When people think about estate planning, they generally think only about a will. Although a will is an important part of an estate plan, it only takes effect after you die. Other documents are needed to carry out your wishes and manage your assets in the event you are temporarily or permanently disabled. The following is a list of the essential Texas estate planning ancillary documents every adult in Texas needs:
1. Statutory Durable Power of Attorney.
This document authorizes your agent to handle a variety of business, financial and legal transactions on your behalf. The authority conferred on the agent begins when you sign the power of attorney and continues even if you become mentally or physically disabled or incapacitated. You can amend your durable power of attorney by signing a new durable power of attorney. You also have the right to revoke or terminate your durable power of attorney. Any power of attorney is automatically revoked by the Court appointing a guardian or when you die.
2. Appointment of Guardian.
This document is designed to permit you to pre-appoint your guardian. The agent you have approved has the right to be appointed your legal guardian of your person and estate in order to properly administer your estate in the event you become mentally or physically unable to attend to your affairs.
3. Medical Power of Attorney.
This document gives your agent the power to make important medical decisions for you in the event you become unconscious or mentally incapable of making those decisions for yourself. It is effective indefinitely unless it contains a specific termination date, it is revoked, or the principal becomes competent. A medical power of attorney authorizes your agent to act on your behalf only after your attending physician certifies in writing and files the certification in your medical records that based on his reasonable medical judgment, you are incompetent. Regardless of the existence of a medical power of attorney or the declaration of incompetence, the statutes specify that treatment cannot be given to or withheld from you if you object.
4. Authorization to Release Medical Information “HIPAA”.
The Standards for Privacy of Individual Identifiable Health Information, part of the Health Insurance Portability and Accountability Act (“HIPAA”), requires that your health care providers (i.e., doctors, dentists and hospitals, among others) (the “Covered Entities”), must obtain a written authorization from you in order to disclose your health information to any other party. This section of HIPAA is commonly called the “Privacy Rule.” While it’s true an agent under a Medical Power of Attorney has the authority to view the principal’s medical records, the Medical Power of Attorney does not grant authority to the agent until the principal is incapacitated. If capacity is questioned, then HIPAA regulations would prevent access to protected health information.
5. Directive to Physicians and Family or Surrogates “Living Will”.
This document, also sometimes referred to as a “Living Will,” allows you to instruct your agent, along with your physicians, to administer, withdraw or withhold artificial, life-sustaining treatment in the event you are diagnosed with a terminal or irreversible condition and are unable to make your own health care decisions. A directive to physicians can be revoked at any time, even in the final stages of a terminal illness. You can revoke your directive orally or in writing. If you revoke your directive, you must notify your physician of your decision, which your physician will then note in your medical records. You can demand that life-sustaining treatment regardless of what your directive provides. Execution of this directive does not restrict, inhibit or impair in any manner your ability to obtain life insurance or modify the terms of an existing life insurance policy. You cannot be required by any health facility or health provider or insurer to execute a directive to physicians as a condition for obtaining insurance.
6. Appointment of Agent to Control Disposition of Remains.
This document gives your agent the power to determine the method of disposing of your remains, such as whether it be by burial, cremation or donation for medical study.
7. Supported Decision-Making Agreement.
This document provides a less restrictive alternative to guardianship for adults and permits you to appoint a supporter to support you in getting the information you need to make an informed decision, consider the options, understand the risks, and communicate your decision to others. The agreement does not require court filing. It does not allow a supporter to make decisions for you or act in your place.
8. IRS Form 2848 Power of Attorney and Declaration of Representative.
The IRS requires Form 2848 to be completed and filed before they will deal with anyone other than you regarding your federal tax matters.
9. SSA Form SSA-1696 Appointment of Representative.
If a person receiving Social Security becomes unable to handle his or her own money, but there is no other need for a court-appointed guardian, having a trustworthy person appointed Representative Payee is often a good way to avoid guardianship. A Representative Payee is a person to whom Social Security will send the monthly Social Security and/or SSI checks, to be used for the benefit of the beneficiary (the person entitled to the checks).
The information provided herein is not, nor is it intended to be, legal advice. It is for informational purposes only. No attorney-client relationship has been created and we have no obligations to you or your case.