Many estate planning documents only take effect when a person dies. Wills, and trusts designed as testamentary instruments, dictate what happens to property when the original owner passes away. However, estate planning is not only about what happens upon one’s death. People often need assistance with their legal, medical and financial affairs while they are still alive, particularly in the event of an emergency or incapacity. This is where “living” documents come into play.
“Living” documents are estate planning instruments that take effect while a person is still alive. These documents can grant authority to trusted individuals over critical personal matters in the event that the document’s creator is incapacitated or unable to make decisions. Without a valid legal instrument in place, families may be forced to seek court intervention to obtain the authority needed to act.
The “living” documents commonly drafted in Texas include:
- Statutory Durable Power of Attorney for financial issues
- Medical Power of Attorney with Designation of Health Care Agent
- Advance Medical Directives to Physicians and Family or Surrogates (Living Will)
- Declaration for Mental Health Treatment
- Out-of-Hospital Do-Not-Resuscitate (DNR) order
Powers of attorney provide critical support for those who cannot express their medical wishes to healthcare professionals or manage their finances. Many are structured as springing powers of attorney, meaning they only take effect upon a triggering event such as medical incapacity. Durable powers of attorney include language that ensures they remain in effect even if an individual becomes permanently incapacitated. The agent or attorney-in-fact named in a durable power of attorney can perform many of the same functions as a court-appointed guardian, but with the important distinction that the incapacitated person selected the agent on their own instead of relying on the courts to appoint someone to that role.
Advance medical directives also serve an important function. A Directive to Physicians and Family or Surrogates, often referred to as a living will, allows individuals to provide clear instructions regarding end-of-life care and life-sustaining treatment, including measures such as artificial respiration. A Declaration for Mental Health Treatment allows for advance planning in the event of a mental health crisis, while an Out-of-Hospital Do-Not-Resuscitate order can limit emergency resuscitation efforts in certain circumstances.
In addition to the above, trusts also direct assets to beneficiaries while the grantor is alive instead of solely after their passing.
The guidance provided in these “living” documents can prevent loved ones from second-guessing their choices or arguing about patient’s preferences when they cannot express them on their own behalf. An estate planning attorney can help people understand what documents they require and the language necessary to enforce their specific intentions.
Hayes, Berry, White & Vanzant, LLP assists Texans with the preparation and revision of estate planning documents. Schedule an initial consultation in our Denton, Flower Mound or Gainesville locations by calling 940-230-2386 or contacting us online.
