Houston Estate Planning and Elder Law Attorney Blog

Three Scenarios When You May Need a Power of Attorney

Published on: October 14, 2024 | By David W. Miller

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By definition, power of attorney is a legal document that gives one individual authorization to work on another individual’s behalf. This authorization can extend to financial decisions, medical decisions, or (if the document provides for it) all decisions pertaining to a person’s wellbeing. On today’s blog, we review three situations in which you may need a power of attorney, as well as why it is important to include in any basic will or estate plan.

Scenario #1: You Become Incapacitated and Need to Make Medical Decisions

If you become physically incapacitated and you are unable to make decisions on your own behalf, someone else will have to step in for you. Without a power of attorney, any person (including a spouse) would have to go through a court to gain explicit permission to make decisions for you. By executing a power of attorney, though, you can name who you would like to decide things about your health such as whether doctors should resuscitate you, what kind of medicine you want to receive, and how long you would want to exist in a vegetative state. While these situations are often unpleasant to think about, it is important to plan ahead of time for their possible occurrence.

Importantly, this kind of power of attorney only kicks in when you are truly incapacitated, i.e. you are unable to make any decisions at all. It does not apply when all that is happening is that the people in your life disagree with the decisions you are making.

A Primer on Long-Term Care for 2024/2025

Published on: October 7, 2024 | By Thomas W. McCulloch

As time goes on, long-term care gets more and more costly for Americans. Unfortunately, it is all too common that we have clients come to us, worried about how they will pay for the long-term care facility they might eventually need. Today, we review the basics of what you need to know in this day and age about planning for long term care. As always, with more specific questions, speak with a Houston estate planning attorney that can help you figure out the best path forward for you.

Start Your Planning Early!

We cannot emphasize this point enough: plan early and often for your long-term care needs. If you are wondering: is now too early to start saving for my old age? The answer is, definitely not! With rising prices and an uncertain economy, it is more important than ever to begin thinking now (no matter how old you are) about how you might pay for your long-term care.

Think Through Ways to Fund Your Long-Term Care

The basic options are as follows for funding your long-term care: you can pay privately, electing to pay a nursing facility out of pocket. This is, of course, the most expensive option, but it also provides for maximum flexibility. Secondly, you can pay with some kind of long-term care insurance. This means that you need to get a policy in place early, which can be expensive and requires planning far in advance. Thirdly, can access Medicaid or other public benefits to pay for your long-term care. To access Medicaid, you need to position your assets in a way that allows you to qualify for this government funding – again, this can require careful planning and expert advice.

What is a Living Will, and When Might You Need One?

Published on: October 7, 2024 | By David W. Miller

It is important to familiarize yourself with different tools and strategies in the world of estate planning. Each person’s estate is different, and each person’s priorities are different when drafting their estate plan. One tool that many individuals often overlook is the living will. On today’s blog, we review the basics of the living will, as well as when you might need one and how you can go about beginning to attain one.

The Living Will

By definition, a living will is a legal document that lists your wishes with regards to medical treatment in the event of your incapacitation. If you become seriously ill, unconscious, or cognitively impaired, you will need a living will to instruct your loved ones on your medical preferences. The living will does not take effect when you are sick but still able to make decisions for yourself. It only applies when you are strictly incapacitated, and you are unable to decide what kind of care you want or need.

Some clauses that individuals typically include in a living will include: a provision about possible resuscitation, instructions regarding a ventilator or feeding tube, and the designation a healthcare proxy to make decisions in your best interest. Importantly, your living will should be as specific as possible so that there is no confusion on how you would want to move forward regarding your medical care. You should also make sure to update your living will every few years, in case there are any changes to your health or to your own individual goals.

The Importance of Beneficiary Designations

Published on: September 30, 2024 | By Thomas W. McCulloch

As you think through your estate plan, it is important to be thoughtful about your beneficiary designations, especially as they pertain to your life insurance policy, retirement plan, and financial accounts. What’s more, you should consider updating your beneficiary designations regularly, in order to make sure your estate plan reflects your current circumstances and wishes. On today’s blog, we cover some of the basics regarding beneficiary designations and how they relate to your estate plan.

What is a Beneficiary Designation?

In the legal world, a beneficiary designation is the act of naming an individual who will inherit any part of the designator’s estate. When the designator dies, that person’s assets then go to his or her named beneficiaries.

Why is Beneficiary Designation Important?

If you fail to name a beneficiary or beneficiaries in your estate plan, the state of Texas is left to divide your assets according to the laws of intestacy. These laws essentially dictate which members of the decedent’s family receive the estate. The order of intestacy does not always reflect the decedent’s wishes, and it makes it difficult for other family members and loved ones to contest the distribution of assets.

Texas Intestacy Laws: What You Need to Know

Published on: September 30, 2024 | By David W. Miller

In Texas, if a person dies without a will or estate plan, that person’s assets are distributed “intestate.” This means that the probate court distributes the person’s estate in accordance with Texas’s pre-set laws and order of inheritance. While we certainly do not recommend leaving things to chance and opting not to write a will or estate plan, it is worth reviewing the state’s intestacy laws to know what is at stake if you die without any kind of plan in place.

Possibility #1: Dying Intestate Without a Spouse

If a person dies with no will, and if that person did not have a spouse, his estate will go first to his children. In the absence of children, his estate will go to his parents; if only one parent is living, the estate will go to both the surviving parent and to the persons siblings. Without parents, the estate goes to the person’s siblings. And, finally, if the decedent has none of these relatives alive, the estate goes to the person’s grandparents.

