The Law Office of Jo Ann Bui Leslie
Joan Leslie*

* Board Certified, Estate Planning and Probate Law by the Texas Board of Legal Specialization
Specializing in Wills, Trusts, Estate Planning, 
Guardianship, and Probate & Estate Administration

Office Visits By Appointment Only: Dallas, Texas 75206

 

ADDRESSING INCAPACITY


If you become mentally or physically incapacitated to the point that you are no longer able to care for yourself,  who will handle your financial affairs and make medical decisions for the remainder of your life

If you have not authorized someone to act on your behalf,  third parties (such as banking and other financial institutions, and even medical professionals) may refuse to allow your relatives, including your spouse,  to handle any financial or medical matters for you.

BEWARE:  In general,  although Texas has a list of priorities of WHO can act on your behalf in regards to certain things such as medical decisions,  this list of priorities is not always as black and white as you may think.  In general,  although spouses do have priority of right in regards to certain actions on your behalf,  that does not always mean that the specific financial or medical institution has to allow such a prioritized person to act for you. They typically want to see your specific Powers of Attorney to act on someone's behalf.  

Additionally,  if you are an adult and are not legally married (for example single adults and GLBT couples),  your life partners are not given any priority under the law!  

These facts make it that much more important to have these documents in place before it is too late.  The documents listed below can protect you during your life and are truly economical to prepare (especially in relation to the amount that can be saved if you do not have these documents in place in the event you become incapacitated). 


Who will decide?  You or the Court?

If action is required and you have no plan in effect,  it may be necessary for your loved ones to have court involvement to grant them the powers needed to control your financial and medical affairs.  When the court becomes involved in such a matter, it typically involves a determination of your incapacity and appointing someone as your legal guardian. Guardianships can turn into a cumbersome, expensive and lengthy legal process for the person who just wants to take care of you. 

Generally,  the need for a guardianship can be eliminated by having the proper planning documents in place before a person becomes incapacitated. Such planning typically includes the documents listed directly below but in more severe instances, a Revocable Living Trust may be necessary to continue the management of your property. (See more regarding this topic under Guardianships.)  

Many people often overlook the importance of these documents because although they know that death is inevitable,  they do not always think of the possibility that they could become incapacitated.

These documents are often more important than will planning documents but are too often overlooked. Incapacity is not uncommon in many elderly adults.  It commonly occurs in the form of alzheimer's and dementia.  Incapacity can also happen to young, healthy adults. In these instances, most young adults had not thought or known to take the opportunity to make a one-time, minor expense to have the proper legal document to protect them in this event.  



DOCUMENTS NEEDED TO PROTECT YOU DURING INCAPACITY

These documents protect you during your life and have no effect after your death.  

Having these documents prepared is relatively inexpensive and should be prepared while you are in good mental health. 


POWER OF ATTORNEY ["Property/ Financial"] 

A power of attorney is a legal document in which you grant another person ("agent") with the authority to act on your behalf. It is used to control only your financial affairs, whereas a medical power of attorney is used to control medical decisions affecting your well-being. The authority granted to your agent depends on the specific language in the document.  

Different Types of Powers of Attorney

There are a few different types of powers of attorney, such as "limited power of attorney", which authorizes your agent to do only specific things for you or only under certain circumstances, and on the opposite spectrum,  a "general power of attorney", which is grants much broader powers to your agent enabling them to do almost everything you could do in regards to your own finances.

When are these powers effective?

Additionally, there are other types of powers of attorney that include key language impacting when they are to become effective or when they will no longer be effective. Such powers of attorney are often referred to as a "durable power of attorney" and "springing power of attorney".  Although you may not necessarily see the exact name titled across the document, the definition of what type of power of attorney you have is determined by the language included within the document.

Downloadable Power oF Attorney Forms- Rely on With Caution

Although it is not difficult to find power of attorney forms on the internet, you should use and rely on these with caution. As there is typically little or no accompanying explanation of the exact powers, effectiveness, and timeframe that may statutorily be given under the type of power of attorney form you are downloading,  you could end up executing a document that grants considerable power to your agent or in the reverse, not granting the powers that are truly needed.  

Under Texas law, each listed power in a power of attorney document has a detailed statutory definition of what that power entails and how, substantially, that power of attorney form should read, in order to be considered a valid power of attorney. If you are relying on that document to allow your agent to manage your affairs in the event you become incapacitated,  you should talk with your attorney who concentrates in these matters to make sure that the proper language is included to protect you.  

Additionally,  working with a competent attorney who knows the nuances of this area of law can give you practical advice on how to incorporate these documents into your life and additional recommendations on how ensure their efficacy with institutions that you will actually need to present such legal documents to.  


