Integrating Supported Decision-Making into Advanced Directives and Estate Planning Documents: Empowering Seniors for Autonomous Aging in Place

Supported Decision-Making (SDM) is emerging as a vital innovation in elder law, offering seniors and their families a way to maintain control over life decisions even as cognitive or physical challenges arise. At its core, SDM is a voluntary process where an individual, such as a senior with early dementia or age-related impairments, selects trusted supporters (family, friends, or professionals) to assist in understanding complex information, weighing options, and communicating choices, without relinquishing final decision-making authority.  These supporters, often referred to as a person's support network, might be formal agents with authority to make decisions, or simply advocates and/or advisors, creating a collaborative framework tailored to the senior’s needs.  

Over the past decade, these agreements have evolved from relatively simple documents that merely identified supporters to substantive tools that integrate with detailed, advanced directives to weave a robust safety net for vulnerable persons and support seniors holistically.  Advance directives, once limited to health care and often focused solely on end-of-life decisions, have evolved to encompass financial management, aging-in-place preferences, dementia care, guardianship avoidance, and private care agreements.  SDM bridges gaps in standard planning documents and strategies,  fortifying them while offering additional layers of protection, whatever the planning objective. This shift relieves caregivers of the more difficult tasks of setting or balancing goals, allowing them to concentrate on the tactical execution of pre-established wishes.  

As our blog has explored in "Rethinking Elder Abuse Strategies: How Prophylactic Planning Can Safeguard Autonomy and Aging in Place," good planning adopts a range of solutions to address problems, weaving a safety net against failure. Incorporating SDM into advanced directives and other planning solutions can support a senior in ways no other single plan or effort could. This article defines SDM, its significance for seniors and families, and how to integrate it into advance directives and estate planning documents for holistic planning. 

SDM for Seniors and Their Families: A Path to Empowered Choices
For seniors, SDM represents a shift from paternalistic and institutional models to a partnership model, enabling them to remain engaged in decisions about healthcare, finances, and daily living despite challenges such as mild to moderate cognitive impairment. It builds self-confidence through skill-building in problem-solving and goal-setting, while studies show it enhances independence and quality of life. Families benefit by serving as supporters without assuming full control, avoiding the resentment or burnout common in informal caregiving. In practice, SDM can adapt over time, beginning with advice on routine matters and evolving as needs change. This adaptability makes it ideal for aging in place, where home-based decisions like hiring aides or modifying living spaces are key. Unlike rigid advance directives focused on medical crises, SDM encourages ongoing dialogue, aligning with the blog's emphasis on preventing exploitation through proactive tools.
For more information regarding the risks and consequences of guardianship, and how to avoid unnecessary and risky institutionalization, attend an Aging in Place Planning Workshop. Benefits of Integrating SDM with Advanced DirectivesAdvanced directives, such as living wills or healthcare powers of attorney, traditionally address end-of-life preferences but often overlook everyday or evolving needs. By integrating SDM, these advance directives become more dynamic:

• Holistic Coverage: SDM expands beyond medical choices to include financial (e.g., budgeting for home care), aging in place, cognitive care, guardianship utilization, caregiver agreements, as well as other legal decisions (e.g., asset protection), filling gaps in standard directives.

• Dementia Care:  By integrating advanced directives for dementia with SDM, seniors provide robust direction as conditions evolve and needs change. 

• Guardianship Prevention: It serves as an alternative or supplement to guardianship, reducing court intervention risks as highlighted in our "Guardianship Abuse" article.

• Family Collaboration: Supporters can assist in understanding complex options, like experimental treatments or mood-altering drugs, ensuring decisions reflect the senior's values.

• Adaptability for Aging in Place: SDM directives and agreements can specify preferences for home-based support, avoiding institutionalization, or preferring the least institutional setting possible for care.
• Care Choices: SDM directives can create different considerations for care choices, often made based on expense, convenience, and/or proximity, requiring instead consideration of factors that are more reliable indicators of favorable outcomes with reduced risk.  

