12 November 2004

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 November 12, 2004
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Category: Press Room

Shelly B. West, Dallas Attorney, authored on article for the Dallas Bar Association on the topic of Elder Law.

Basic Texas Elder Law

The purpose of this article is to discuss documents every person should have to manage their own personal affairs. These documents or advance directives are the Directive to Physician, Medical Power of Attorney, Out of Hospital Do Not Resuscitate Order, Statutory Durable Power of Attorney, and Declaration Of Guardian In The Event of Later Incapacity Or Need Of Guardian.

These documents are all contemplated by statute in Texas. They are all also revocable according to the wishes of the person signing them. Further, they should all be considered necessary in addition to writing a valid will.

Directive to Physicians

This document is commonly referred to as a “Living Will”. The purpose of this document is to allow the individual to provide specific instructions concerning their personal beliefs with regard to withholding or withdrawing life sustaining treatment in the event of a terminal or irreversible condition.

If Terri Schiavo had signed such a document we would not know her name. The statutes do not require word for word drafting of the form set forth in the Texas Health and Safety Code.

In fact the form leaves blanks for additional directions concerning the person’s interest in feeding tubes, refusing respirators and the like. The Directive to Physicians need not be notarized.

For example, you may dictate your request that pain medication and hydration continue, but that a feeling tube may be removed.

Medical Power of Attorney

This advance directive exists for the purpose of our your ability to name an “agent to make any healthcare decisions on your behalf that you could make if you were competent”.

So, if you are unconscious as a result of a car accident, the person you have designated will help the doctor make medical decisions for you. In contrast to the Directive to Physicians, the Medical Power of Attorney must be drafted “substantially” in the form as set forth in the statutes.

It is important to note that a disclosure statement is required to insure the effectiveness of the Medical Power of Attorney, and it must also be signed by the person wishing to appoint another to make decisions in the event of his or her incapacity.

In a city as large as Dallas, it is most important for us to possess this document. It is ludicrous to expect that a trip to an emergency room, even with a spouse, would not involve complications for medical decisions. In other words, this is not a small town where the doctor knows who is married to whom and who belongs to which family.

Consequently, we are placed in a position in which this Medical Power of Attorney can be crucial to assist a physician with the medical care of a loved one. Additionally there are limitations on the power of the agent as a protection for the principal. Under this power of attorney, your agent cannot put you in any facility for inpatient mental health services, convulsive treatments, psychosurgery, or abortion.

Out of Hospital Do Not Resuscitate Order

Your emotions can be very distracting, so attempt to maintain your objectivity. Although this can be difficult, objectivity will facilitate a smoother transition throughout the divorce process. There will be many issues to be dealt with such as custody of the children, visitation schedules, and property division. Most people find these situations to be very stressful and react with emotion. Look to your lawyer to help you maintain your objectivity.

If you have children, they will feel the stress more than You.

This document is frequently referred to as a “DNR”. As the other documents discussed thus far in this article, the DNR is legally binding as set forth according to the standard form specified by law.

Generally, hospitals provide these for the convenience of their patients who wish to specify that out of the hospital, cardiopulmonary resuscitation or certain other life sustaining treatments may be withheld.

In fact you may choose to wear a DNR identification device around the neck or on the wrist when a valid out of hospital DNR is in place.

These documents are generally utilized in the case of terminal illness or infirmity as a result of age a person who wishes to refuse certain medical treatment.

Durable Statutory Power of Attorney

This document allows you to designate a third party individual as your “attorney in fact” or agent to handle a your property and financial matters.10

The agent appointed has a duty to keep you informed, account to you, and stand as a fiduciary with regard to you.

Bluntly, the agent must treat you better than himself. Although the statutes say that the form set forth in Section 490 of the Probate Code is not exclusive, banks and financial institutions are familiar with this form and are more likely to comply with your requests if the statutory form is used.

The Durable Power of Attorney may be drafted to accommodate an immediate effective date or drafted to be effective upon your disability or incapacity.

The logic behind possessing this document demands that the agent named be a trustworthy individual. Generally as a convenience, the powers should be made effective immediately and not affected by the subsequent disability or incapacity of the principal.

The other alternative, drafting the power of attorney to become effective upon your disability or incapacity, sets up another hurdle for the your family to scale before property and financial matters may be addressed. Additionally, most of us are loathe to require a doctor to certify in writing that we are mentally incapable of managing financial affairs.

In fact, in almost every circumstance, we do not want an incapacity assessment in writing.

Declaration Of Guardian In The Event of Later Incapacity Or Need Of Guardian

The previous documents listed, if appropriately drafted and notice is provided to our financial and medical advisors, should prevent the need for a guardianship. However, if all agents have died before you, the document is lost or destroyed or it just hasn’t been signed, a guardianship may become necessary.

Guardianships are onerous, expensive and guardianships of the estate require annual accounting to the probate court. Thus the obvious need for the documents discussed in this article. Failing all of that planning, the utility of this Declaration is your ability to specify an individual to be named as the guardian of your person, and you may specify a separate individual to be the guardian of your estate, should that become necessary.

You may also specifically disqualify someone with this declaration. For example, you have a greedy sibling you wish to prevent from becoming your guardian. You may accomplish that goal with this document. If you name a spouse to serve as a guardian in this sort of document and later divorce that spouse, if a guardianship becomes necessary, the now divorced spouse designation has no effect.

Conclusion

In our efforts to prepare ourselves and our families for the inevitable, these documents provide preplanning while we are in good health and spirits. This planning answers questions to provide peace of mind to the family in case of disaster or when the passage of time brings old age and infirmity. These documents should be part of any responsible approach to business and personal planning. Plus, while having these documents in place is smart, it is also a respectful and loving thing to do for your family relationships.

Shelly B. West
The Law Offices of Shelly B. West
One Meadows Building
5005 Greenville Ave, Suite 200
Dallas, TX 75206
Tel: 214-373-9292
Fax: 214-363-9979
Email: info@edallasattorney.com

1) Texas Health & Safety Code, Ann. § 166.031(1). (Vernon 2003)

2) Texas Health & Safety Code, Ann. § 166.033 and Texas Health & Safety Code, Ann. § 166.031(1). (Vernon 2003)

3) Texas Health & Safety Code, Ann. § 166.033.

4) Texas Health & Safety Code, Ann. § at § 166.152.

5) Texas Health & Safety Code, Ann. § at § 166.163.

6) Texas Health & Safety Code, Ann. § at § 166.163.

7) Texas Health & Safety Code, Ann. § at § 166.083.

8) Texas Health & Safety Code, Ann. § at § 166.083.

9) Texas Health & Safety Code, Ann. § at § 166.090.

10) Texas Probate Code Chapter 12, § 490. (Vernon 2003)

11) Texas Probate Code Chapter 12, at § 489B.

12) Texas Probate Code Chapter 12, at 490.

13) Texas Probate Code Chapter 12 at 490.

14) Texas Probate Code Chapter 12, at § 679.

15) Texas Probate Code Chapter 12, at § 679(h).

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