attorney, or Guardianship provides the right level of protection.

What Is a Supported Decision-Making Agreement?

A Supported Decision-Making Agreement is a written arrangement in which an adult with a disability chooses a trusted person, called a supporter, to help them make everyday life decisions. Unlike Guardianship, entering into a Supported Decision-Making Agreement does not transfer the adult's decision-making authority to the supporter.

The supporter helps gather information, explains options, and assists in communicating the decision, but the adult remains the one who decides.

How Supported Decision-Making Became Law in Texas

In 2015, Texas enacted the Supported Decision-Making Agreement Act, now found in Chapter 1357 of the Texas Estates Code, becoming the first state to formally recognize Supported Decision-Making in law. The law's stated purpose is to give adults with disabilities a less restrictive option than Guardianship when they need help with decisions but are not legally incapacitated. 

What a Supporter Can (and Cannot) Do

The law is specific about the supporter's role, and that specificity is what makes the arrangement different from an informal family understanding.

Assisting With Information and Understanding

A supporter can help the adult obtain and understand information relevant to a decision, including medical, psychological, financial, educational, or treatment records when appropriate authorization is in place. The supporter can also help the adult understand available options and communicate a decision to people such as medical providers or service professionals.

What Supporters Are Not Allowed to Do

A supporter cannot make decisions on the adult's behalf. The agreement exists to support the adult's own decision-making, not to substitute the supporter's judgment for it. Texas law imposes fiduciary duties on the supporter, including duties to act in good faith and within the authority granted by the agreement, and includes safeguards addressing suspected abuse, neglect, or exploitation.

Who Can Use a Supported Decision-Making Agreement?

This tool is not limited to one age group or one type of disability, which is part of why it has become so widely useful.

Adults With Disabilities Turning 18

Parents of a young adult with an intellectual or developmental disability often assume Guardianship is the only option once their child turns 18. For many young adults who can express their own wishes with some support, a Supported Decision-Making Agreement preserves far more independence while still giving a chosen parent or other trusted adult a formal framework for providing decision-making support.

Aging Parents Who Can Still Make Their Own Decisions

An aging parent who meets Texas's statutory definition of an adult with a disability but is not considered incapacitated for Guardianship purposes may also be able to use a Supported Decision-Making Agreement when assistance with decisions would be helpful. Because either party can terminate the agreement, and Texas law provides additional circumstances in which it ends automatically, the arrangement remains more flexible than Guardianship.

How to Create a Supported Decision-Making Agreement

The agreement must be entered into voluntarily, without undue influence or coercion, and signed in front of either two witnesses or a notary. If witnesses are used instead of a notary, Texas law requires at least two witnesses who are at least 14 years old. Texas law provides a statutory form identifying areas in which the supporter may assist and containing required notices concerning the supporter's duties and reporting suspected abuse.

While the form itself is publicly available, families dealing with a more complex situation, such as coordinating the agreement with a Special Needs Trust or existing Estate Planning documents, benefit from having an Attorney review the full picture rather than filling out the form in isolation.

Built-In Safeguards Against Abuse

Texas law includes a mandatory reporting safeguard. A person who has received a copy of the agreement or knows that one exists and has cause to believe the adult is being abused, neglected, or exploited by the supporter must report the suspected conduct to the Texas Department of Family and Protective Services.

This statutory reporting requirement provides an additional safeguard that may not exist in a purely informal family arrangement.

Supported Decision-Making vs. Guardianship vs. Power of Attorney

These tools are not interchangeable, and choosing the wrong one can leave a family without the protection they actually need. 

• Guardianship can transfer or restrict specific decision-making rights and give those powers to a court-appointed guardian, with the extent of those restrictions depending on whether the Guardianship is limited or full.
• A Power of Attorney allows an adult with the required legal capacity to authorize an agent to act on the adult's behalf within the authority granted by the document.
• A Supported Decision-Making Agreement works differently from both. It is designed for an adult with a disability who retains decision-making authority but wants assistance understanding information, considering options, or communicating choices.

Families weighing these options as part of a broader Estate Planning strategy, particularly one involving a family member with an intellectual or developmental disability, should discuss all three with an Attorney before assuming Guardianship is the default answer.

Arkansas Families: Where the Law Stands

Arkansas does not currently have a Supported Decision-Making Agreement statute equivalent to Texas Estates Code Chapter 1357. Arkansas lawmakers considered such legislation in 2021, but the bill did not become law. Arkansas Guardianship law does, however, require courts to evaluate the feasibility of less restrictive alternatives and allows a court to dismiss a Guardianship proceeding when those alternatives are feasible and adequate to meet the person's needs.

The experienced Probate and Guardianship Attorneys at Ross & Shoalmire, P.L.L.C. are licensed in both Texas and Arkansas. We can help your family sort out which protections actually apply, depending on where a loved one lives and where their decisions will need to be honored.