Using a medical power of attorney to accompany your Living Will is highly recommended. It allows you to appoint an agent to make health care related decisions on your behalf when you become incapacitated or unable to communicate your health care wishes. In our example, the Principal named Greg Smith appointed his good friend George Leary to be his health care agent.
Within reason, you can address how you would like them to use what you have left them. While children, natural or adopted, have a statutory right to inherit, a will allows you to disinherit a child if you choose to do so (check your state laws for the specific details about this). A person can disinherit a spouse as well, under certain circumstances. However, you will need to be aware of the laws governing your state—whether it is a common law state, a community property state, or an equitable distribution state; a person may only disinherit a spouse in a community property state. Each has a different set of stipulations on what and how much can be disinherited. Note, too, that a person can only disinherit a spouse or child through a will.
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Obtain the proper forms. After you have chosen which types of powers that you want to grant your agent whom you wish to be your agent, you will need to ensure that you are executing the proper forms. Different legal forms and documents are available to fit different situations. The most recent versions of these Texas forms are available online at http://texasprobate.com/consumer-forms/disability-planning-forms/.
Decide what type of power of attorney is right for you. There are different types of powers of attorney that you may want to execute, depending on your situation. Some cover only financial issues, whereas others address health care issues.[2] These powers of attorney can either become effective immediately, or on a future date, when you are unable to make decisions on your own behalf, due to disability, illness, or injury. The state of Texas has established a Statutory Durable Power of Attorney law[3] that allows you to choose the type of power of attorney that best accomplishes your goals.
One relatively new aspect of estate planning is digital assets. Things like email accounts, social media pages, blogs, websites, and media stored in the Cloud all qualify as digital assets, and you’ll need to decide who gets which assets after you pass away. Many of us now use Cloud services to store our family photos and videos instead of traditional photo albums and physical videos, so your family will want to be able to access these cherished memories.
A medical power of attorney is also known as a “health care proxy”— and this person acts as an agent to make medical decisions for you if you can’t talk to the doctors yourself. So instead of a piece of paper, you have a person you trust to speak on your behalf—acting in your best interests—while honoring your original wishes. So, you would need to have a conversation with them to make sure they know how you feel about important medical decisions.
You should also consider how you will pass a portion of your estate to a minor child through a will. A will places your decisions in the hands of the judge presiding over your estate transfer. Your testamentary will carries out your wishes from beyond the grave. A will also allows you to give insight and direction over the handling of assets your beneficiaries will receive.
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The revocation must be in writing and may be done by a subsequent power of attorney. Notice should be served on the agent and any other party who might rely on the power. The notice should be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with a lawyer to be sure proper procedures are followed.
Yes. If the incapacitated person executed a valid durable power of attorney before the incapacity, it may not be necessary for the court to appoint a guardian, since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a durable power of attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.
The agent will always want to add after his or her signature that the document is being signed “as agent for” the principal. If the agent signs only his or her own name, the agent may be held personally responsible for whatever was signed. As long as the signature clearly indicates that the document is being signed in a representative capacity and not personally, the agent is protected. Though lengthy, it is, therefore, best to sign as follows:
Living wills are often used with a document called a durable power of attorney (DPOA) for healthcare. In some states, in fact, the two documents are combined into one. A DPOA appoints someone to carry out the wishes about end-of-life treatment that are written down in a living will or medical directive. The person named is called the “agent,” “healthcare proxy,” or “attorney-in-fact” of the person who makes the DPOA.
A power of attorney may be: special (also called limited), general, or temporary. A special power of attorney is one that is limited to a specified act or type of act. A general power of attorney is one that allows the agent to make all personal and business decisions[10][11] A temporary power of attorney is one with a limited time frame.[12] If ever required, a durable power of attorney can be revoked or changed as long as the principal is still mentally competent to act.
• Review your account info. Regularly reviewing online bank/credit account transactions can help you spot suspicious activities or purchases. If you do stumble upon something fishy, be sure to report it to your bank or credit institution immediately. Most banks these days also have a way to report suspicious transactions directly in your list of transactions.
The principal may hold the power of attorney document until such time as help is needed and then give it to the agent. Often, a lawyer may fulfill this important role. For example, the principal may leave the power of attorney with the lawyer who prepared it, asking the lawyer to deliver it to the agent under certain specific conditions. Because the lawyer may not know if and when the principal is incapacitated, the principal should let the agent know that the lawyer has retained the signed document and will deliver it as directed. If the principal does not want the agent to be able to use the power of attorney until it is delivered, the power of attorney should clearly require the agent to possess the original, because copies of signed powers of attorney are sufficient for acceptance by third parties.
Fill out your forms. You will need to fill out your power of attorney forms completely. It is advised that you have your agent, or the person whom you are granting the powers, present when you decide to fill it out. You also can have your attorney draft the forms for you. If using the statutory form, you will need to affirmatively initial each of the individual powers that you wish your agent to have. Here is the other information that you will need to provide on the forms:
A living will is a legal document, also known as an advance health care directive, that details how you want to be cared for if something unexpectedly impacts your health and you wind up on life support. A living will also forces you to answer those unthinkable questions, such as whether or not you want doctors to do everything they can to keep you alive, even if the outlook is hopeless, or give them permission to let you go if you're incapacitated.
