Power of Attorney

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.

Every few years, a story hits the headlines that highlights the importance of pro-active planning for times of permanent or temporary incapacity. We see families torn apart because opinions differ on how to care for a someone who is receiving medical care and unable to communicate for themselves. These disagreements can be stopped before beginning by naming a Medical Power of Attorney (agent), creating a Directive to Physicians and a Global HIPAA Release. Equally important to creating these documents is communicating with those named as agents regarding their duty and responsibility as an agent.

Let’s first start with a primer on what each document listed above accomplishes.

1. Medical Power of Attorney allows an agent to make medical decisions for the principal should the principal be unable to communicate with physicians.
2. Directive to Physicians (aka living will) proactively tells doctors if the principal wants to receive artificial life support like breathing machines. Note: A Directive to Physicians is not the same as a DNR. A DNR is much more draconian in action by excluding assistance such as CPR.
3. Global HIPAA Release permits a Medical Power of Attorney to talk with all doctors (present or past) in order to make well- informed medical decisions on behalf of the principal.

The overarching duty and responsibility of a Medical Power of Attorney (agent) is to make medical decisions, up-to and including, removal from life support should the principal be unable to communicate for him or herself. There is a lot of responsibility packed into that short sentence.

Communication between the agent and the principal BEFORE crisis time is of paramount importance so that the principal’s wishes are thoroughly understood. Very few like talking about times of illness or medical emergency, but the benefit of having such a frank conversation outweighs the potential emotional distress later. Here are some tips on what to talk about.

1. Medical history: are there any past medical conditions or treatments that an agent should be made aware?
2. Treatments for terminal or irreversible conditions (and the differences between the two conditions):
   • Terminal condition: a diagnosis from which the agent is expected to die within 6 months.
   • Irreversible condition: a diagnosis that prevents the agent from caring for him or herself and is expected to die without life-sustaining treatment.
3. Special requests: these should be noted in the Directive to Physician official document as well.
   1. Are there any spiritual end of life activities requested by the principal?
   2. Does the principal want the terminal or irreversible condition to be supported by 2 or more doctors?

• Does the principal want loved ones gathered prior to removal from life-support machines?
• Generally, what type of medical treatments does the principal agree to have: CPR, AED paddles, blood transfusions, palliative care but not life extending care, experimental treatments, intravenous antibiotics, etc.?

Talking with the named agent(s) about each of the medical documents is very important so that they clearly understand and have first-hand knowledge of the principal’s wishes regarding medical care. Contact Crain & Wooley if you have questions or concerns regarding naming an agent or being named AS an agent.

Naming a person as your financial power of attorney (agent) is an integral part of a comprehensive estate plan. This selection allows the agent to make important financial decisions on your behalf during times of potential incapacity. But what does it mean FOR the person named? There are certain duties and obligations assigned to your agent, and it is important that both parties understand these duties and obligations.

DUTIES AND RESPONSIBILITIES OF A FINANCIAL POWER OF ATTORNEY (AGENT)

When accepting the authority granted under a financial power of attorney, a fiduciary relationship is established with the principal (the person represented) and the agent. This is a special legal relationship that imposes duties which continue until the agent resigns or the power of attorney is terminated, suspended, or revoked by the principal or by operation of law.

The agent generally has the responsibility to:

1. act in good faith;
2. do nothing beyond the authority granted in the power of attorney;
3. act loyally for the principal’s benefit;
4. avoid conflicts that would impair the ability to act in the principal’s best interest; and
5. disclose your identity as an agent when you act for the principal by writing or printing the name of the principal and signing your own name as “agent” for that person.

In short, you are being named to stand in the shoes of the principal to act as they would act if they were able.

The Estates Code further enumerates the responsibilities of a financial agent. The Durable Power of Attorney Act (Subtitle P, Title 2, Estates Code) lays out specific instructions for agents:

1. maintain records of each action taken or decision made on behalf of the principal;
2. maintain all records until delivered to the principal, released by the principal, or discharged by a court; and
3. if requested by the principal, provide an accounting to the principal that, unless otherwise directed by the principal or otherwise provided in the Special Instructions, must include:
   • the property belonging to the principal that has come to your knowledge or into your possession;
   • each action taken or decision made by you as agent;
   • a complete account of receipts, disbursements, and other actions of you as agent that includes the source and nature of each receipt, disbursement, or action, with receipts of principal and income shown separately;
   • a listing of all property over which you have exercised control that includes an adequate description of each asset and the asset’s current value, if known to you;
   • the cash balance on hand and the name and location of the depository at which the cash balance is kept;
   • each known liability;
   • any other information and facts known to you as necessary for a full and definite understanding of the exact condition of the property belonging to the principal; and
   • all documentation regarding the principal’s property.

Serving as a financial power of attorney (agent) is a serious responsibility. It is important to keep great records, and to make sure each transaction you make on behalf of the principal is in line with the fiduciary duty you have been granted.

Naming an agent before times of crisis is very important. By doing so it is possible to avoid long drawn-out court processes when it comes time to pay bills, access bank accounts, etc. during times of emergency. Just remember – power of attorney documents CEASE to have power when the principal passes away. Contact Crain & Wooley if you have questions or concerns regarding naming an agent or being named AS an agent.