Outcome Benefits

This integration is not just a better process, though it also offers benefits such as reducing stress and minimizing disputes.  Empowering seniors to direct their care trajectory and foster resilience against cognitive changes means more positive outcomes with less health, financial, and legal risk. The contrast in possible outcomes could not be more apparent.  Traditional guardianship, for example, can strip rights and lead to abuse; SDM promotes self-determination by treating support as an enhancement of capacity, not a replacement, thereby nicely resolving the risks of institutional guardianship.  Similarly, unlike traditional aging-in-place approaches, which often abandon autonomy for convenience, SDM empowers directed decision-making, leveraging home care to prevent short-term institutionalization. For instance, a senior with mobility issues might use SDM to choose home-based physical therapy over a rehabilitation stint in a nursing home, supported by a caregiver agreement incentivizing in-home care. 

While traditional care-site selection often prioritizes proximity or ease, SDM encourages a robust investigation of factors that impact outcomes, including for-profit status and private equity ownership of institutions. Care roles shift too: SDM builds a strategic network of supporters rather than a monolithic, almost dictatorial decision-maker, enhancing coordination and reducing the risk of caregiver burnout. In dementia care, traditional reactive, costly, institution-focused approaches contrast with SDM-driven, proactive, home-centric strategies that use lifestyle and behavioral therapies and the implementation of supportive technology to prevent cognitive decline, prioritizing physical, psychological, and emotional support in the least institutional setting possible.  For seniors, this means retaining dignity and independence, allowing them to age in place with confidence. For families, it fosters collaborative roles, reducing the emotional burden of sole decision-making and preventing conflicts. 

Legal Frameworks: State Variations and RecognitionSDM is rooted in human rights principles, such as the UN Convention on the Rights of Persons with Disabilities, and is legally recognized in states like Colorado, where agreements are presumed valid unless made under guardianship. In Colorado, SDM can complement powers of attorney or conservatorships, with agreements requiring notarization or the presence of witnesses to ensure voluntariness. Other states, such as Delaware and Texas, have similar statutes. At the same time, Missouri and Ohio may honor SDM informally through limited guardianships and less intrusive/restrictive alternatives. Nationally, the Administration for Community Living (ACL) promotes SDM as a rights-based model. When incorporating into directives, ensure compliance: agreements can't imply incapacity and must include provisions for mistreatment reporting.Creating an SDM with Integrated Advanced DirectiveTo build this, start with a standard directive and add SDM elements:

• Select Supporters: Choose trusted individuals based on strengths (e.g., one for health, another for finances.  Consider supporters based on strategic or task-oriented involvement.

• Define Roles and Scope: Specify assistance areas, like evaluating treatment risks or communicating with doctors, without decision-making power.

• Holistic Integration: Include preferences, goals, objectives, and specific directions or guidelines in making or implementing decisions (e.g., for experimental treatments, authorizing trials if benefits outweigh risks or for psychosocial care, prioritizing non-pharmaceutical drug interventions, but only for hallucinations or ideations that create a threat of harm to yourself or others).

• Legalize and Review: Notarize, align with POAs, and update annually.

• Periodic Review and Revision:  Review your directions ansd dupporters to ensure that your wishes are clear, correct, and supported by the appropriate people. 

Review the standard and specific advanced directives we have offered as models, revising them as necessary or appropriate.  Consult with an elder lawyer to ensure integration with your estate planning documents, and with a financial advisor to ensure availability of funds to implement decisions.  Finally, discuss your planning goals, objectives, conditions, and needs with a Medicare Specialist to ensure you are maximizing your supporters' ability to fulfill your wishes.  

 

Challenges and Safeguards
Challenges include limited state recognition, risks of undue influence, and access barriers for isolated seniors. Safeguard with multiple supporters, revocation clauses, and attorney oversight.
While this article has provided a general examination of SDM and its integration into advanced directives, it is by no means comprehensive. The landscape of decision-making tools evolves rapidly, influenced by legal reforms, state policies, and individual circumstances, and no single resource can fully capture it. Therefore, remain vigilant and continuously educate yourself through reliable sources such as the ACL, AARP, and local elder law attorneys, while regularly evaluating your personal situation to identify potential risks. By combining awareness with tools, seniors and their families can better safeguard independence and thrive as they age in place. For ongoing support, consult professionals and stay informed.  Your security depends on proactive engagement.

