Texas Estate Planning

What is National Healthcare Decisions Day?

“Healthcare decisions,” might sound like some far-off bridge you’ll cross when you get to it, but the reality is that our health is unpredictable. We really don’t know when healthcare decisions will need to be made or if someone else will need to be making them for us. 

Over the last few years, people are seeing the importance of getting a plan in place that will protect them, their family, and their assets. Scenarios in which we’re unable to make our own healthcare decisions are not easy to think about, but they are important to discuss with people that you know and trust, the people that will most likely have to make those difficult healthcare decisions on your behalf. 

National Healthcare Decision Day (NHDD) was founded in 2008 by Virginia-based health care lawyer, Nathan Kottkamp, because he saw the pitfalls in our healthcare system that occur when people fail to discuss their healthcare wishes or have a plan in place. He chose April 16th to remind us that even though it’s tax season, there are some other human experiences we can be certain to face. 

But National Healthcare Decision Day goes far beyond our “last wishes.” It is about making sure someone knows what we value so that they can confidently make decisions for us if the need ever arises. It can be daunting to think about someone else having the final say in our health care, but imagine being the one making those decisions and not having the slightest clue of what the person in the hospital needs or wants. 

 

Give your loved ones the confidence that they’re making the right decision.
Not only is it important to communicate your wishes to your friends and family, it is often necessary to outline them in a legally binding document (or two). An Advance Directive, often referred to as a “Machines or No Machines Document,” is a legal document in which you explicitly state what type of medical care you’d like under certain circumstances. 

But it’s impossible to predict exactly what your circumstances are going to be, so take April 16, National Healthcare Decisions Day, to have these conversations with the folks who need to know. Check out The Conversation Project’s “Conversation-Starter” guides on their website. The Conversation Project recommends discussing what you value in your life in order to better understand what to prioritize in the event that you become incapacitated. These broader conversations help prepare your loved ones for unpredictable medical events, as opposed to only discussing very specific circumstances that might not ever occur. 

Another legally binding document that can be helpful in ensuring you receive the care you desire is called a “Medical Power of Attorney.” If you don’t have this document in place, then your state will defer to their laws which dictate who will make your medical decisions in the event that you become incapacitated. For instance, if you’re married, more often than not, your spouse will be the one to speak on your behalf. Getting a Medical Power of Attorney not only allows you to name whomever you wish to speak on your behalf, but also allows you to name alternates in the event that your initial agent is not able to act at the time or in the place you might need them to. 

 

Celebrate National Healthcare Decisions Day– start the conversation with your loved ones.
For healthcare decisions, it can be very beneficial to have your wishes in legally enforceable documents because doctors often prefer to take every measure possible in order to keep you alive. And while this is a noble stance for doctors to take, there are certain circumstances in which this approach may be distressing for you and your loved ones. 

Celebrating National Healthcare Decision Day with honest conversations about your values can bring peace of mind to you and your loved ones. It might be difficult to begin such a conversation, but it pales in comparison to the difficulty of making healthcare decisions for someone else without any directions. 

Why Is a Will So Important?

A 2020 Gallup poll found that less than half of Americans have a will or have made plans regarding how they would like their money and estate handled in the case of their death. The poll also showed that Americans ages 65 and up are the most likely to have a will.

Yahoo News’ recent article entitled “How To Write A Will: The Importance Of A Will And Living Will” says that no matter your age, it’s important to have a will to be in control of what happens with your own assets. A will is a legal document that establishes a person's wishes regarding the distribution of their assets — money, real estate, etc. — and the care of any minor children.

Without a will, state law may control who gets your “probate” assets and when. Having a will can save an enormous amount of time and money in estate administration and the process of having a guardian appointed for your minor children, if needed.

There’s a big difference between a will and a living will. A living will is a document that lets you state in advance how you want to be treated under certain medical situations, if you’re unable to make those decisions for yourself at a later time.

These differ by state law. However, they generally cover end-of-life decision-making and treatment options. General medical decisions unrelated to end of life care are typically covered in a health care power of attorney. Some states combine these two documents into one directive.

