Planning for Your Disability to Protect Your Legacy

By Margaret Menicucci, Attorney & Counselor

The most distressing situation that a client can bring to us is when an elderly or ill person has been taken advantage of financially by a third party who purports to be a friend or caregiver. Typically, in such a case, the third party has convinced the vulnerable or incapacitated person to deed over property, give the third party access to financial accounts, change or replace a will, or all of the above. By taking control of healthcare decisions, that third party can isolate the vulnerable individual from friends and family in order to allow their strategies to go undetected until it is too late.

Each of us faces the potential to be incapacitated at some point due to age, injury, or illness. It is critical that while you are healthy and strong you have identified and authorized people you trust to manage your assets and your health care decisions if you become incapacitated. The primary tools for authorizing trusted future caretakers are the Financial Power of Attorney, the Medical Power of Attorney, the Declaration of Guardianship in Advance of Need, and certain parts of a revocable trust.

In Texas, the contents of the Financial Power of Attorney (also called the Statutory Durable Power of Attorney) and the Medical Power of Attorney are substantially set forth by statute. We provide additional guidance and counseling to clients to ensure that the forms are completed correctly and in a manner that fulfills the client’s goals. We recommend identifying successor agents who can serve if your primary agent is unavailable. Texas also has a form called Directive to Physicians and Surrogates, which enables you to describe the degree of medical intervention you would want if you are terminally ill or have an irreversible condition and no longer have the capacity to make decisions about your own care.

When clients choose a revocable trust as their primary estate planning tool, we include detailed instructions on how trust assets should be managed during the client’s disability and the designation of a successor trustee to do the work. Some institutions, like banks or financial services companies, are more responsive to a trust agreement showing a successor trustee than to a power of attorney.

If you are not married and become incapacitated and do not have powers of attorney or a revocable trust, then the appointment of a court-supervised guardian through a judicial process will be necessary to manage your assets and provide a decision-maker related to your health care needs. The document called Declaration of Guardian in Advance of Need enables you to name those persons you trust to be your guardian.

Comprehensive estate planning involves protecting your assets during your life as well as distributing your assets in the manner that you choose upon your death. At Braun & Gresham, we want to help you create a thorough disability plan as part of your estate plan to protect the integrity of your legacy and wishes. Please contact us at (512) 894-5426 if you are interested in setting up a consultation.

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