Texas Incapacity Planning - The Specifics

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TEXAS INCAPACITY PLANNING PART 2 THE SPECIFICS JOHN R. VERMILLION “In our second discussion of incapacity planning in the state of Texas, we are going to take a closer look at some of the specific tools you will include in your incapacity plan”

Transcript of Texas Incapacity Planning - The Specifics

Page 1: Texas Incapacity Planning - The Specifics

TEXAS – INCAPACITY PLANNING PART 2 – THE SPECIFICS

JOHN R. VERMILLION

“In our second discussion of incapacity planning in the state of Texas, we are going to take a closer look at some of the

specific tools you will include in your incapacity plan”

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In our second the discussion of incapacity planning in the state of

Texas, we are going to take a closer look at some of the specific tools

you will include in your incapacity plan.

While your plan will be based on these tools, and those tools must

comply with specific legal requirements, it’s important to point out that

using these various devices in no way restricts the kinds of choices you

can make. You are still capable of making decisions about what you

want to happen to you should you become incapacitated.

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The key here is to realize that only by creating a specific type of

incapacity planning device can you be sure that your wishes will be

honored when you can no longer communicate or make decisions for

yourself. As always, if you ever have any question about the kind of tool

you create, or the reasons you are creating it, you should always raise

your concerns with your estate planning attorney before you sign any

documents.

STATUTORY DURABLE POWER OF ATTORNEY

People who become incapacitated don’t just suddenly stop having to

pay bills, manage their

property, or deal with the

other responsibilities that

need to be looked after. This

is why creating a statutory

durable power of attorney is

such an essential part of

creating a comprehensive

estate plan. (Note, a

statutory durable power of

attorney is also sometimes referred to as a financial power of attorney,

or a durable financial power of attorney.)

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Like all powers of attorney, the statutory durable power of attorney

gives you the ability to name one or more agents who will be able to

manage your responsibilities. If you want to create a power of attorney

that gives your agent decision-making authority immediately, you can

do so. However, the

statutory durable power

of attorney gives your

agent the ability to act

after you become

incapacitated. Non-

durable powers do not

grant this ability.

You will have to select an

agent when you create

your statutory durable power of attorney. This agent can be almost

anyone you like as long as that person is capable and willing to serve in

the position. You can also choose an organization, such as a bank or

trust company, to act as your agent under your statutory durable power

of attorney.

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ADVANCE DIRECTIVES

Advance directives, also known as medical directives or healthcare

directives, are documents through which you make specific decisions

about the kind of healthcare you might want to receive should you one

day become incapacitated. There are several different types of

advanced directives available to people in Texas.

Out of Hospital do not Resuscitate. This type of advance

medical directive must be signed in the presence and after

consultation with your doctor. It allows you to instruct

emergency medical personnel or other health care workers about

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your desire for them to not provide you with resuscitative

treatments, such as CPR. The Out of Hospital do not Resuscitate,

sometimes referred to as a DNR, allows you to choose to have a

natural death instead of receiving heroic life-saving, or life

extending, measures.

Medical Power of Attorney. Similar to a statutory durable

power of attorney, a medical power of attorney gives you the

ability to choose an agent who can make decisions on your behalf.

Under a medical power of attorney your agent can make medical

decisions for you after you become incapacitated. The agent can

communicate with your doctors and health care providers, review

your medical records, and will be able to make medical decisions

for you when you can no longer do so on your own.

Directive to Physicians and Family or Surrogates. More

commonly known as a living will, the Directive to Physicians and

Family or Surrogates is an advance directive that allows you to

communicate your medical wishes in as much detail as you like.

Should you become incapacitated, your healthcare providers must

refer to, and abide by, the decisions you express in your living will.

Further, if you choose to make a medical power of attorney, your

agent must also abide by the wishes you express in the document.

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Declaration for Mental Health Treatment. Similar to a

living will, a Declaration for Mental Health Treatmentis a

document that allows you to grant consent to various types of

healthcare treatments involved in the treatment of mental illness.

For example, through your Declaration for Mental Health

Treatmentyou might state your consent to receiving convulsive

therapy, psychoactive medication, or similar treatments. Should a

court find you incapacitated and unable to make treatment

decisions, your Declaration for Mental Health Treatmentwill

guide your health care providers as they treat you.

YOU NEED HELP CRAFTING A COMPREHENSIVE PLAN

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Regardless of what your individual choices are, or how you want to

approach the question of incapacity, developing an incapacity plan is

absolutely essential if you are an adult living in the state of Texas. The

legal reality is that if you don’t have an incapacity plan in place, the

medical choices that you have to make will not go away if you’re

incapacitated. Without a plan, you leave it up to others to make those

choices for you, but have no control over who those people are or what

choices they will make.

In other words, making an incapacity plan allows you to make choices

for yourself, while not making one means that others will make those

choices for you whether you like it or not.

If you’ve never spoken to an attorney about crafting an incapacity plan,

you should contact us as soon as possible. The attorneys and staff at the

Vermillion Law Firm have a lot of experience helping our clients create

incapacity plans that meet their individual needs. The plan you need is

one that will address all the questions and issues that might arise

should you become incapacitated, and one that will work seamlessly

with each of the different elements you create.

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About the Author John R. Vermillion

John R. Vermillion works as an estate planning and probate attorney and is licensed to practice in Texas, Louisiana, Oklahoma, and Tennessee. A native Texan, he graduated from Texas Christian University in 1974 receiving a Bachelor of Arts Degree in Political Science. In 1977, he received his Juris Doctor degree from the Louisiana State University Law School. Upon graduation from law school, Mr. Vermillion worked extensively as a corporate attorney in the fields of oil and gas exploration and production, real estate development, finance and estate planning. He served for many years as corporate counsel and Vice President of a private independent oil and gas company.

Mr. Vermillion is a member of the State Bar of Texas, the Dallas Bar Association, the Louisiana State Bar Association, the Oklahoma Bar Association, and the Tennessee Bar Association. He is a member of the American Academy of Estate Planning Attorneys and the National Academy of Elder Law Attorneys. Also active in his community, he currently serves as a director for the Charles Coody Classic Golf Tournament which benefits Catholic Charities of Fort Worth, Texas. A member of the French-American Chamber of Commerce, Louisiana Chapter, Mr. Vermillion pursues their goal of promoting and developing commercial and financial relations between France and the United States. In addition, he serves on the TCU Dallas Alumni Board and sponsors the Dallas area NAMI Walkathon (National Alliance for Mental Illness). Coming from a family of entrepreneurs, Mr. Vermillion has owned and operated his own businesses, including an historic inn. His experience has given him a hands-on understanding of the legal and practical issues facing his clients and their estate planning needs. The Vermillion Law Firm, LLC www.vermillionlawfirm.com 7616 LBJ Freeway #120 Dallas, TX 75251 Phone: (972) 386-4560 Toll Free: (888) 567-574