Unlike a living will, which specifically provides instructions for medical care during your lifetime, a will lets you to decide in advance who you want to receive your assets upon your death, and who you want to be in charge of handling the administration of your estate. If you have minor children, a will also allows you to nominate a guardian for them.

When creating a will, think about the “what,” the “who” and the “how.” To do so, ask yourself the following questions:

• What assets do you have?
• To whom do you want to leave them?
• Who do you want to be in charge of making sure that happens?
• Who do you want to be responsible for your minor children?
• How do you want the assets transferred?

Some Key Documents Should Be Considered Before Sending Your Child Off to College

In the United States, as soon as a minor turns 18, they’re typically considered a legal adult.

As a result, parents no longer have any authority to make decisions for their child, including financial and health care decisions.

Yahoo’s recent article entitled “Don’t Let Your Child Leave for College Without Signing Three Critical Documents” asks what if your adult child becomes sick or is in an accident and ends up hospitalized?

Because of privacy laws, known as Health Insurance Portability and Accountability Act (HIPAA), you wouldn’t have any rights to get any information from the hospital regarding your child's condition. Yes, we know you’re her mother. However, that’s the law!

You also wouldn’t have the ability to access his or her medical records or intercede on your child's behalf regarding medical treatment and care.

If your child’s unable to communicate with doctors, you’d also have to ask a judge to appoint you as your child’s guardian before being able to be told of his or her condition and to make any healthcare decisions for them.

While this is hard when your child is still living at home, it’s a huge headache if your child is attending college away from home.

However, there’s a relatively easy fix to address this issue:

Ask an experienced estate planning attorney about drafting three legal documents for your child to sign:

• A Durable Power of Attorney (DPOA) for Health Care. This document designates the parent as your child's patient advocate.
• A HIPAA Authorization gives you access to your child’s medical records and lets you to discuss his or her health condition with doctors.
• A DPOA for Financial Matters, designates the parent as your child's agent, so that you can manage your child's financial affairs, including things like banking and bill paying, in case your child becomes sick or injured, or is unable to act for any reason.

Reference:  Yahoo (Aug. 2, 2022) “Don’t Let Your Child Leave for College Without Signing Three Critical Documents”

Can I Make Decisions for My 18-Year-Old ‘Kid’ If She Becomes Incapacitated?

The Press-Enterprise’s recent article entitled “Legal documents for young adults” describes some of the important legal and estate planning documents your “kid” (who’s now an adult) should have.

HIPAA Waiver. This form allows medical personnel to provide information to the parties you’ve named in the document. Without it, even mom would be prohibited from accessing her 19-year-old’s health information—even in an emergency. However, know that this form doesn’t authorize anyone to make decisions. For that, see Health Care Directives below.

Health Care Directive. Also known as a health care power of attorney, this authorizes someone else to make health care decisions for you and details the decisions you’d like made.

Durable Power of Attorney. Once your child turns 18, you’re no longer able to act on their behalf, make decisions for them, or enter into any kind of an agreement binding them. This can be a big concern, if your adult child becomes incapacitated. A springing durable power of attorney is a document that becomes effective only upon the incapacity of the principal (the person signing the document). It’s called a “springing” power because it springs into effect upon incapacity, rather than being effective immediately.

A durable power of attorney, whether springing or immediate, states who can make decisions for you upon your incapacity and what powers the agent has. The designated agent will typically be able to access bank accounts, pay bills, file insurance claims, engage attorneys or other professionals, and in general, act on behalf of the incapacitated person.

They’ll always be your babies, but once your child turns 18, he or she is legally an adult.

Be certain that you’ve got the legal documents in place to be there for them in case of an emergency.

Remember a spring break, when they’re home for summer after their 18th birthday, or a senior road trip are all opportunities when these documents may be needed.

Reference: The Press-Enterprise (April 2, 2022) “Legal documents for young adults”

Why Did Oklahoma Get Rid of Healthcare Power of Attorney?

