Estate Planning and Probate News

By J.C. Bailey III


The Internet and infomercials offer ideas about planning for the future that run from the somewhat helpful to the fraudulent.  Many of the sales pitches utilize scare tactics to get you to purchase their overengineered and overpriced products, or they present estate planning documents as being so easy you can fill in the blanks on a one-size-fits-all form. The good news is that for most Texas residents the basic estate planning tools are sufficient. An experienced estate planning attorney can get information about you, your circumstances and your family situation and draft documents to implement your wishes.

The basic documents usually include a will, durable power of attorney, medical power of attorney and directive to physicians.

A WILL empowers you, your family and those you choose to act on your behalf to gather and distribute your “stuff” when you die.  “Stuff” includes both real estate and personal property.  It is also essential to appoint people you trust to serve as guardians of any minor children and as trustees to administer any testamentary trust(s).  (A testamentary trust is one you set up in your will but that is not funded until you die.  Beneficiaries who have not reached a certain age or are incapacitated in some other manner may also benefit from a testamentary trust.)

A  DURABLE POWER OF ATTORNEY appoints another person to act as your agent or “attorney in fact.”  The agent’s authority can be limited to certain specific acts, or the agent may be given broad authority to act on behalf of the principal.  Durable powers of attorney endure or survive the incapacity of the person who issued them.  This durability is not only convenient but may help avoid the necessity of a guardianship.  Guardianships can be time consuming and expensive as they require the taking of testimony and making of rulings as to the extent and duration of the guardianship in a court with probate jurisdiction.

A MEDICAL POWER OF ATTORNEY enables your agent to communicate with health care professionals on your behalf if you are unable to make health care decisions on your own.  Federal laws intended to protect our privacy have limited what information can be shared with your loved ones.  If your medical power of attorney does not specifically address HIPAA, you need a new one.

The last of the basic estate planning tools for Texas residents is a DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES.  This document is often referred to as a medical directive, directive to physicians or living will.  This document communicates your wishes as to the application or withholding of life-sustaining procedures in case you are suffering from an “irreversible” and/or “terminal” condition.

Your decisions about end-of-life matters may be shaped by any number of factors and should be communicated in writing, not only because you deserve to be able to make those decisions, but because those you leave behind shouldn’t have to.

These basic estate planning tools are sufficient for most of us.  Mr. Bailey has more than 20 years of experience listening to clients in these situations and prescribing the right plan for their circumstances.  Do not leave these decisions up to chance or the government.  Make sure that, in difficult times, what you value and those you care about are not hurt even more by your failure to plan.

Leave a Reply