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 specifies who can make medical decisions if someone isn’t able to make them for yourselves. They also usually come along with a HIPAA release, which specifies who has access to medical records. Hospitals routinely ask for these, and it’s always a good idea to have one in place. In these strange times, at least one hospital has refused to admit anyone to see the patient who was not also the person’s medical attorney-in-fact.
Statutory Durable Power of Attorney. This document specifies who can make financial decisions for you, among other things. In a pinch, they enable an attorney-in-fact to access the principal’s bank account to pay their bills.
Advance Directive. Sometimes known as a “living Will,” a directive specifies whether or not a person wants the plug pulled on them if they are on life support and have no realistic hope of recovery.
Will. A Will specifies who gets your property when you die, and also specifies who you want to serve as your executor. A Will must be probated upon a person’s death – meaning, someone has to take the Will to Court, ask the Will to be admitted, and ask the Court to appoint an executor. An executor is a person, appointed by a Court, who is responsible for creating an inventory of the deceased person’s property, paying bills, and distributing the remainder in accordance with the decedent’s will.
People who do not have a Will at the time of their death have a different type of probate, called intestate. In short, if you don’t have a Will, the State of Texas has one for you. Intestate probate is more complex and expensive than one where a Will is involved, and it also takes longer to complete.
Declaration of Guardian. There are two types of declarations. One applies to minor children, whereby a parent can specify who they want to serve as guardian of their minor children if they are unable to do so. The other specifies who they want to serve as their own guardian if they need one. If someone does not have a Statutory Durable or Medical Power of Attorney, guardianship may be necessary to manage the person’s affairs. Guardianships are complex and expensive court proceedings.
Editor’s Note: Colin Smith is a member of the State Bar of Texas, 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 go to www.ColinSmithLaw.com.