A healthcare power of attorney is a legal document that permits a person to grant the authority to another person to make decisions about their medical care. A “healthcare power of attorney” refers to both a legal document and a specific person with legal authority.
Some big changes to Oklahoma's health care power of attorney recently took effect. Oklahomans are now unable to appoint someone to carry their health care wishes, if they're not able to themselves.
News Channel 8 in Tulsa’s recent article entitled “Oklahoma eliminates health care power of attorney” says that this is a fundamental change to the way patients are able to express their wishes. The change comes after House Bill 2548 passed earlier this year.
The bill establishes the state’s new Uniform Power of Attorney Act. The legislation is designed to align Oklahoma’s power of attorney laws more closely with those of 30 other states, and to ease complications when health care decisions need to be made out of state.
This leaves Oklahomans with limited options. They still have some other documents, but these aren't quite as easy to use and have some other strings attached. One of these is Oklahoma's Advance Directive form, which could be used as a work around, in getting someone to be your decision-maker. However, this document doesn't hold as much power.
Note that Oklahomans with a prior existing durable power of attorney will not have it voided by the new law. Any durable power of attorney agreement entered into between the passage of the new law and when it goes into effect on November 1 will also remain in legal effect. However, any durable power of attorney agreement entered into after November 1st will be considered invalid for healthcare purposes.
Ask an experienced estate planning attorney about a healthcare power of attorney in your state. In addition, inquire about an Advance Directive, as well as a last will.
You can also designate somebody to be the guardian in your last will. If you required a guardian, you've expressed your wishes and if someone needs to take control, you're telling the court who you want to be the decision maker on that.
A guardian can also be named to care for any minor children you may have.
Reference: News Channel 8 (Tulsa) (Nov. 4, 2021) “Oklahoma eliminates health care power of attorney”

What Should You Know about Guardianships and Conservatorships?

Guardianships and conservatorships are regulated by state and local statutes, so the details vary. In many states, a guardian refers to someone who oversees personal needs, such as healthcare, feeding and supervision and/or financial affairs. However, there are states where the term “guardian” refers to those who oversee personal affairs, and a conservator refers to those who oversee financial affairs.
Barron’s recent article entitled “Here’s What to Know About Guardianships and Conservatorships to Avoid Problems” explains that state courts have the power to appoint guardians or conservators for adults who are at risk because they are unable to make basic decisions for themselves. These arrangements can only be revoked by the court.
“[O]nce a guardian is appointed, the court is simultaneously removing the individual’s right to make that decision for themselves,” says Nina Kohn, a law professor at Syracuse University in the article. “If a court found that I lacked the capacity to make my own healthcare decisions, and appointed a guardian to make those decisions, I would lose the right to make my own healthcare decisions.”
While the exact figures are unknown, a 2015 survey by the National Center for State Courts estimated there were $50 billion in assets under state courts’ watch in conservatorships. The research also found that there were an estimated 1.3 million open conservatorship or guardianship cases.
A guardianship is usually requested by a family member who engages an elder law attorney to petition the court. However, it may also be requested by a friend, nursing home, state or local government agency, or a professional guardian. Guardians must give the court regular details about the property or funds they manage for those they are appointed to help. A professional guardian may charge the person subject to guardianship reasonable fees for handling their affairs.
After a petition for a guardian is made, generally notice is given to the individual, close relatives and others involved in the individual’s life. The court will then appoint an independent evaluator, such as a social worker, psychiatrist, doctor, nurse, or attorney. A guardian may be appointed without those procedures, if the court finds that there’s an emergency.
A guardian may solely manage an elderly person’s finances, or they may be granted the broad power to determine where the person lives, how their money is spent and what medical treatments they get. A guardian may prepare a budget based on the person’s finances, arrange to have meals delivered, arrange for recreation, or seek court approval to move the person to an assisted-living facility, among other duties.
In light of the fact guardianships may convey broad powers, they should be considered a last resort. A major issue with guardianships in the U.S. is that courts routinely strip individuals of all their rights, instead of tailoring the arrangement to fit the person’s needs. If one plans ahead, a guardianship is almost entirely preventable. To do this, you should have estate planning documents in order, including a will, a trust, power of attorney, medical power of attorney and a living will. Review your estate plans regularly and update your documents, as needed.
Reference: Barron’s (Aug. 28, 2021) “Here’s What to Know About Guardianships and Conservatorships to Avoid Problems”

What’s the Best Way to Create a Comprehensive Estate Plan?

