08 Mar 9 Documents Other Than a Will to Consider in Estate Planning
Most people think of a will when it comes to estate planning, but there are many other documents to consider in basic estate planning depending on your individual situation. This list of documents (exclusive of a will) includes, but is not limited to, the following:
- Financial Power of Attorney.
This document is usually general and covers most financial issues during the life of the principal. The document must say that it is durable so it is effective even if you are disabled. The power of attorney terminates at death. It could be limited to only certain matters. Texas has a statutory form, but there are many items not covered by this (even though most think it covers everything). If you own real estate, the document should be recorded in the county where the property is located. The power of attorney can be effective immediately or spring upon disability.
- Medical Power of Attorney.
This document gives your agent the authority to make health care decisions for you when you are no longer capable of making them yourself. You can limit the extent of the power of this document. Texas has statutory language for this document. The agent cannot agree to (a) an abortion, (b) hospitalize you for mental health services, (c) convulsive treatment or (d) refuse care that will keep you comfortable.
- Directive to Physicians (Living Will).
A living will (called a directive to physicians in Texas) lets your physician know what type of medical care you want (particularly at the end of life) if you are unable to make decisions for yourself. For example, if the doctor determines your condition is terminal and that you are likely to die within 6 months, the document could indicate you want to die as gently as possible instead of being placed on a breathing machine or being given food and water artificially.
- Out-of-Hospital Do-Not Resuscitate Order.
If you are not in a hospital and your heart stops beating, this document indicates you are refusing (a) defibrillation, (b) artificial ventilation, (c) advanced airway management, (d) cardio-pulmonary resuscitation (CPR) and (e) other life-sustaining treatments. However, medical powers of attorney are not as limited.
- Declaration of Guardian in Advance of Later Need.
Pursuant to the Texas Estates Code, the court must make a reasonable effort to consider the incapacitated person’s preference as to whom they desire to serve as their guardian. Guardianship supersedes a power of attorney. Thus, if there is a dispute between those who seek guardianship, this document may show your preferences.
- HIPPA Authorization.
The HIPPA Privacy Rules are to protect privacy of medical records and other health information and limits what can be disclosed without an individual’s authorization. An authorization form can be signed to give authority to whomever you desire to have access to all your medical records (wherever located) and it can even be effective after your death (so healthcare providers cannot hide behind privacy laws). In contrast, medical powers of attorney terminate at the date of death of the principal.
- Disposition of Bodily Remains.
This document lets you choose the person you want to be in charge of your body after your die. The named agent must also sign the document. This is particularly important if others (i.e. children) have differences of opinions as to what happens to your body. For example, you might want cremation and a child might want to have a traditional burial for you. You may give instructions to the person you trust to make the decision and follow your wishes.
- Revocable Living Trust.
There are several advantages of a revocable trust in comparison to a will including:
(a) probate avoidance (instead of going through the process of the court approving a will);
(b) continuity of management – if you become incapable of managing your affairs, the trust will continue to be used for your benefit;
(c) access to assets after death – trustee or successor trustee can pay bills, taxes, etc. quickly and sell property without the delay of a court order;
(d) privacy – a will is a public record whereas a trust is not;
(e) no further delay if original will is lost – if an original will is lost, the probate process is often longer while there is no delay with a trust; and
(f) could be less expensive – when you add the cost of preparing a will plus the cost of probating a will, it is often less to do a trust.
- Irrevocable Trust.
There are numerous types of irrevocable trusts created for various reasons. This could range from tax planning such as charitable trusts, life insurance trusts and spousal lifetime access trusts to disability planning trusts such as special needs trusts, qualified income trusts and Medicaid asset protection trusts.
If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.