The following is a brief explanation of some of the documents that should be considered for use in your estate plan:
- Statutory Durable Power of Attorney
- Health Care Power of Attorney
- Directive to Physicians
- Revocation of Power of Attorney
- Declaration of Guardian Form
- Broad Form HIPAA Release
STATUTORY DURABLE POWER OF ATTORNEY
The Statutory Durable Power of Attorney is designed to allow the designated person or persons to manage your financial affairs should you become mentally or physically unable to do so. This Power of Attorney is a relatively new form which was created by the Texas Legislature in 1993 and revised almost every time the legislature sits.
HEALTH CARE POWER OF ATTORNEY
The Health Care Power of Attorney allows the designated person or persons to consent to medical care on your behalf should you suffer an injury or become mentally or physically disabled. The Health Care Power of Attorney is designed to become effective if you become unable to make your own health care decisions and that fact is certified in writing by your physician. The agent you appoint may consent, refuse to consent or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent’s authority begins when your doctor certifies that you lack the capacity to make health care decisions. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you do.
DIRECTIVE TO PHYSICIANS
The Directive to Physicians (also known as a “Living Will”) typically requests your doctor to follow the instructions of your agent appointed in your Health Care POA and sets forth which of two choices you prefer in the event of a terminal illness or irrevocable condition. This document states whether your agent should consider such steps as disconnecting any life support systems if you are suffering from an incurable or irreversible condition caused by injury, disease, or illness certified to be a terminal condition by two physicians. These actions may be taken only if the application of life-sustaining procedures would serve only to artificially prolong the moment of your death and where your attending physician determines that your death is imminent or will result within a relatively short time without the application of life-sustaining procedures.
REVOCATION OF POWER OF ATTORNEY
The document entitled “Revocation of Power of Attorney” revokes an existing power of attorney. For the revocation to be effective, it is important that this document be filed of record in the deed records of each county in which an original Power of Attorney was filed.
DECLARATION OF GUARDIAN
The Declaration of Guardian form is designed to allow you to designate who will be allowed to serve as the guardian of your person and of your estate should one ever need to be appointed. You may also declare that you do not want a particular person to serve as your guardian. Hopefully, you will never need to have a guardian appointed for you, but if you do, the judge will be aware of your thoughts and desires by use of this form.
A trust is created by the owner (Grantor) of property by transferring property (called the res) to a second person (trustee) for the benefit of a third person (beneficiary). The transfer should be documented in writing. A trust can be created in a will or during life. Sometimes the first transfer is made by the owner to himself for his own benefit; this is permitted if some other person is also ultimately named a beneficiary. A trust is also sometimes called a living trust, revocable trust or irrevocable trust. A living trust is the same thing as a revocable trust: meaning the person creating the trust has the right to amend, destroy or revoke the trust during the grantor’s lifetime while competent. If a transfer cannot be revoked it is called irrevocable. Under Texas law a trust may be revoked by the grantor unless the terms of the trust state that it is irrevocable.
Either a simple trust or a gift under the Uniform Transfers to Minors Act (which functions as a statutorily created trust) within your will is advisable if you have minor children in order to avoid the need for a guardianship. You will still want to name the persons you want to assume responsibility for the care and raising of your children. However, the local District Court with family law jurisdiction will ultimately decide who will have responsibility for the care of your children. A Will is advice to the Court in this instance, not controlling.
A trust can be made during life (a living trust) or upon death (a testamentary trust), usually by means of a will. The use of trusts in estate planning is an ancient practice with many different uses and techniques. Because of the flexibility of trusts, the documents for such can be very complex and expensive but do not have to be so. Trusts are highly useful: when land is owned in more than one state to avoid the need for a second probate in the foreign state; when a parent has children from a prior marriage and wishes to clearly provide for use of property by the other spouse and the ultimate gifting of that same property to the parent’s children and to minimize the potential for disputes in probate, when a person has a family history of illness, or merely has a very strong desire for privacy.
Use of a trust should not be expected to decrease the total cost of estate planning and administration. A trust must be funded in order to be useful and requires ongoing review and care to make sure after-acquired property is placed into the trust. A trust cannot be used to manage property not placed into it unless a means is provided to transfer those assets into the trust. It is possible to give another person the power to place property into the trust by use of a Power of Attorney during your life or by placing your property into a trust after your death. Probate in Texas is highly simplified process compared to many other states. The cost of a will and then to later “probate” the will is often less than the cost to create and then administer a revocable trust.
BROAD FORM HIPAA RELEASE
A Broad Form HIPPA release is used to obtain medical information from unknown healthcare providers. Your healthcare providers that you see on a regular basis will obtain from you the list of persons you are willing to let see your medical information. This generic broad form permits your loved ones to obtain from healthcare providers your medical information in the event of an emergency.
Let an experienced Estate Planning attorney, help you with all of your life planning legal needs. Mr. Kennedy serves clients in Dallas, Fort Worth, Arlington, Mansfield, Grand Prairie, and all surrounding areas in Tarrant and Dallas Counties.
*The Information provided in this website by Arlington elder care attorney Charles Kennedy is meant to be general in nature, not as advice for the exact circumstances you may face.