The number of young adults ages 18 to 34 with estate planning documents increased by 63% since 2020. That’s mainly because of the pandemic, says CBS News’ recent article entitled “How to create a well-rounded estate plan.”
Estate planning is more than just writing a will. A will is one part of a comprehensive estate plan, which involves multiple tools.
Some common inclusions are wills, powers of attorney, advance directives, trusts and more. Estate plans can involve both durable power of attorney for your finances and healthcare power of attorney for medical decisions, if you’re incapacitated.
For young adults, a significant issue beyond the distribution of family assets may be designating a health care proxy and power of attorney (POA).
This part of an estate plan addresses the question of who will make a health care decision on your behalf, if you are unable to do this yourself.
A POA solves the issue of who will make a business or financial decision on your behalf if you can't.
These documents aren’t just for when you're on life support. They may be implemented when you're in the hospital and out of action for a while.
As far as medical directives, you should detail your treatment wishes as much as possible.
This is a very big task to place on someone, so the more detailed you can be about your wishes, the better it will be. And the easier it will for the person who’s your health care agent to carry out your wishes.
You should talk to the individual you’ve selected to be your agent to make certain that he or she is willing and able to assume this big job.
If you have a complicated situation, such as a blended family or you're not in great standing with the rest of your family, you should definitely work with a qualified estate attorney in the state in which you reside.
Reference: CBS News (Aug. 11, 2021) “How to create a well-rounded estate plan”

What Should Same-Sex Couples Know about Estate Planning?

Proper estate planning can help ensure that your wishes are carried out exactly as intended in the event of a death or a serious illness, says Insurance Net News’ recent article entitled “What Same-Sex Partners Need to Know About Estate Planning.” Having a clearly stated plan in place can give clear instructions and potentially avoid any fights that otherwise might occur. For same-sex couples, this may be even more crucial.

Your estate plan should include a will or trust, beneficiary forms, powers of attorney, a living will and a letter of intent. It’s also smart to include a secure document with a list of your accounts, debts, assets and contact info for any key people involved in those accounts. This list should contain passwords for locked accounts and any other relevant information.

A will is a central component of an estate plan which ensures that your wishes are followed after you pass away. This alleviates your family from the responsibility of determining how to divide your property and takes the guessing and stress out of how to pass along belongings. A will or trust might also state the way in which to transfer your financial assets to your children. You should also make sure your beneficiary forms are up to date with your spouse for life insurance policies, bank accounts and retirement accounts.

For same-sex couples, it is particularly important to create a clear medical power of attorney and create a living will that states your medical directives, if you aren’t able to make those decisions on your own. If you aren’t married, this will give your partner the legal protection he or she needs to make those decisions. It is important for you to take time to have those conversations with your partner, so the plans and directives are clear. You can also draft a letter of intent, which is a written, personal note that can be included to help detail your wishes and provide reasoning for the decisions.

Protecting Your Minor Children. Name a legal guardian for them in your will, in the event both parents die. Same-sex couples must make sure that both parents have equal rights, especially in a case where one parent is the biological parent. If the surviving spouse or partner isn’t the biological parent and hasn’t legally adopted the children, don’t assume they’ll automatically be named guardian.  These laws vary from state to state.

Dissolve Old Unions. There could be challenges, if you entered into a civil union or domestic partnership before your marriage was legalized. Prior to the 2015 marriage equality ruling, some same-sex couples married in states where it was legal but resided in states where the marriage wasn’t recognized. If you and your partner broke up, but didn’t legally dissolve the union, it may still be legally binding. Moreover, some states converted civil unions and domestic partnerships to legal marriages, so you and a former partner could be legally married without knowing it. If a former union wasn’t with your current partner, make certain that you legally unbind yourself to avoid any future disputes on your estate.

Review Your Real Estate Documents. Check your real estate documents to confirm that both partners are listed and have equal rights to home ownership, especially if the home was purchased prior to the legalization of same-sex marriage or if you aren’t married. There are a few ways to split ownership of their property. This includes tenants in common, where both partners share ownership of the property, but allows each individual to leave their shares to another person in their will. There’s also joint tenants with rights to survivorship. This is when both partners are property owners but if one dies, the remaining partner retains sole ownership.

