Most people think of an estate plan as something that does not come into effect until after they die. This is partly true, but an estate plan also includes documents that will protect you while you are still living. Powers of attorney and advance medical directives are particularly important parts of a well-rounded estate plan.
Last Will & Testament
A last will and testament, usually referred to as simply a “will,” is the foundation of a good estate plan. Your will lets people know how you want your property to be handled after you pass away. It lets people know who will receive your property. It can even name a guardian for your children, if you pass away while they are still minors, and it can set up a trust to hold property for your kids until they reach a specified age.
Your will is also the document that designates a trusted person—whether a spouse, other family member, or a friend—to be the executor of your estate. The executor is in charge of making sure your instructions as stated in your will are carried out the way you want them to be.
Statutory Durable Power of Attorney
The power of attorney (also called the “statutory durable power of attorney” in formal legal terminology) is an important tool that allows you to give the power to a trusted person to make certain decisions for you while you are living. This power of attorney covers important financial and property transactions—basically any important decision other than medical decisions. A power of attorney becomes especially important if you are ever temporarily or permanently incapacitated and unable to make or articulate decisions for yourself.
Medical Power of Attorney
The medical power of attorney (also called the power of attorney for healthcare) is likewise important if you become incapacitated. Unlike the statutory durable power of attorney, however, this document does not give anyone the ability to make decisions for you if you are not incapacitated. If you are able to make decisions and to communicate your wishes to others, your designated agent (i.e. the person with medical power of attorney for you) cannot step in and make decisions for you and certainly cannot contradict your decisions.
It is important to understand that the medical power of attorney does not extend to life-or-death decisions. The medical power of attorney cannot, by law, grant anyone the power to tell a doctor to remove you from life support or to give a do-not-resuscitate (DNR) order.
Did you know that by law your spouse is not automatically entitled to information about your medical treatment and condition? The Health Insurance Portability and Accountability Act (HIPAA) also prevents adult children of elderly parents from accessing protected health information without being given written permission ahead of time. The only family members who are given automatic access to health information are the parents of minor children. (Note that parents of children who are older than 18, even if they are still providing care to these children, are not given automatic access to protected health information of their children.) This federal law touches the lives of practically everyone, yet most people do not understand the implications of it until there is a crisis.
Fortunately, there are some steps you can take to help ensure that the right people have access to your medical records in times of emergency. Having a medical power of attorney and a corresponding HIPAA release can let your doctors know who you want to be able to participate in medical decisions and have access to protected health information. Finally, it is a good idea to check with your usual health care providers (i.e. your family doctor and any specialists that you see regularly) to see if they have any specific policies with regard to HIPAA releases and access to protected health information.
The living will (known in legal terms as the directive to physicians and family surrogates) documents your wishes with regard to life support. This is a topic that most people feel very strongly about one way or the other. You’ve probably heard about the famous legal battles fought by (and among) the families of Karen Ann Quinlan, Terry Schiavo, and Casey Kasem over whether to keep their loved one alive on life support. No one wants their private family disputes to end up on the news. This is why having a living will is so important.
If you are suffering from a terminal illness (an illness that is expected to result in death within six months) or a chronic, irreversible condition (ex. coma or persistent vegetative state) and can only survive on life support, the default position that your medical providers will take is to keep you alive on life support. Not everyone wants this. But, even within close families, feelings about life-sustaining treatment may differ. It is a good idea to have an honest conversation with your family about what your wishes are. Having an estate plan that includes a living will can give you the peace of mind that your family will not have to agonize over whether you would want life-sustaining treatment to be given or withheld.
Declaration of Guardian
A guardian is someone who is appointed by a judge to care for someone who is not able to care for themselves and who is in fact a danger to their own health. A person who has become incapacitated due to a brain injury or due to declining mental health may need another person to make sure that they eat and take prescribed medications. They may need someone to help manage their finances and prevent unscrupulous people from preying upon them for money.
Most people would like to have a say in who is appointed as their guardian if it should come to that. But by the time a guardian is necessary, you may not have the ability to state your preferences. This is where the Declaration of Guardian in Advance of Need comes in. With this document, you can designate who you want to be named as your guardian if that becomes necessary. You can even designate one person to be in charge of your personal well-being and another person to be in charge of managing your finances and property.
You can also list person(s) who you do not want to be named as your guardian. The judge does not have to approve your choice for guardian, but the judge must not appoint anyone that you have specifically stated should not be your guardian.
Appointment of Agent for Disposition of Remains
It can be difficult to think about what you want to have happen to your body after you pass away. Nevertheless, having a plan in mind that you can communicate to your loved ones as part of your estate plan will help give you peace of mind. Under the Texas Health and Safety Code, certain people are given priority to determine how to dispose of a deceased person’s remains. In order of priority, they are:
1) the person named as agent in a written document signed by the decedent;
2) the decedent’s surviving spouse;
3) any one of the decedent’s surviving adult children;
4) either of the decedent’s surviving parents;
5) any one of the decedent’s surviving adult siblings;
6) any adult in the next degree of kinship to inherit the estate of the decedent
Notice that if the deceased had a document appointing an agent for disposition of remains, the person named as agent in that document has priority over all other family members listed in the statute. If you are in a committed relationship but not married to your partner, you may want to name him or her as an agent for disposition of remains because he or she does not have priority under the law otherwise. Or perhaps you have more than one adult child, and your children have different ideas about what should be done. With an appointment of agent for disposition of remains, you can give one child the power to make the decision to avoid fights between them after you’re gone.
As with most of the important decisions and documents in your estate plan, you should let your loved ones know what your wishes and preferences are while you are still living. You should also ask them if they will be comfortable making decisions about your estate and handling your affairs after you’ve passed. Assessing their willingness and ability to carry out your plans will help you and your estate planning attorney to create the best estate plan for you.