In 2015, the Texas Legislature passed a law adopting the Transfer on Death Deed (“TODD”). The TODD was adopted, presumably, as an alternative to probating an estate simply for the purpose of clearing title to real estate. More plainly, if you only own a home, you could avoid probate with this type of deed. While that sounds like a viable option at first, there are many shortcomings and pitfalls to using the TODD. 

Using a TODD is essentially naming a beneficiary to your property. When you die, your property will automatically vest in your beneficiaries. They will still need to show a death certificate and have the records updated with the County Clerk and the Count Appraisal District. 

One of the most common areas of TODD failure is only being able to transfer an equal fractional interest. That limitation can drive property owners to leave their property to one single beneficiary in hopes that they will “do the right thing” when handling the property after the original owner’s death. This rarely works, and families end up in court anyway over disagreements considering what “the right thing is”. Crain & Wooley strongly urges property owners not to try and make their intentions fit into an estate planning shortcut like a TODD. These shortcuts often turn out to cost a lot money to fix when not followed to the “T”.

The use of a TODD can hinder a beneficiary’s ability to sell the property in many ways. First, a TODD has a creditor period attached to the transfer for 24 months. For 2 years, a creditor can place a lien or a claim against the sale of the property. This can and will keep the title of the property from being transferable. Unless your beneficiary plans to keep the property for 2 years after your death, the TODD is not your best option. 

A TODD cannot and does not provide any warranty of title. This will cause other issues making it more difficult for a beneficiary to sell the property. Leaving your property to any person without a warranty of title can be giving them more of a burden than a blessing.

A contradiction in the law establishing the TODD is that a TODD cannot be created by an agent acting under Power of Attorney, but it CAN be revoked by an agent acting under Power of Attorney. If you have a Power of Attorney appointed to act on your behalf during a period of disability or incapacity, that agent would not be able to create a TODD for your property. However, that agent can revoke a TODD that you have put in place, even if that revocation plays into their favor. 

As you can see, a TODD does not offer the same safeguards provided by a more thorough estate plan like a will or trust. What started out as a good idea in theory lacks greatly in practical implementation.

You did everything right. You found a tutor for your kid so she could get the highest SAT score possible. You helped him apply for all the right scholarships. You saved to help cover some of her other college expenses. Now your sweet baby is headed off to earn his degree; and you are ready to spruce up your empty nest. Right?

Not so fast. There is one more thing your precious offspring needs before she chooses which sorority to pledge: estate planning documents. “But Amy doesn’t have an estate!” Estate planning is more than just leaving instructions for who gets what after you die.

In the past, you have taken care of all of your kid’s doctors’ appointments and permission slips. But now that your kids are 18, you have no legal right to make medical or financial decisions for them. What if Emma is studying abroad in Florence, and she needs you to handle something for her at the bank or the school? What if Jaxson gets hurt at the conference track and field meet and needs you to get medical records for him? Unless you have written authority to do so, you cannot help your precious babies because they are legally adults.

You might have a smidgeon of disbelief after all your kids are still on your health insurance, and you are paying their tuition. This does not matter. Once a person reaches the age of 18, they are an adult and as such afforded medical and financial privacy. 

You may run into the occasional doctor or banker who may bend the rules for you in a “one-off” situation, but the best way to help your young-adult is to make sure power of attorney documents are in place. 

A durable power of attorney can give you very broad or very limited authority to “take care of business” for your kid. It can be limited as to timing, types of powers, and authority to give gifts to avoid tax penalties.

A combination medical directive, medical power of attorney, and HIPPA release helps communicate your kid’s wishes if he is unable to speak for himself. It also authorizes you to talk to physicians on your kid’s behalf and obtain medical records. As you prepare for THE COLLEGE YEARS, give yourself and your college student peace of mind by having proper power of attorney documents in place.

Comment below or email us to schedule a free consultation to learn more about setting your student up for success.

The United States is seeing an increase in diseases affecting mental capacity (like Early Onset Dementia) occurring more frequently and at younger ages than was previously known in earlier decades. These diseases often impact an individual without anticipation or preparation and the symptoms experienced can drastically increase in severity over a short period of time. This causes numerous issues and hardships that affect both the individual and their loved ones.

Cognitive degeneration diseases have both medical and legal consequences. Regarding the legal issues, it is necessary to execute the proper documents to manage your affairs before you or your loved ones surpass the threshold of insufficient mental capacity to legally sign documents. Here at Crain & Wooley, we specialize in pre and post disability planning. 

We offer Medical and Financial Power of Attorney documents that appoint an Agent to make decisions for you if you lack the capacity to do so. Through the strategic use of both these documents, your agent can potentially qualify you for your state’s Medicaid program. At the very least, your Agent will have the full authority to make financial and medical decisions to assist you and your family in coping with the loss of mental capacity. These documents are considered necessary when preparing for disabilities.

Please, act and pre-plan. Schedule a free consult today to learn more.