Most living wills have the option of adding a health care agent to carry out the patient’s intended wishes. This is helpful in the event that there is a gray area where maybe the agent selected feels there is a good chance for survival and will opt against a decision made in the living will. Otherwise, the Principal can choose to neglect this portion of the document and have doctors and medical staff specifically adhere to what is written in the living will.
One relatively new aspect of estate planning is digital assets. Things like email accounts, social media pages, blogs, websites, and media stored in the Cloud all qualify as digital assets, and you’ll need to decide who gets which assets after you pass away. Many of us now use Cloud services to store our family photos and videos instead of traditional photo albums and physical videos, so your family will want to be able to access these cherished memories.
A power of attorney is valid only if you are mentally competent when you sign it and, in some cases, incompetent when it goes into effect. If you think your mental capability may be questioned, have a doctor verify it in writing. If your power of attorney doesn't specify requirements for determining mental competency, your agent will still need a written doctor's confirmation of your incompetence in order to do business on your behalf. A court may even be required to decide the competency issue in some circumstances.
When a criminal fraudulently identifies themselves to police as another individual at the point of arrest, it is sometimes referred to as "Criminal Identity Theft." In some cases, criminals have previously obtained state-issued identity documents using credentials stolen from others, or have simply presented a fake ID. Provided the subterfuge works, charges may be placed under the victim's name, letting the criminal off the hook. Victims might only learn of such incidents by chance, for example by receiving a court summons, discovering their drivers licenses are suspended when stopped for minor traffic violations, or through background checks performed for employment purposes.
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While identity theft can happen to anyone, there are some things you can do to reduce your risk. If you think someone is using your personal information to open accounts, file taxes, or make purchases, visit IdentityTheft.gov to report and recover from identity theft. Looking for identity theft resources to share in your community? Visit ftc.gov/idtheft.
Like a power of attorney, a trust may authorize an individual (the “trustee”) to act for the maker of the trust during the maker’s lifetime. Like an agent, the trustee may manage the financial affairs of the maker of the trust. A trustee has power only over an asset that is owned by the trust. In contrast, an agent may have authority over all of the principal’s non-trust assets. Another important distinction is that a trustee may continue acting for the maker of the trust after the maker of the trust dies. In contrast, the power of attorney expires upon the death of the principal. Whether a trust or an agent is the most appropriate tool for a specific situation is a question that should be addressed to an attorney.
Identity thieves sometimes impersonate dead people, using personal information obtained from death notices, gravestones and other sources to exploit delays between the death and the closure of the person's accounts, the inattentiveness of grieving families and weaknesses in the processes for credit-checking. Such crimes may continue for some time until the deceased's families or the authorities notice and react to anomalies.[31]
You have the right to help plan your care. To help with this plan, you must learn about living wills and how they are used. You can then discuss treatment options with your healthcare providers. Work with them to decide what care will be used to treat you. You always have the right to refuse treatment.The above information is an educational aid only. It is not intended as medical advice for individual conditions or treatments. Talk to your doctor, nurse or pharmacist before following any medical regimen to see if it is safe and effective for you.
The power of attorney is effective as soon as the principal signs it. However, a durable power of attorney executed before Oct. 1, 2011, that is contingent on the incapacity of the principal (sometimes called a “springing” power) remains valid but is not effective until the principal’s incapacity has been certified by a physician. Springing powers of attorney may not have been created after Sept. 30, 2011.
Fill out your forms. You will need to fill out your power of attorney forms completely. It is advised that you have your agent, or the person whom you are granting the powers, present when you decide to fill it out. You also can have your attorney draft the forms for you. If using the statutory form, you will need to affirmatively initial each of the individual powers that you wish your agent to have. Here is the other information that you will need to provide on the forms:
Dwight Eisenhower said, “In preparing for battle I have always found that plans are useless, but planning is indispensable.” It is the advisor-lead planning process itself that is of value to the clients, not the documents. By planning I mean 1) speculating about the cause and effect relationship between what you do today and what will happen in the future relative to your objectives 2) asking “What facts, if they exist, would prevent you from achieving your objectives?” and 3) finding out how likely it is that those facts could exist. By examining these alternative facts, and what to do if they occur, you can anticipate possible future situations and know what to do when it happens.
You are in a vegetative state: A living will may also take effect if you stay in a long lasting or permanent vegetative state. A vegetative state means that your mental functions are reduced or lost, but your basic body functions still work. Your mental functions include your ability to think, be aware, or be fully conscious or awake. Your healthcare providers will not expect you to regain these functions if you are in a vegetative state. You will not be able to communicate, interact with others, or live as you did before. A severe brain injury can sometimes lead to a persistent or permanent vegetative state.
If you are in the hospital, you or your family will be asked if you have any advance directives, such as a living will. If you do not have a living will or other advance directive, your healthcare providers may give you treatments to prolong your life. They may give you treatments you do not want. You could live for months or years with these treatments, but not be conscious or aware. You may want to limit your treatments, but your family may want you to have all treatments. If you have a living will, your healthcare providers can follow your wishes for treatment.
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Yet, trustee transitions aren’t always smooth. Financial institutions and others who deal with the trust must be convinced to accept the authority of a successor trustee. Financial firms, in particular, require a high level of substantiation before they will accept the successor trustee’s directions. While a successor trustee might not have to go to court to take actions, it could take some time and expense to complete the transition.
