Disability Plannng

In Texas, the appointment of a guardian is a legal process undertaken when an individual is unable to manage their personal or financial affairs due to age, illness, or disability. However, with foresight and proper planning, one can often avoid the need for guardianship, maintaining control and privacy in personal matters.

Here are steps you can take to prevent the necessity of a guardianship:

1. Create a Durable Power of Attorney:

A Durable Power of Attorney (DPOA) allows you to appoint an agent to manage your financial affairs if you become incapacitated. This legal document can be tailored to your specific needs, granting as much or as little power as you see fit.

2. Establish a Medical Power of Attorney:

Similar to a DPOA, a Medical Power of Attorney (MPOA) allows you to designate an agent to make healthcare decisions on your behalf should you become unable to do so.

3. Draft a Directive to Physicians:

A Directive to Physicians, commonly referred to as a Living Will, outlines your preferences for medical treatment in scenarios where you might be unable to communicate your wishes.

4. Set Up a Revocable Living Trust:

A Revocable Living Trust is a flexible estate planning tool that allows you to manage your assets during your lifetime and provides instructions for their distribution upon your death or incapacity. Unlike a will, a living trust operates during your lifetime, allowing for the management of your assets should you become incapacitated.

5. Designate a HIPAA Authorization:

By signing a Health Insurance Portability and Accountability Act (HIPAA) authorization, you ensure that your chosen individuals can access your medical information, facilitating informed decision-making on your behalf.

6. Engage in Family Discussions:

Open communication with family members and loved ones about your wishes and the plans you have put in place is crucial. It helps prevent confusion and ensures everyone is on the same page should a crisis occur.

7. Consult with an Experienced Attorney:

Navigating the legal landscape of estate planning and incapacity planning can be complex. Consulting with an attorney experienced in these matters is invaluable for ensuring that your plans are comprehensive and legally sound.

Proactive planning is key to maintaining autonomy and ensuring your wishes are respected, regardless of what the future holds. Our law firm specializes in crafting personalized estate and incapacity planning solutions. If you have concerns about guardianship or wish to explore preventive measures, we invite you to contact our office. Our seasoned team is here to provide the guidance and peace of mind you need as you plan for the future.

Many people under define / underestimate their status as a small business owner. We often hear statements like this at the office:

• I only own 2 rent houses.
• I only do bookkeeping as a side gig.
• I only have 1099 / contract employees.
• I only lease these 50 acres to a local farmer.
• I only am helping my brother launch his business– am only a 25% owner.
• I only….
• I only….
• I only….

All of the above statements and many others just like them equal business ownership and need to be planned for in a very specific manner

If you are a small business owner, you probably spend a lot of your time in the day-to-day work of your business and when you take time to work on your business, you are spending time figuring out how to stay open and stay profitable. One of the last things on your mind (if it is on your mind at all) is what will happen if I am disabled or when I die?

The problem is that you are likely to be disabled at some point, even if only temporarily, and you will die one day. Both of these events pose major risks for your business, your employees, and your loved ones if you have not thought about AND planned for what happens in the event of your disability and death.

Risks of not having a business succession plan:

1. Business momentum will be lost, including up to, total cessation of the entire business.
2. Business value will drop QUICKLY and possibly entirely during a period of reduced or no operation.
3. Employees may not be able to be paid.
4. Business payments/deposits may not be able to be received/deposited.
5. Business vendors may not be able to be paid.
6. The business will not be able to be sold (if applicable).
7. Courts will likely need to be involved to determine who has authority to act in the absence of the business owner.

What you should be planning for in a business succession plan:

1. Who can run the business in the absence of the owner?
2. How can immediate access be given to the person(s) who have been selected as temporary or permanent successors?
3. What will happen to the business in disability or death?
4. How will employees and other expenses be paid?
5. Will the business be sold at your death, and if so how and who receives the proceeds?
6. How can lengthy, expensive, and potentially difficult court proceedings be avoided?

This past year, we have helped more clients than I would like try to retain business assets that once belonged to a loved one who passed away. If you are business owner and have not formally created a business succession plan – do not keep putting this on the bottom of your priority list.

“Only put off until tomorrow what you are willing to die having left undone” ― Pablo Picasso

Contact Crain & Wooley to create a succession plan for your small business.

Here at Crain & Wooley, we constantly battle two things: 

1. Bad advice given by others who do not specialize in Estate Planning
2. Procrastination by those who know they need to update or create an estate plan but put it off for a later date/age

Estate Planning is not reserved for individuals who fall into older demographics. There is a common misconception that only older individuals should plan for their potential disability. This is entirely wrong because you may encounter unanticipated medical events that affect you, your spouse, or both of you placing you into a life-threatening condition. If we knew when these events would occur, we would likely try to avoid them. This is simply not the case, and the best way to prepare for the unexpected is by having the proper disability planning documents in place. These documents consist of appointing Medical and Financial Power of Attorneys and by executing a Declaration of Guardian in advance of a medical emergency.  

A Medical Power of Attorney allows for your appointed “Agent” to make decisions for you, in consultation with your doctors and physicians, if you are unable to do so due to being mentally or physically incapacitated. Appointing an Agent through a Financial Power of Attorney allows your Agent to work with financial institutions and sign documents, contracts, pay bills, and handle affairs within your estate. At Crain & Wooley, we recommend that both single and married individuals of all ages should have these documents updated to avoid unnecessary burdens to decision-making during already emotionally trying times.

If you do not have both Medical and Financial Power of Attorneys in place and you become incapacitated, then your loved ones will have to initiate a Guardianship proceeding through the courts to give individuals legal authority to manage your affairs for both your estate and your person. It can take months to get in front of a judge and result in large legal bills just to allow someone to access your financial accounts or to make medical decisions on your behalf. All of this can be avoided with up to date Power of Attorney documents. The judge does not factor in what age the proposed incapacitated ward is. The judge will assess the need for guardianship by making a legal decision based on the level of incapacity of the proposed ward. People of ALL AGES can be deemed incapacitated and without the proper planning, your assets and health could be at risk due to procrastinating your estate plan.

To learn more about disability planning, contact us with your questions today.