Navigating Guardianship and Trusts: Lessons from In re Gregg for Aging-in-Place Planning

When planning to age in place, seniors and their families must carefully navigate estate planning tools like trusts and guardianships, especially when cognitive decline, such as dementia, raises questions about capacity. The Texas Court of Appeals’ decision in In re Gregg, No. 07-25-00035-CV (Tex. Ct. App. May 29, 2025) offers critical lessons for protecting assets and autonomy while ensuring care needs are met. This case highlights the interplay between guardianship powers, trust creation, and jurisdictional limits, underscoring the need for proactive planning to avoid legal disputes that can disrupt aging-in-place goals.

We advocate for trust-based strategies and clear legal frameworks to support seniors, particularly those with dementia, in maintaining control over their assets and care, thereby preventing such disputes. This article explores the In re Gregg case, its implications, and actionable steps for Ohio and Missouri families to secure their future.

Case Background: A Family Dispute Over Assets

Kenneth Gregg, a Texas farmer with substantial farmland, faced health challenges, including dementia. In 2023. His condition prompted significant estate planning decisions and a subsequent legal battle that reached the Texas Court of Appeals.

Here’s a summary of the case:

• Initial Transfers and Guardianship: In June and October 2023, Kenneth transferred land and cattle to his son, Monte. In December 2023, his daughters sought temporary and permanent guardianship of Kenneth’s person and estate due to his dementia. On December 22, 2023, the trial court appointed daughter Lucretia as temporary guardian of Kenneth’s estate, with limited powers to possess estate assets, spend funds for Kenneth’s daily care, and preserve assets (Tex. Est. Code Ann. § 1151.001).
• Trust Creation: In July 2024, despite his dementia and temporary guardianship, Kenneth created a trust, naming Monte as trustee and transferring all remaining property to the trust. Later that month, Lucretia was appointed permanent guardian of Kenneth’s estate.
• Dispute and Trial Court Order: Lucretia filed a motion in the guardianship action to recover equipment and proceeds, targeting Monte individually, not as trustee. On December 30, 2024, the trial court ordered Monte to return the assets, asserting authority over him in all capacities, including as trustee.
• Appeal via Writ of Mandamus: Monte sought a writ of mandamus from the Texas Court of Appeals, arguing that the trial court’s order was invalid because: (1) it was an impermissible prejudgment attachment, (2) it improperly targeted him as trustee when he was sued only individually, (3) the motion was filed incorrectly within the guardianship action, and (4) the order was vague and overbroad.

Court of Appeals’ Ruling: A Focus on Jurisdiction

The Texas Court of Appeals addressed only Monte’s second argument, finding it dispositive, and conditionally granted his writ of mandamus, ordering the trial court to vacate its return order. The court’s reasoning centered on two key issues:

1. Kenneth’s Capacity to Create the Trust:
   • The court applied Texas Estates Code § 1151.001, which presumes a ward retains all legal rights not explicitly assigned to the guardian. The December 2023 temporary guardianship order limited Lucretia’s powers to possessing assets, spending for Kenneth’s care, and preserving the estate, without prohibiting Kenneth from creating a trust or transferring property.
   • Despite Kenneth’s dementia diagnosis, the court found no evidence that the guardianship order removed his right to create a trust. Thus, the July 2024 trust was validly created, and Monte, as trustee, held legal title to the assets.
2. Jurisdictional Error:
   • Lucretia’s motion was filed against Monte in his individual capacity, not as trustee. The trial court’s order, however, extended to Monte in all capacities, including as trustee, without him being a party to the suit in that role.
   • The court ruled that this overreach rendered the order void, as the trial court lacked jurisdiction over the trust. A writ of mandamus was appropriate because Monte had no adequate appellate remedy, and the trial court’s action was a clear abuse of discretion.

The court directed the trial court to vacate the return order, protecting the trust assets from immediate recovery and highlighting the importance of precise legal procedures in guardianship disputes.

