No matter what assets you have, an effective Texas estate plan involves more than just a will. A will provides for the transfer of your property at death, but what if you become seriously ill or badly injured? Who will make decisions for you if you are legally unable?
A will is an important part of an estate plan, but it has no legal effect until you die. A will does nothing to direct the management of your assets or to ensure your wishes are followed should you become temporarily or permanently incapacitated.
Every complete Texas estate plan provides answers to five questions:
- Who will receive my property when I die and how should it be distributed?
- Who will be responsible for distributing my property in accordance with my wishes when I die?
- Who will manage my assets if I become incapacitated?
- What type of medical care do I want if I am unable to discuss my care with my doctor?
- Who will make decisions about my medical care if I cannot? Will that person have access to my medical information so he or she can make informed decisions?
At the Ruesch Law Firm, our Dallas estate planning lawyers recommend that all Texas estate plans include five documents, which together will address all of these questions:
- Texas Will
- Texas Durable Power of Attorney
- Texas Medical Power of Attorney (Advance Directive)
- Texas Directive to Physicians (a Living Will)
- HIPAA Authorization
If you have minor children, there is a sixth question that must be answered in an estate plan: Who will care for my minor children if I die or if I become incapacitated?
And there is a sixth document that must be executed to answer it:
Last Will and Testament
A will is a document that directs the disposition of your estate when you die. In your will, you can also designate who you would like to be responsible for distributing your estate and who you would like to care for your minor children. Your will can also establish a trust to hold the assets you give your children until they are old enough to handle them responsibly. Your will has no legal effect while you are alive; it becomes an effective legal document upon your death. If you’re married, you and your spouse should have separate wills, though the provisions may be nearly identical.
Durable Power of Attorney
A durable power of attorney appoints an agent to manage your assets if you become temporarily or permanently incapacitated. By executing a durable power of attorney, you get to choose who will manage your affairs if you cannot. You also may choose to limit the powers your agent has. If you become incapacitated without an effective durable power of attorney, a court-ordered and court-supervised guardianship may be required to ensure your assets are properly managed, bills are paid, property is maintained, etc. With a durable power of attorney, you choose who manages your assets and what powers that agent has; with a guardianship, the court gets to decide what is in your best interest.
Medical Power of Attorney (Advance Directive)
A medical power of attorney appoints an agent to make medical decisions for you if you are unable. This agent is required by law to make decisions according to your wishes, including your religion and your moral beliefs. The medical power of attorney is effective as soon as it is executed; however, your agent may not make medical decisions for you unless your doctor certifies in writing that you are not able to make those decisions for yourself.
A HIPAA Authorization authorizes one or more individuals access to your medical records. HIPAA, the Health Insurance Portability and Accountability Act, protects your personal medical information from disclosure. A HIPAA Authorization acts as a waiver for your health care providers so they don’t have to worry about whether they will be violating the Act by releasing information about your care to the person you have named as your health care agent. You can find more information about health information privacy at this link.
Texas Directive to Physicians (Living Will)
A directive to physicians, sometimes called a “living will,” is another form of advance directive. It supplements the medical power of attorney by providing explicit instructions on whether to provide life-sustaining treatment for terminal conditions.
Declaration of Guardianship for Minor Children
A declaration of guardianship for minor children designates one or more individuals to serve as legal guardians of your children in the event that you become unable to care for them. A declaration of guardianship is effective upon either your death or your incapacity. While you could name a guardian for your children in your will, our Dallas estate planning lawyers recommend using a separate document. This is because your will has no legal meaning until your death—if you become incapacitated and unable to care for your children during your lifetime, a guardian designation in your will is ineffective. However, a separate declaration of guardianship can take effect either when you die or while you are still alive but incapacitated.