Possibility #2: Dying Intestate with a Spouse

Dying without a will but with a living spouse is a bit different. If the decedent has children, one-third of the estate will go to the spouse, while two-thirds will go to the children. If there are no children, the spouse inherits the personal estate in its entirety.

Estate Planning Basics: Joint Tenancy with the Right of Survivorship

Published on: September 22, 2024 | By Thomas W. McCulloch

One effective tool for property owners that are thinking through their estate plans is joint tenancy with the right of survivorship. While this form of ownership might not be right for everyone, it can certainly be an efficient, effective way to both maintain property and avoid probate down the line. Today, our blog offers some basics around joint tenancy with the right of survivorship, with the goal of helping you become well-versed in the strategy as you begin to think through whether it might be a tool you implement for your own assets.

What is Joint Tenancy with the Right of Survivorship?

Joint tenancy with the right of survivorship means that multiple individuals own a piece of property at the same time (“joint tenancy”). It gives each person an equal share of the property they own. Importantly, if one owner dies, the other owner becomes the sole owner (“right of survivorship”). If there are more than two owners and one owner dies, the remaining owners then take an equal share of the property upon the first owner’s death.

What are Some of the Benefits of Joint Tenancy with the Right of Survivorship?

One major advantage of this structure of ownership is that when one owner dies, the property does not have to pass through probate. Instead, ownership is automatically transferred. This can save significant time and money. It also allows the living owner(s) to own the property without any delay; that is, they do not have to wait for the completion of any legal processes before taking ownership of the property, since the property is already in their possession.

What is a Living Will? Do I Need One?

Published on: September 15, 2024 | By David W. Miller

When drafting a will or other estate plan in Texas, it is easy to think about including provisions for the distribution of assets and debts. What many people don’t realize, however, is that it is also smart to draft a living will. By definition, a living will is a legal document that provides instructions for a person’s medical treatment if that person is unable to make medical decisions for him or herself. This inability could be due to illness or unconsciousness, and it often occurs when a person is under some kind of life support. Does it make sense to include a living will in your estate plan? Why or why not?

In short, we at McCulloch & Miller recommend that our clients draft a living will as soon as possible. The first reason it makes sense to draft a living will is simple: we never know when the unexpected will hit us. Even if you are a healthy person, life can change in an instant. While this is not a pleasant reality to think about, it is important to realize that no one is immune from severe and unexpected illness. If and when an illness does strike, you want to have a detailed plan in place.

Second, there are so many options for which medical decisions might arise during an emergency situation. For example: what are your preferences for pain management? Do you want to donate your organs? Do you want doctors to resuscitate you if they need to make an instantaneous decision? Because these decisions can be complicated, it is always better to have your preferences written down far in advance.

How to Pay for Long Term Care in 2024 and Beyond

Published on: September 15, 2024 | By David W. Miller

In Texas and in other states, long term care is expensive; nursing homes, private care, and health aides are costly, and as Americans age, they face the issue of figuring out how to unlock crucial medical services. In general, there are three main ways to pay for long term care, all of which we will review in today’s blog. The reality is that each person’s financial circumstances will be different, and each person will have a slightly different method that allows them to access important long term care resources.

Option 1: Pay Out of Pocket

First, you could pay out of pocket for long term care. This, of course, is difficult for most Americans. It also requires significant financial planning prior to old age. Paying out of pocket does allow for maximum flexibility in both how you access your services and in choosing the services you access. If you are financially able to choose this option, it is the best course of action to take.

Option 2: Use Long Term Care Insurance

Second, you could use long term care insurance to pay for your nursing home or care facility. The insurance company will subsidize your care, offering significant savings. Of course, this option requires that you opt into a specific kind of insurance. To access the insurance, you must 1) pay a significant cost and 2) plan to enroll in the insurance early on.

Important Power of Attorney FAQs

Published on: September 15, 2024 | By McCulloch & Miller, PLLC

Power of attorney is an important part of any estate plan that individuals tend to overlook. To cover some of the power of attorney basics, today’s blog focuses on the most frequently asked questions on the topic. With specific questions about how power of attorney applies to you or to learn more, we recommend that you contact a Houston estate planning attorney today.

What is Power of Attorney?

Power of attorney is a legal document that allows another person to act on your behalf. The document creates a relationship between the person appointed (the agent) and the person signing over the right to act in certain situations (the principal).

What Makes a Power of Attorney Legally Valid in Texas?

To create a power of attorney, there are several legal requirements. These include: signing the document in front of a notary public, being at least 18 years old, and having decision-making capacity when you sign the document. Without these requirements, the power of attorney may not be legally valid and may not hold up in court.

What is a Revocable Living Trust? Should You Have One?

Published on: September 7, 2024 | By Thomas W. McCulloch

The estate planning process in Texas offers a variety of tools for those looking to avoid probate. One such tool that we encounter often in our practice is the revocable living trust. On today’s blog, we cover the basics of the revocable living trust as well as a couple of signs that might indicate a revocable living trust might be right for you.

The Revocable Living Trust

A revocable living trust is a trust that you make 1) during your lifetime and is 2) revocable (meaning you can revoke, amend, or change it at any point during your lifetime). This trust is a vehicle you use to hold title to other assets. For example, your house or your brokerage account might be contained in a revocable living trust. This trust helps you control what happens to your assets when you pass, and it helps your loved ones avoid probate when administering your estate plan down the line.