ESSENTIAL ESTATE PLANNING DOCUMENTS
March 7, 2022
Documents Required While Incapacitated:
Durable Power of Attorney
A Durable Power of Attorney is a contract between two individuals where one party (the principal) gives to the other (the agent) the authority to make any number of decisions (e.g. financial, business, real estate) on his or her behalf, even if the principal later becomes mentally incapacitated.
Medical Power of Attorney
A Medical Power of Attorney gives another person the authority to make medical decisions for you if you are unable to make them for yourself. Unlike a Healthcare Directive, this document does not necessarily state what type of treatment you want to receive. You can leave those decisions to your proxy (sometimes called an attorney-in-fact, agent, or representative) if you feel comfortable doing so. Ideally, however, the two documents will work together.
A Healthcare Directive, also known as a Living Will, Directive to Physicians, or Medical Directive, sets your wishes about what extended medical treatment should be withheld or provided if you become unable to communicate those wishes. The Directive creates a contract with the attending doctor. Once the doctor receives a properly signed and witnessed Directive, he or she is under a duty to either honor its instructions or to make sure that the patient is transferred to the care of another doctor who will. Many people mistakenly believe that healthcare directives are used only to instruct doctors to withhold life-prolonging treatments. In fact, some people want to reinforce that they would like to all medical treatment that is available; a healthcare directive is the proper place to do so.
Hipaa Authorization to Release Medical Records
The Health Insurance Portability and Accountability Act (“HIPAA”) limits disclosure of “Individually Identifiable Health Information.” Pursuant to federal regulations, an Authorization To Release Medical Records allows healthcare providers to disclose and openly discuss individually identifiable health information with members of your family and/or friends designated in the authorization, regardless of your state of health. An Authorization To Release Medical Records also survives your death, unlike a Medical Power of Attorney.
Designation of Guardian
A Designation of Guardian is the document you use when deciding who shall be your guardian, whether it be of your person, your estate, or both. This document becomes effective if you are declared incapacitated and there are no valid powers of attorney naming an individual whom you have indicated to make decisions on your behalf. The Court will use this document when determining who should be named as your guardian and make decisions on your behalf.
Documents Required After Passing:
A Will is a document which directs how you wish your property to be disposed of upon your death. This document remains valid unless or until it is revoked by you. A Will can range from a simple one, where you bequeath your property to your spouse, or other loved ones, to a complex one, where you may place your property in a trust for the benefit of your heirs.
Agent to Control Disposition of Remains
An Agent to Control Disposition of Remains, also known as Body Disposition Authorization Affidavit. An Agent to Control Disposition is written instructions that outline many different requirements according to the decedent’s wishes. Such specifications are not limited to the following: where the body shall be buried, where the ashes shall be scattered after cremation, budget for a memorial service or funeral, as well as the type of ceremony to be performed (religious, etc). The Texas Health and Safety Code, Section 711.002(a) provides a priority list of individuals who have the right to control the disposition of the decedent’s remains in the absence of written instructions or a named agent. The priority list follows in this order: the decedent’s surviving spouse; any one of the decedent’s surviving children; either one of the decedent’s surviving parents; any one of the decedent’s surviving adult siblings; or any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent. It is important to note that this list does not grant this right to a surviving partner. Therefore, it is essential for same-sex couples to execute this document. Planning for the disposition of remains will help save surviving parties of any disagreements on how the body should be handled after death. It will also ease the emotional burden by helping these individuals focus their energies on dealing with the loss of their loved one.