MEDICAL POWER OF ATTORNEY

A medical power of attorney is a legal document in which you, as a competent adult ("principal), designate a person ("agent") you trust to make health care decisions on your behalf in the event you are ever unable to make such decisions. If, during the course of your life, you become seriously injured, ill, or otherwise unable to make decisions regarding your health care, it would be helpful to have legally appointed someone in advance who knows your values and whom you trust to make those decisions for you.  

Under Texas law,  certain persons have priority to make these decisions for you if you do not have a validly executed medical power of attorney in place in the event you become incompetent.  

If you are an unmarried adult who has parents but are estranged from them and perhaps have a relative, a friend or a partner who you would want to make those decisions for you,  you should consider having a medical power of attorney designating such a person.


DIRECTIVE TO PHYSICIANS (also known as a "Living Will") 

A "Directive to Physicians" is a legal document that allows you to instruct your physician to withhold life sustaining procedures if you become unable to make medical decisions for yourself and are suffering with a terminal condition from which you are expected to die within six months, even with available life-sustaining treatment.  

This is sometimes referred to as a "Living Will". A "Living Will" should not confused with a "Living Trust", which is a completely different type of legal document.

Story of TERRI SCHIAVO 

The "Living Will" received large notoriety a few years ago when national media gave attention to the story of a young woman named Terri Schindler Schiavo.  Terri suffered severe brian damage from alleged chemical imbalance caused by an eating disorder.  

At the time Terri lapsed into incapacity, she was only 26 years old but had recently married.  Because Terri had not left any legally valid instructions in the event of her incapacity, under the law (in Florida where she lived) her husband became the person able to make all decisions regarding her medical care.  

As Terri continued life by being fed through a feeding tube for several years,  a lengthy and heated debate grew between Terri's parents, who wanted to keep her alive, and her husband, who did not want to keep her alive in such a condition.  She remained on a feeding tube for over ten years, all the meanwhile,  her husband remained married to her but began dating as time went on.   

Additionally, because Terri did not have a valid will at the time of her death,  the intestacy laws dictated that her entire estate would be distributed to her husband. After he had won a large sum of money against Terri's doctors from a lawsuit he filed on her behalf,  another issue became the fact that his decision would also mean that he would inherit the large sum of money obviously posed a conflict of interest for him to decide her fate but that didn't matter because the law allowed the spouse these rights since she had not left such instructions. Terri's parents tried to battle this out in court, and argued that she had life worth living.  

Unfortunately, without validly executed legal instructions expressing your wishes, the law has to let someone decide, and in Terri's case, the Judges could not change the law as it existed.    

Discuss these end-of-life ethical decisions with your loved ones

While in law school,  I researched many of the legal and ethical issues facing Terri, and another similar young woman named Karen Quinlan, and their families.  My in-depth research caused me to encounter personal insights on end-of-life decisions and further my belief that planning could potentially eliminate similar controversies in the event you or someone you love becomes incapacitated to a similar degree as Terri. From studying these stories,  I came to conclude that the "Directive to Physicians" is not always as black and white as you may think and by thinking about this ahead of time, you may be able to address many of these grey areas. 


DECLARATION OF GUARDIAN IN THE EVENT OF LATER INCAPACITY

Guardianships- Cumbersome and Expensive Court Process

In the event that you do not have valid powers of attorney and you become incapacitated, a court can appoint a guardian to make these decisions on your behalf.  With that said, be aware that you become an incapacitated adult that owns assets and a guardianship becomes necessary,  these types of guardianships can become a cumbersome, expensive, and lengthy court process, We as planners try to avoid this with proper planning. 

Because it is not a perfect world though,  there are times when even such properly drafted powers of attorney no longer "work" to protect you, and a court supervised guardianship may then become necessary.  

If your properly executed power of attorney documents, for whatever reasons, do not get accepted by financial or medical professionals,  Texas law does allow you the ability to designate who you would want to serve as guardian. This type of document must be prepared before you become incapacitated and is often seen as a "back-up" to your power of attorney documents.  It is not unlikely that this will happen but having the proper powers drafted is more beneficial because it is considered the least restrictive alternative between the two.    

Unfortunate Reality of This Document

Oftentimes, the problem that occurs when a person becomes incapacitated and has a Declaration of Guardian document,  is that the agent named in this document calls an attorney and tells the attorney he/she needs a guardianship over such incapacitated person.  Too often, the agent neglects the fact that they may still be able to act under the incapacitated persons power of attorney documents (if they are also agent under those documents). Doing so could potentially avoid a court supervised guardianship and the unnecessary use of funds out of the guardianship estate. In a court supervised guardianship, once a guardian is appointed,  the guardian will have to work with their attorney to ask the court for approval in regards to every action regarding your finances and make required reports concerning your health. Ultimately this becomes a drain on your funds and an everyday burden for your agent.  All of this information becomes public record in the court files.  

In the event that there is no one you trust, you may actually prefer to have a guardian rather than an agent acting under a power of attorney.  In such a case, then you may prefer that a court watch the actions of a named guardian.