When starting to get their “affairs in order”, most people think about wills, and maybe even a trust. What is often overlooked when considering estate planning is the role that both Medical and Financial Power of Attorney documents play within the plan. Power of Attorney documents are effective during your lifetime and cease to have authority upon your passing. 

The powers granted in these documents terminate upon your death.

The Medical Power of Attorney document is critical to proactive estate planning. At Crain & Wooley, we not only include the 2018 Texas statutory requirements but also incorporate three necessary components. 

1. Appointing individual(s) to be your “Agent” that legally allows them to assist in making medical decisions in the event of your incapacity
2. Your preferences if you reach an irreversible or terminal condition, often referred to as a living will or advanced directive
3. The HIPAA release language that allows your appointed “Agent” to consult with your doctors and physicians to discuss medical conditions and treatments on your behalf. 

By simply completing this document and having it apart of your estate plan, you can save yourself, family, and friends from facing additional hardships if you find yourself facing serious medical conditions. We recommend completing a Medical Power of Attorney with the rest of your estate plan when you have the requisite mental capacity so that you and your intentions are properly documented. 

The Financial Power of Attorney is another useful and necessary document to execute when updating or creating your estate plan. Like the Medical Power of Attorney, you appoint an “Agent” that can act on your behalf if you were unavailable or mentally incapacitated. Your Agent would be able to access your bank accounts and other assets to continue paying bills and other expenses so that your estate does not get behind when you are unavailable to manage day-to-day affairs. 

We recommend utilizing a Financial Power of Attorney, as opposed to adding a joint owner or co-signor on a bank account. This avoids unwanted liability exposure. 

Your Agent acting through your Financial Power of Attorney can also use this legal document to qualify you for Medicaid if needed. Your Agent could perform a Medicaid spend-down of your estate in the event of your incapacity, which allows you to qualify for the state’s Medicaid benefits to cover medical expenses – like long term care. Having a Financial Power of Attorney in place will alleviate issues of frozen accounts and unpaid expenses if you are mentally or physically unable to sign documents or manage your affairs. 

Have you looked at the back of your Texas Driver’s License lately? No? Go ahead and get it out of your wallet. I’ll wait . . .

See those first two boxes? In an emergency, first responders can look at the back of your license to get critical information. You can check those two boxes. Then, under the “RESTRICTIONS” section, you can use a fine-tip, permanent marker to write the name(s) and phone number(s) of your Medical Power of Attorney Agent(s). This will let paramedics and doctors know that you have a Medical Directive and that your agent(s) should have a copy. For example, if you are incapacitated but have specific wishes per your religion that you would like to have communicated, the doctors can contact your agent(s).

A Combination Medical Directive to Physicians, Medical Power of Attorney, and HIPAA Release are just a few of the many helpful documents that we will craft for you as a part of your comprehensive estate plan. Please, make an appointment with us today so that we can ensure that all of your wishes are properly documented and communicated.

On June 26, 2015, the U.S. Supreme Court’s decision in Obergefell v. Hodges confirmed that same-sex couples have the same right to marry as opposite-sex couples. So that means that same-sex couples’ estates will be treated the same by the courts, right?

Well, unfortunately, it’s not that simple yet.

Courts have not explicitly ruled on whether or not same-sex civil unions (or what some people think of as “common law marriages”) will be retroactive for the purposes of classifying community and separate property in the marital estate.

What does that mean?

Let’s say Abby and Brandy have been in a relationship since 1990 and moved in together at that time. In 1995, they had a ceremony in front of their friends and family in which they exchanged rings and committed to stay together forever. From then on, they introduce each other as “my wife” and told everyone that they will get married as soon as the law allowed. In 1997, they bought a house together in Dallas and opened a checking account in both of their names. Then Abby bought a new car in her name only, and Brandy installed a pool in their back yard that she financed in her name only and paid for with her salary.

Fast forward to June 27, 2015, when Abby and Brandy are finally, legally married at the courthouse . . .

If either Abby or Brandy dies without an estate plan in place, what would happen with the house, the checking account balance, the car, and the improvements on the house?

No one knows, for sure. If the law decides that their “common law marriage” can be retroactive (for the sake of classifying their assets), all of those things could be considered community property to be distributed to the surviving spouse. If their marriage isn’t retroactive back to 1995, the courts will be very unpredictable as to how they will handle the division of assets. Of course, this potential distribution of assets to the surviving spouse supposes no familial disagreements or arguments necessitating additional court hearings.

What should same-sex couples do?

The best thing for same-sex couples to do is work with an experienced attorney to put their exact wishes in writing ensuring specific instructions are carried out. It is also recommended that any other “non-traditional” families (like opposite-sex couples who have been together for a long time but never married, married couples with blended families including children from previous relationships, or any other family that might need special instructions in lieu of the common law rules of distribution) work with an attorney to protect their legacy.

In addition to crafting an estate plan that will distribute your assets according to your requests, our total estate plan packages include power of attorney documents that will help avoid problems with other institutions that don’t recognize your partner’s authority to handle your financial and medical decisions.

Schedule a free, one-hour consultation today so that we can give you, your partner, and the family that you’ve built an equally solid plan for your future.