Implications for Aging-in-Place Planning

The In re Gregg case offers critical insights for seniors and families, particularly those in Ohio and Missouri, where aging-in-place planning is a priority:

1. Guardianship Limits and Retained Rights:
   • Like Texas, Ohio law presumes a ward retains rights not specifically assigned to a guardian (Ohio Rev. Code § 2111.02). If a senior with dementia creates a trust before or during a limited guardianship, it may remain valid unless the court explicitly restricts such actions. This underscores the importance of early trust creation to protect assets for aging-in-place needs, such as home care or modifications.
   • Lesson: Work with an elder law attorney to establish a revocable living trust before cognitive decline raises capacity concerns. This ensures assets are managed according to your wishes, even if guardianship becomes necessary.
2. Jurisdictional Precision in Legal Actions:
   • The court’s ruling emphasizes that legal actions must target the correct party and capacity (e.g., trustee vs. individual). In Ohio and Missouri, similar jurisdictional rules apply (Ohio Rev. Code § 2101.24; Mo. Rev. Stat. § 472.020). Failing to sue a trustee in their fiduciary capacity can invalidate court orders, delaying or derailing asset recovery.
   • Lesson: Ensure guardianship or trust disputes are filed correctly, with clear documentation of roles and capacities, to avoid costly legal errors.
3. Dementia and Capacity:
   • Kenneth’s dementia diagnosis in 2023 did not automatically revoke his ability to create a trust in 2024, as capacity is assessed at the time of the act (Tex. Est. Code § 1151.001). In Ohio, for example, the capacity to create a trust requires understanding the nature of the act and its consequences (Ohio Rev. Code § 5804.02). This highlights the urgency of planning before dementia progresses.
   • Lesson: Seniors with early-stage dementia should consult an attorney to assess capacity and create trusts or powers of attorney, ensuring control over assets for home care or other needs. Most laypersons conflate medical diagnosis with legal consequence; capacity and competency are questions of law, and they are determined legally by a judge. There are cases where doctors have deemed a person medically competent or capable, while judges have considered the person lawfully incompetent or incapacitated, and vice versa.
4. Family Dynamics and Disputes:
   • The conflict between Monte and Lucretia reflects common family tensions in guardianship cases, especially when dementia complicates decision-making. Trusts can mitigate disputes by clearly defining asset management roles.
   • Lesson: Communicate estate plans with family to reduce conflicts, and appoint trusted fiduciaries (e.g., trustees) to balance oversight and control.
5. Aging-in-Place Connection:
   • Aging in place requires financial security for home care, modifications, or aides. Trusts, like Kenneth’s, can protect assets from guardianship disputes, ensuring funds for in-home care.
   • Lesson: Integrate trusts with Medicaid planning to preserve assets for aging in place, avoiding the need for nursing home care, as seen in In re Gregg.

Call to Action: Secure Your Future Now

The In re Gregg case underscores the urgency of proactive estate planning to protect your assets and autonomy, especially with dementia risks. Take these steps today to ensure you can age in place with confidence:

1. Create or Update a Trust: Work with an Ohio or Missouri elder law attorney to establish a revocable living trust, preserving assets for home care and avoiding guardianship disputes. Ensure the trust aligns with state laws (Ohio Rev. Code § 5804.01; Mo. Rev. Stat. § 456.4-401).
2. Define Guardianship Powers: If guardianship is needed, specify limited powers to retain your right to manage assets, as Texas law allowed Kenneth to create a trust (Tex. Est. Code § 1151.001).
3. Appoint Trusted Fiduciaries: Name a reliable trustee or co-trustee, like Monte, to manage assets, and communicate plans to family to prevent conflicts.
4. Plan for Dementia Care: Consult resources like the Alzheimer’s Association 24/7 Helpline (800-272-3900, per your Admiral Nurse query) for caregiving support, and explore Medicaid programs (Ohio PASSPORT, Missouri MO HealthNet) to fund home care.
5. Review Legal Documents: Update powers of attorney, wills, and health care directives to reflect current wishes, ensuring clarity in case of incapacity.

Act now to safeguard your legacy and aging-in-place goals. Contact an Ohio or Missouri elder law attorney today to review your estate plan and protect your assets from disputes like those in In re Gregg.