Supported Decision-Making Agreements, Powers of Attorney, Guardianship, Oh My!

As your child approaches age 18, the world of transition can be overwhelming.  On their eighteenth birthday, your child becomes a legal adult whether they can function as such.  One of the biggest challenges facing parents with children who have special needs is determining how best to support the child in adulthood.  The Texas Legislature has placed some alternatives to guardianship, but the field is still murky and confusing.  Let’s take and unpack the different options. 

First, you can have your child sign a “Supported Decision-Making Agreement.”  This is basically an agreement which puts doctors, financial institutions, and anyone else that your child does business with on notice that your child wants and needs assistance in making decisions.  This document does not allow parents to act alone on behalf of their child but does allow them to be present for appointments with physicians and participate in ARD meetings.  For your child to sign one of these documents, the child must be able to understand the ramifications of the document.  While Supported Decision Making Agreements can be helpful, they don’t work for everyone. 

Second, there are Durable and Medical Powers of Attorney.  Powers of Attorney are great documents, because they allow you to act for your child whether they are present or currently can answer questions.  However, like with the supported decision-making agreement, your now adult child must have the legal capacity to execute the documents.  That means they must understand the document and the possible consequences of signing it.  The biggest issue with both powers of attorney and supported decision-making agreements is that they do not provide any protection for your child in the case of others taking advantage of them. This is where Guardianship comes in. 

Guardianship removes the ability of your child to enter into contracts on their own and instead gives that responsibility to the Guardian.  Because this involves taking rights away from a person, the court must be involved and thus can be very costly. If you have a child approaching 18, you should discuss all options with an attorney who practices Guardianship and Estate Planning.