Estate planning can be a complex process, and same-sex couples may have more stress to make certain that they have a legally binding plan. Talk to an experienced estate planning attorney about the estate planning process to put a solid plan to help provide peace of mind knowing your family is protected.

Reference: Insurance Net News (June 30, 2021) “What Same-Sex Partners Need to Know About Estate Planning”

Should I Try Do-It-Yourself Estate Planning?

US News & World Report’s recent article entitled “6 Common Myths About Estate Planning explains that the coronavirus pandemic has made many people face decisions about estate planning. Many will use a do-it-yourself solution. Internet DIY websites make it easy to download forms. However, there are mistakes people make when they try do-it-yourself estate planning.

Here are some issues with do-it-yourself that estate planning attorneys regularly see:

You need to know what to ask. If you’re trying to complete a specific form, you may be able to do it on your own. However, the challenge is sometimes not knowing what to ask. If you want a more comprehensive end-of-life plan and aren't sure about what you need in addition to a will, work with an experienced estate planning attorney. If you want to cover everything, and are not sure what everything is, that's why you see them.

More complex issues require professional help. Take a more holistic look at your estate plan and look at estate planning, tax planning and financial planning together, since they’re all interrelated. If you only look at one of these areas at a time, you may create complications in another. This could unintentionally increase your expenses or taxes. Your situation might also include special issues or circumstances. A do-it-yourself website might not be able to tell you how to account for your specific situation in the best possible way. It will just give you a blanket list, and it will all be cookie cutter. You won't have the individual attention to your goals and priorities you get by sitting down and talking to an experienced estate planning attorney.

Estate laws vary from state to state. Every state may have different rules for estate planning, such as for powers of attorney or a health care proxy. There are also 17 states and the District of Columbia that tax your estate, inheritance, or both. These tax laws can impact your estate planning. Eleven states and DC only have an estate tax (CT, HI, IL, ME, MA, MN, NY, OR, RI, VT and WA). Iowa, Kentucky, Nebraska, New Jersey and Pennsylvania have only an inheritance tax. Maryland has both an inheritance tax and an estate tax.

Setting up health care directives and making end-of-life decisions can be very involved. It's too important to try to do it yourself. If you make a mistake, it could impact the ability of your family to take care of financial expenses or manage health care issues. Don’t do it yourself.

Reference: US News & World Report (July 5, 2021) “6 Common Myths About Estate Planning”

Suggested Key Terms: Estate Planning Lawyer, Inheritance Tax, Probate Attorney, Estate Tax, Health Care Directive, Powers of Attorney, Health Care Proxy

What Should LGBTQ+ People Know about Estate Planning?

Of course, it can be incredibly hard to experience a period of mourning, loss and grief, and then also be forced to navigate the legal complexities and probate and estate planning and try to determine these complicated issues.
Fox 17’s recent article entitled “Estate planning can be complicated for LGBTQ+ families” explains that when someone passes away without a will, they’re considered to have died intestate.
States all have different laws that apply, when someone dies intestate or without a will.
State law typically says that blood relatives have priority, if you’re not married. Therefore, if you’re in a same-sex relationship but not married (or any relationship but not married), the result may not be what you want.
There are several specific estate planning documents that everyone should have in place to make certain that their loved one is protected and provided for, in the event of their passing or being incapacitated.
This means that every adult should have a basic estate plan that includes a will, perhaps a trust and a set of healthcare documents that plan for incapacity during their lifetime.
If you don’t have a health care directive, and you're in an unmarried relationship, your partner may not have any legal rights to care for you or make decisions on your behalf.
You can state your wishes in a medical power of attorney or healthcare directive.
If you fail to have these documents squared away, a partner could even face difficulties caring for an adopted child, in some situations.
There are many cases of same-sex couples where there's one biological parent, and the other parent is not a biological parent but hasn’t yet legally adopted the child.
Without that legal adoption in place, that non-biological parent may not have any legal rights to care for those children, if the biological parent were to pass away.
Don’t let unfortunate and even disastrous circumstances result from your failure to plan your estate.
Speak with an experienced estate planning attorney today.
Reference: Fox 17 (Grand Rapids MI) (June 18, 2021) “Estate planning can be complicated for LGBTQ+ families”