Pandemic Legal Planning - Update 1
The attorneys at Duarte and Molina, P.C. recently shared the importance of having a will, a power of attorney, a medical power of attorney and a directive to physicians in light of the COVID-19 pandemic. The information shared resulted in comments and questions listed below. Hopefully, this information will clarify some issues.
1. “I don’t need a will. The State of Texas leaves everything to your closest relatives.”
In every state, including Texas, there are laws of intestacy. These probate statutes outline how someone’s property is divided when a deceased individual has no will. But there are so many problems with letting someone else decide how your property is divided.
First, who are your closest relatives? Hearings are needed where a judge decides who your heirs are. That means someone hires a lawyer. Then the lawyer works to find “disinterested witnesses” to identify the deceased’s heirs. The witnesses are interviewed and evidence is secured: tax returns, birth certificates, contracts, photographs, letters, etc. Then an application to determine heirship is filed and a hearing is scheduled. In that process, the judge will appoint an independent person (an attorney ad litem) to see if there are any unknown heirs which were not disclosed by the party who filed the application. Do heirs exist from a previous relationship? Once that investigation is completed, a hearing is scheduled. At the hearing, witnesses testify and the judge determines who the heirs are. That is a very expensive situation.
Second, once heirs are declared, the deceased’s property is administered by an “administrator,” divided and an accounting is provided to the court. The administrator must be approved by the court and a bond is posted. The administrator is paid a fee for the services rendered and compensated for all expenses incurred. These processes are expensive.
Third, what happens to the real estate or other property when one of the heirs is a minor? Minors cannot sell real estate! A guardian is appointed in an entirely different process. This procedure is very expensive.
While it is true your assets will be distributed when you die, do you really want your estate spending thousands of dollars on lawyers, investigators, accountants, court costs and bonds? A will can simply say you want your property given to specific people and with no court intervention other than filing the will for probate. The “executor” you appoint does not post a bond, does not get paid a statutory fee and distributes assets without anyone’s supervision.
This process is far cheaper than letting your estate become consumed by unnecessary costs. And keep in mind, sometimes heirs don’t want to spend thousands of dollars for an estate that is burdened with liens or costs. By analogy, who wants to spend $3,500.00 fixing a $1,500.00 car? In the probate arena, passing away without a will sometimes means the bank or sheriff forecloses on your house, repossesses your car and your personal property is thrown in the trash.
It also means your bank account solely in your name will eventually revert to the state because nobody wanted to spend $1,500.00 to get the $1,400.00 in your checking account.
2. “My kids can decide my medical issues. Plus, I have a power of attorney already. I don’t need to spend money on a directive to physicians or a medical power of attorney.”
It is again true that you are not required to spend money on anything. But is that financially a smart decision?
First, talk to your doctor. Ask your physician how many times he has faced a family that presented three different opinions:
“Dad would want the aggressive surgery.”
“No. Dad would want conservative medical treatment.”
“No. Dad told me he would want us to pull the plug right now because he would not want all of his money to go to paying needless medical bills.”
First, putting someone in charge to make medical decisions for you makes so much sense. The cost is reasonable and your children are not forced into an argument that may cause them irreparable hurt and pain.
Second, if you have a Texas’ statutory durable power of attorney in place, the power of attorney DOES NOT permit your “attorney in fact” to make medical decisions. A separate document must be executed. Again, you prevent problems for your family while you are under a doctor’s care. Just today, new COVID-19 treatments were announced. One treatment involved plasma from recovered patients. Another treatment involved removing blood from a patient and oxygenating the blood and reinfusing the blood into the patient. These treatments and those still being developed are experimental, not FDA approved and require consent. Why put your family under more stress during a medical crisis when a simple form could lead to organized solutions?
Third, the power of attorney is not the equivalent of a Do Not Resuscitate Order or a Directive to Physicians. If keeping you on a ventilator is only postponing the moment of your death, if you are brain dead, if keeping you on life support is painful, how do you want those situations handled? Some say “miracles happen every day and you fight for me until my body stops.” Others want to be kept comfortable on medications without emergency medical intervention. The only correct answer to the question is your answer and that can be included in a relatively inexpensive document that will be respected by your healthcare professionals and your family. Why leave that question to family members who may disagree? Why force your family members to live with their painful decision when you can let two doctors reach a unanimous decision or you dictate that no heroic measures are to be taken?
The pandemic continues and families are facing medical, personal and financial problems every day. Witnessing the situation personally or via new reports should focus us on what is important - - our families, our health and our financial security. Preparing a proper will, power of attorney, medical power of attorney and directive to physicians can help you protect your family in each area.