The title of this blog is our long-time estate planning mantra here at the Jacobson Law Firm, P.C.. That statement has become especially poignant in the last 2 months, what with COVID-19 and all, but the stats on COVID as compared to the flu just reinforce that things like wills, trusts, medical and financial powers of attorney, etc. aren't just for "rich folks", they're for ALL folks. Below is a short primer on each kind of advance directive:
The Will – The last will and testament is an express, written statement of who gets your stuff when you die. Although there are a few ways you can do this without a notary and two witnesses, the safe way is to have an attorney draft it for you to ensure it complies with the requirements of the Texas Estates Code. There are a few required parts of a will, but basically it lets you identify your family, dispose of your stuff (either by giving specific things to specific people or by “general bequest”, meaning “all of my property to my wife/children/church/whoever”) and appoint an executor to handle your debts and the disposition of your property according to your stated directions. Click here for a video explanation of Texas Wills.
The Statutory Durable Power of Attorney – also called a financial power of attorney, this document lets you designate somebody to, in essence, be you to third parties. With this document, the person you designate can either have the power to do some things but not others (making it a special power of attorney), or to do anything in your name (the general power of attorney). Either way, you can also designate whether it takes effect immediately and doesn’t terminate when you’re determined to be incompetent, or whether it doesn’t become effective until you’re incompetent. This is an exceedingly powerful document, so choosing the right person is critical. Click here for a video explanation of the Statutory Durable Power of Attorney.
The Medical Power of Attorney – as the name implies, this document lets you designate, ahead of time, a person who can consult with your health care providers and make treatment decisions for you in the event you’re incompetent, either temporarily or permanently. As long as you’re able to communicate and consult with your health care providers, the person can’t make decisions for you, but as soon as you are determined to be unable to communicate effectively with your HCPs, the person you designate can take over the decision-making on your behalf. If you regain competence, the MPOA goes back into hibernation – it’s only effective when you can’t participate in your own care. Click here for a video explanation of Medical Power of Attorney.
The Directive to Physicians – also called a living will, this is the document whereby you direct, in advance, what you want your physician to do if you have a terminal or irreversible condition and you can’t communicate with your HCPs. The normal choices are either, “Do everything you can, even if it’s futile” or “keep me comfortable and let me go. There are a couple of other limitations, such as that your death has to be expected within six month even if they try “heroic measures” to save you, and you can designate treatments they have to try before they pull the plug. This document is a great way to alleviate placing even more burden on your family at a time when they’re already in a very difficult emotional position: you’ve already said what you want your physician to do, so the family doesn’t have to make that decision. Click here for a video explanation of Directive to Physicians.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. If you have questions on any of the above, which are the basic documents we think everybody needs, please DON'T just go online and download stuff. Contact an experienced estate planning attorney and make informed decisions.
Keep 'em washed! Mask up! Stay brave!
The photo to the left is the Jacobson Law Firm crew, all gloved and masked up, per our COVID-19 protocol when clients come in to execute their estate planning documents. I'm immensely proud of all of them. I also had my first probate hearing via Zoom this afternoon, proving up a lost will by video. It was a little awkward but it worked. Well. Judge Vasquez in Probate Court 2 has the process down pat. We've filed half a dozen documents that usually require notarized signatures but we've used the statutorily authorized unsworn declaration language instead (it's been there for years but hardly anybody ever used it in court proceedings before now).
What I'm finding is that the more of the "standard practices" that get waived for practical reasons during this time, the easier the process is. Which makes me wonder: when COVID/stay home/wear PPE, etc. is over, why not institute a new test for what's necessary? Seriously, shouldn't the test for whether we re-institute some process be that the person wanting to do so has to prove it's necessary and not just "the way we've always done it"? Because the ingenuity, practicality and creativity of the American people in finding work-arounds that actually work - a long tradition of this great nation - has once again triumphed. We should take pride in that and remind ourselves that "Because" is never a good answer to, "Why do we do it this way?".
Stay safe, wash those hands, be smart and be creative - it's the American way.
Musings, observations, the occasional whineage and some funny stuff.