By Colin Smith | Contributor
At the time of this writing, COVID-19 and its immediate impacts are front and center in all of our lives. In these strange times, the virus is serving as the catalyst for people ensuring that their estate plans are complete. Callers typically begin by asking how long it takes to draft a Will. Somewhere in the conversation, I explain to the caller that there are other documents that are more important, since a Will only applies after death, but there are a number of documents that apply while a person is alive. In no particular order, a person should have these documents in place at a minimum.
Medical Power of Attorney. This document designates who can make medical decisions if someone is unable to do so for themselves. It typically includes a HIPAA release, which outlines who has access to medical records. Hospitals often require these documents, and it’s advisable to have one prepared. In these unusual times, at least one hospital has refused admittance to anyone visiting a patient unless they were also the designated medical attorney-in-fact.
Statutory Durable Power of Attorney. This document designates who is authorized to make financial decisions on your behalf, among other responsibilities. In urgent situations, it allows an attorney-in-fact to access the principal’s bank account to settle bills.
Advance Directive. Sometimes referred to as a “living Will,” this directive indicates whether an individual wishes to have life support discontinued if there is no realistic hope for recovery.
Will. A Will outlines the distribution of your property upon death and identifies the individual you wish to appoint as your executor. It is necessary for a Will to go through probate after someone has passed away—meaning that someone must present the Will to the court to be admitted and request the appointment of an executor. An executor is a legally appointed individual responsible for creating an inventory of the deceased’s assets, paying any debts, and distributing the remaining property according to the instructions in the Will.
Individuals who die without a Will undergo a different probate process, known as intestate probate. Simply put, if you do not have a Will, the state of Texas will determine how your assets are distributed. Intestate probate is typically more complicated, costly, and time-consuming than the process involving a Will.
Declaration of Guardian. There are two types of declarations. One pertains to minor children, allowing a parent to appoint a guardian for their minor children if they are incapacitated. The other allows an individual to specify who they wish to serve as their own guardian if such a need arises. If a person lacks a Statutory Durable or Medical Power of Attorney, a guardianship may be necessary to manage their affairs. Guardianships involve complex and costly legal proceedings.
Editor’s Note: Colin Smith is a member of the State Bar of Texas, the Dallas Bar Association, and the Dallas Trial Lawyers Association. If you wish to reach him with questions or comments, email colin@colinsmithlaw.com or call 972.773.9095. For more information, visit www.ColinSmithLaw.com.
