Legal Options When a Loved One’s Capacity is Diminishing
As your loved one ages or faces cognitive decline due to illness or injury, their ability to make sound financial and medical decisions may decrease. Diminished capacity can lead to serious legal and financial complications if the right safeguards are not in place.
Families often wonder: What legal options are available when a loved one can no longer make decisions? Though not the only options, here are three options in Texas:
Power of Attorney (POA)
Supported Decision-Making Agreement (SDMA)
Court-Appointed Guardianship
Understanding these options can help ensure your loved one’s affairs are handled correctly while preserving their rights and dignity.
Power of Attorney: A Preventative Approach
A power of attorney (POA) is a legal document that allows a competent individual (the “principal”) to appoint a trusted person (the “agent”) to handle financial or healthcare decisions on their behalf.
Capacity Requirements for a Power of Attorney
For a power of attorney to be legally valid, the principal must:
Understand what a POA is and the authority it grants.
Be of sound mind at the time of signing.
Important: If your loved one is already showing signs of severe memory loss or confusion, they may not have the legal capacity to execute a POA. A caretaker or family member cannot create a power of attorney for them—only the individual themselves can make this decision while they still have capacity.
Why Timing is Critical
By the time you notice your loved one’s cognitive decline, it may be too late for them to execute a POA. This is why estate planning should be done early, ensuring these documents are in place long before they are needed.
Supported Decision-Making Agreement (SDMA): A Less Restrictive Alternative
A Supported Decision-Making Agreement (SDMA) is an option for individuals who need assistance but still retain some capacity to make decisions.
Capacity Requirements for an SDMA
To sign an SDMA, the individual must:
Understand that they are choosing a supporter to assist in decision-making.
Have the ability to communicate their preferences.
How an SDMA Works
Unlike a POA, a supported decision-maker cannot make decisions on behalf of the individual. Instead, they can:
Assist the individual in understanding options.
Access financial and medical information to help with decision-making.
An SDMA is a great option for individuals with mild cognitive impairment who still wish to maintain control over their affairs but need guidance.
Court-Appointed Guardianship: A Last Resort
If a loved one no longer has capacity and no POA or SDMA is in place, families may need to seek court-appointed guardianship. Guardianship is the most restrictive legal option and should only be pursued when absolutely necessary.
Types of Guardianship in Texas
🔹 Guardian of the Person – Manages healthcare and personal decisions, such as living arrangements and medical care.
🔹 Guardian of the Estate – Handles financial matters, including managing assets and paying bills.
Requirements for Guardianship
The Texas guardianship process involves several steps to ensure the protected person’s rights are not unnecessarily removed. Before granting guardianship, the court requires:
Exploration of Less Restrictive Alternatives – Courts require proof that an SDMA or POA is not feasible.
Background Checks – Prospective guardians must pass criminal background screenings.
Mandatory Training – Guardians must complete a state-certified training program on responsibilities.
Bond Requirements – A financial bond may be required to protect the incapacitated person’s estate.
Court Oversight & Reporting Requirements
Once guardianship is granted, the guardian must:
Submit annual reports on the person’s well-being.
File financial accountings if managing assets.
Maintain compliance with court rules and oversight.
Because guardianship removes significant legal rights from an individual, Texas courts only approve it when absolutely necessary.
Why It’s Important to Consult a Texas Guardianship Attorney
Navigating the legal complexities of diminished capacity, guardianship, and estate planning requires careful consideration. An experienced Texas guardianship attorney can help you:
Determine the best legal option for your loved one.
Ensure compliance with Texas law.
Avoid unnecessary court intervention.
The earlier you plan, the more options you have. If you have a loved one showing signs of cognitive decline, don’t wait—contact a Texas estate planning attorney today to discuss your legal options.
