Estate & Probate
Everyone needs an estate plan. It’s like carrying an umbrella on an overcast day. Have you ever noticed that if you carry the umbrella, it won’t rain? If, however, you forget your umbrella . . .deluge!
If you don’t want to plan your estate yourself, the State of Texas is happy to handle the planning for you, through a process called intestate succession. Be careful! You never know what you’re going to get, but I’m pretty sure you won’t like it.
It’s much easier to plan to live the legacy you want to leave behind.
A Will is the most basic method of passing assets from one generation to the next. A Will also allows you to appoint guardians for your minor children and trustees for any trusts you may want to create.
In addition to a Will, each of the following includes a Directive to Physicians and Family or Surrogates (often called a Living Will or Advance Directive), Medical and Statutory Durable Powers of Attorney, a HIPAA release, Appointment of Agent to Control Disposition of Remains, Declaration of Guardian in the Event of Later Incapacity or Need of Guardian, and where necessary Declaration of Guardian for Minor Children.
“Probate” is not a four letter word. Really! It doesn’t deserve the reputation that is has gotten.
Probate is merely the process that the court uses to record a Will and open an administration, or determine who inherits what where there is no Will.
The good news is that, in Texas, where there is a properly drafted and executed Will, probate is relatively simple and painless. The bad news is that probate proceedings almost always require an attorney.
Typically, the estate representative (often called the Executor) will be required to attend at least one court appearance (called a Hearing), during which the representative will be qualified and take the required oath.
(often called a Living Will or Advance Directive)
A Directive to Physicians and Family or Surrogates allows you to give specific instructions to your doctor and family regarding your personal beliefs and how you wish to be treated when you are ill, including whether to withhold or withdraw life support when you are diagnosed with a terminal, or incurable and irreversible condition (such as administration of pain medication, using feeding tubes and hydration, refusing respirators, etc.).
This directive allows you to instruct your doctor to allow you to die naturally if you are ever diagnosed with an incurable and irreversible condition from which there is no reasonable probability of recovery, such as an irreversible coma or a persistent vegetative state. The doctor will look to this directive only if you suffer an incurable and irreversible condition that will, in reasonable medical judgment, result in your death within a reasonable period of time in accord with accepted medical standards, that is certified, in writing, by two physicians AND only if the application of life-sustaining procedures would serve only to artificially prolong the moment of death.
Some common examples include:
- I do want pain medication to alleviate any suffering I might experience.
- I do not want cardiac resuscitation.
- I do not want mechanical respiration.
- I do not want feeding intravenously or by gastro-intestinal tube, or any other invasive or artificial form of feeding.
- I do not want to be hydrated intravenously.
- I do not want blood transfusion or blood product transfusion.
- I do not want any form of surgery or invasive diagnostic tests.
- I do not want kidney dialysis.
- I do not want antibiotics.
- I do not want chemotherapy.
- I do not want to receive organ transplants.
A Medical Power of Attorney allows you to appoint someone to make healthcare decisions for you when you are not healthy enough to make them yourself. For example, if you are unconscious, the person you name will help your doctor make decisions until you can do so.
A DNR allows a terminally ill or infirm patient to refuse cardiopulmonary resuscitation (CPR) or other life sustaining treatments while outside of the hospital. To ensure that emergency responders know that you have a DNR, you may want to wear a DNR identification device (such as a medical alert bracelet or necklace).
A Durable Statutory Power of Attorney (Financial) allows you to appoint someone to make financial and property decisions for you when you are not healthy enough to make them yourself. For example, if you are seriously ill and incapable of making financial decisions, the person you name will help you maintain your finances.
If you have properly drafted Powers of Attorney, and your financial and medical advisors are aware of your decisions, you probably won’t need a guardian. In the event that a document is lost or destroyed, or an agent cannot be located or won’t serve, guardian may become necessary. Thus, to cover all your bases, you may want to appoint your own guardian, should one ever become necessary. You may appoint different people to serve as guardian of your person and your estate, if you want. More importantly, this document may be used to specifically disqualify someone from ever becoming your guardian.
An Appointment of Agent to Control Disposition of Remains allows you to appoint someone to make all decisions relating to the final disposition of your bodily remains. This document is flexible and allows you to determine details such as where your remains will be laid to rest, funeral arrangements, or anything else that may be important to you. Importantly, this document allows you to appoint an agent who is not legally recognized as your “next of kin,” such as a partner or close friend. This is especially important if you are single or part of a nontraditional family.
HIPAA, the Health Insurance Portability and Accountability Act, was enacted in 1996 to protect the privacy of health information. HIPAA prevents a health care provider from releasing health care information unless the patient has provided a HIPAA release form. Thus, despite a Power of Attorney, unless you have provided a signed release form, your health care providers are prohibited from discussing any aspect of your medical information with anyone who is not directly involved in your care.
In a worst case scenario, if you have not provided a guardian for you minor children, the court will do it for you, even though the court cannot know your values, lifestyle, or child-rearing philosophy. Thus, it is important that you choose who will provide for the social training and physical needs of your children.
It is especially important for single and divorced parents to appoint guardians. This is because, when one parent dies, the other parent remains the children’s natural guardian, and the children generally go to live with the surviving parent. You may not consider this to be in the best interest of your children.
The House of Hades by Rick Riordan
The House of Hades by Rick Riordan
Get in Touch
Attorney deborah lawson
Principal office Houston Texas
Office Hours: By Appointment Only