FAQFrequently Asked Questions (click on a topic to go directly to the section)
An overview of your estate, which might include:
In most cases, yes. Every person has unique and individual circumstances so the answer will depend on their specific situation. It is definitely worth having a consultation with an attorney to determine what each individual's specific needs may be. While there are many “do it yourself” Will kits on the market, I recommend that each person have an attorney prepare their Will, or at a minimum review their Will. Probating a Will in Texas is fairly simple and inexpensive if your will has certain provisions and is executed with all the due formalities required by law. Missing any of those formalities may result in an invalid Will and significantly increase the costs of probating your estate. Also, an attorney can assist you in making long term decisions and additional financial planning through your Wills.
A Will is generally the easiest and least expensive way to administer your estate, which is even more important with smaller estates. Also, a Will can include a provision that names a Guardian of minor children should something happen to both parents. This is your opportunity to designate the person of your choice to raise your children and manage any estate left to the minor by the parents.
Most Wills are probated within a few months of death. It is possible to probate a Will at anytime within four years of the Decedent’s date of death. After four years the process becomes more difficult, costly and less certain.
In Texas, the cost of probating a Will is relatively inexpensive. Depending on the Will and other circumstances, a lot of attorneys charge a flat fee for probating a Will plus additional out-of-pocket expenses including filing fees. Attorneys in Texas are NOT paid a percentage of the Decedent’s estate.
A Durable Power of Attorney is an asset management device. It appoints an agent to handle your financial, legal and business matters on your behalf. The “durable” feature means the agent’s authority continues even in the event of your incapacity. Therefore, you must implicitly trust the person and successor you name as your agent. 9. What is an Advance Directive? An advance directive is written instructions about your medical care in the event you become unable to make your own medical decisions. In the absence of an advance directive, the doctors will have to try to identify your “nearest kin” to make decisions for you. Most folks would rather specify who the decision maker will be.
A Directive To Physicians (“living will”) is your statement of treatment preferences. You can opt to have life support continued or discontinued. You can specify the conditions under which you are willing to have it continued and the treatments you are willing to undergo.
A Medical Power of Attorney is your designation of who you want to make medical decisions for you if you cannot. It will avoid misunderstanding and conflicts. It allows you to vary from the natural order of decision-making. The key factor is to pick someone who really knows you well enough that they will understand what you would want to have happen AND who will follow through on your wishes. HIPAA is a new law that restricts the doctors from disclosing any of the patient’s medical information without written authorization. Most estate planning now includes a global HIPAA Authorization that permits the persons named in the Medical Power of Attorney to have access to the person’s medical information. The documents will be valid in all states. We often update documents to assure smooth administration within a particular state. Sometimes we replace documents if there is a better planning solution in the new state. 14. What should I be discussing with my parents right now while they’re alive?
I am most often contacted by the parents themselves, although I have a number of cases where the initial contact is through the children. I am comfortable dealing with the children initially to understand the family situation and the issues. I have an ethical obligation, however, to make certain that the attorney-client relationship is clear and that there is no misunderstanding who I represent. I will be an advocate and counselor for the parents and work for their best interests.
There are ways to transfer assets, establish a “Miller” trust or other vehicles to reduce your parent’s countable resources or income so that they can qualify for Medicaid or other government assistance. There are very specific rules and regulations and you should check with a knowledgeable attorney before moving any assets. These rules change frequently.
Elder law attorneys have decided to spend more of their time and focus on the issues confronting seniors, and generally have more experience and specialization in dealing with the issues that more commonly affect older adults.
Elder law is a subset of estate planning, and elder law attorneys do many of the same things as regular estate planning attorneys:
Elder law attorneys also handle matters that are more specific to seniors:
Generally, any attorney can decide to focus his practice in a specific area and advertise in that area. Beyond being a licensed attorney, there is no additional requirement or regulation.
Texas Board of Legal Specialization has a searchable database for attorneys that are board certified in estate planning and probate. www.tbls.org
The number one criteria in selecting an attorney is rapport, trust and confidence. If the family member has an attorney they know, it doesn’t hurt to start with him or her. Attorneys have an ethical obligation to not take on a representation in which they are not competent. An attorney will either engage co-counsel or refer the matter to a specialist.
No magic age. AARP starts sending membership cards at age 50, and many senior discounts become available at age 55. The longest lead time for dealing with issues is generally 3-6 years to adequately prepare for Medicaid qualification.
Take responsibility to address these issues - for yourself, and for the older adults within your family. Dealing with this cluster of issues is good stewardship. 25. What is a guardianship? A guardianship occurs when a court determines that a person lacks capacity. An “incapacitated person” is:
A person under a guardianship is called a "Ward."
Yes. A Guardian of the Person has:
A Guardian of the Estate takes control of and manages all of the Ward's personal property, including cash, stocks, bonds, automobiles and other tangible property. The Guardian of the Estate also must manage and insure the Ward's real property. A temporary guardianship may be requested in cases of imminent harm to the Ward or the Ward’s estate. A temporary guardianship can be granted in a matter of days, and generally expire after 60 days. Temporary guardianships are granted much less frequently than permanent guardianships and greatly increase the cost of the guardianship.
A guardianship is established through a court proceeding. Usually, a family member or concerned friend hires an attorney to file an Application for Appointment of Guardian. The application is generally filed in the county where the Ward resides. In the event someone is concerned about an individual but does not want to intervene directly, an information letter can be sent to the probate court of the county, and the judge will appoint someone to investigate the situation and make a report.
The application is usually supported by a letter signed by a physician licensed in Texas stating the nature and degree of the Ward’s incapacity. The letter must be based on an examination that was performed within 120 days prior to the filing of the application.
As long as third party institutions are allowing you to manage your mother’s affairs with the power of attorney, you can request to be appointed as guardian of the person only. However, once you file the proceeding, the court may review the process by which your mother’s estate is being handled and may require the appointment of a guardian of the estate.
No, although your parents have indicated that it is their wish that you become Guardian of your brother (when and if it becomes necessary), it takes a court proceeding to official be appoint you as Guardian.
Sometimes a residential facility or nursing home will want an incapacitated person suffering from dementia, mental retardation, autism, etc. to have a Guardian of the Person. This appointed person can authorize medical treatments and assist with residential placement of the Ward, even if the Ward is the beneficiary of a government program such as Medicaid or SSI.
Guardianships are usually considered a “last resort” and are put in place when all other alternatives have been exhausted. Sometimes a person is no longer able to sign powers of attorney and there is no other option than appointing a Guardian to handle the person’s financial affairs or help with residential placement and medical decisions. A guardianship is often initiated because the agent holding the person’s powers of attorney is not taking care of the principal or managing their estate as a prudent person should. Guardianships are invasive and remove almost all of a person’s rights and privileges, such as driving, voting, and handling their own funds. Guardianships are also expensive when compared to the alternative of using a power of attorney or a trust. And after a guardianship is established, there are ongoing reports and accountings to the court. For these and other reasons, guardianships are generally regarded as the default mechanism for managing someone’s life and assets that is used only when no other alternative is available. |
