Less Considered Ancillary Documents

Less Considered Ancillary Documents
Taylor – updated

Emily Taylor

Senior Associate

Many people reach out to an estate planning attorney for a will. Sometimes, they come in a health crisis for medical directives. However, the estate planning attorney can serve clients well and stand out as a more complete planner by addressing not only these commonplace estate planning documents but also some of the documents that may be applicable to the circumstances of the clients. This means clients need a lawyer who is getting to know them, building a relationship with them, and is really doing planning focused on the client – not just on the lawyer’s checklist. The following are some of the lesser-discussed ancillary estate planning documents for the client to consider.

Declaration of Guardian in Case of Future Need

A Declaration of Guardian in Case of Future Need is a document that can be completed for the client designating who would be their guardian in the event one is needed. A guardianship is needed when healthcare decisions need to be made or assets need to be reached or managed for an individual who does not have the capacity to do that for themselves. Sometimes, an individual may have appropriate planning for this situation, such as medical powers of attorney or financial powers of attorney, but the documents are lost, the family is fighting, or the documents are being challenged. In those cases, the appropriate parties may bring an application for guardianship to the court. When a guardian is named in this process, the law provides a list of people prioritized who may be the guardian. The first person on the list to be appointed guardian is whoever the incapacitated individual named first on their Declaration of Guardian document.

Additionally, this document can be prepared for the client designating the guardian of their minor child or adult child with a disability. In this scenario, the last surviving parent of a child who is either a minor or an adult child with a disability may declare who they want to be the guardian of their child and in what order they prefer those individuals to serve.

In both cases, there are qualifications to consider for someone whom the client is naming as guardian and those should be considered when the client is choosing the desired potential guardian. Further, sometimes most important to the client is the opportunity to veto someone from serving as guardian. For example, let’s say the client has a minor child and the client is also estranged from their own mother. If the client was deceased and did not have a Declaration of Guardian in place, the nearest ascendant of the child would be first in line to be the child’s guardian. In this example, that would be the client’s mother, the client’s father, and the child’s other grandparents. They would all have an equal right to be the guardian. If the client wanted to take their mother out of the race, they could veto their mother from ever being a guardian in this document. This is the same scenario to consider for estranged spouses, siblings with substance abuse problems, and the many other circumstances that come up in family relationships.

Disposition of Remains

As many statutes in the Texas Health and Safety Code do, the statute governing the disposition of remains has an order of priority for who can make decisions surrounding a person’s remains after their death. This is an important topic for some clients who have very specific wishes regarding their remains. Sometimes those wishes are because of a religious belief, sometimes because of an environmental worry or emotional concern. Whatever the case, it is important to discuss this document with the client. Preparing this document outside of the will allows a client to change it more readily as the execution of this document is less burdensome than the execution of a will. Further, this document should be presented within ten days of death. Often, a will is not located within ten days of death. This document seems to be most valuable to individuals who either have strong wishes about their remains or strong concerns about what their loved ones may want to do with their remains. Take, for example, the 60-year-old man who passes away. His wife of 40 years knows he has specific wishes about cremation and specific wishes about the distribution of those ashes. His mother who survived him, however, has strong feelings about the tradition in which she raised her son and the ceremony in which his body should be laid to rest. The client can free the family from (at least some of) this discourse by putting on paper what his wishes are and assigning a person (who must agree to finance the wishes if the decedent’s estate cannot bear it) to carry them out.

Medical Power of Attorney for Mental Health

When decisions need to be made regarding voluntary mental health services, convulsive treatment, or psychosurgery, an agent under a typical Medical Power of Attorney (MPOA) has no authority. This is usually a shock to the agent who finds themselves trying to help their loved one with an MPOA in the middle of a mental health episode. Sometimes also called a Psychiatric Advance Directive, a Medical Power of Attorney for Mental Health is a Declaration authorized by the law that allows the client to make predetermined decisions about psychoactive medications, convulsive treatment, and identify their preference for emergency treatment (such as restraints or medication). If the client has a history of mental health concerns, this document can be of significant value to their loved ones in the event of a mental health event. Bringing this document to the client’s attention is useful because sometimes it may not be the client with a mental health issue, but a loved one they take care of. This can bring an additional client to the lawyer and provide profound relief to the family in the event it is necessary.

Anatomical Gifting

For some clients, the giving of their bodies is an important topic. Outside of the Texas Driver’s License designation, anatomical gifting can be done easily online at www.donatelifetexas.org. If the client has more particular wishes such as donating for a particular purpose, manner, or beneficiary, there is a document that can be prepared for the client that may be used and is often attached to or included with the MPOA. This decision at the Donatelifetexas website and document mentioned overrides the MPOA agent’s authority. The agent under MPOA cannot revoke or amend the decision to make an anatomical gift. It is also helpful for clients to think about what would happen to the donation if a specific beneficiary cannot utilize the gift, the presumption is it goes out for public use. Having these discussions in conjunction with the clients’ wishes for the disposition of their remains provides more comprehensive planning.

Though clients may approach an attorney to review their wills, execute medical directives, or prepare financial powers of attorney, it is the lawyer’s responsibility to teach the client what they do not already know – especially when it applies to their family or circumstances.

ABOUT THE AUTHOR: Emily Taylor is a Senior Associate at Rapp & Krock, PC in the Estate Planning group.

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