As with all other planning-related topics, the subject of disability-planning involves many bodies of law. As used here, the term “disability” refers to the law’s presumption of incompetence of a minor and to any lack of capacity imposed by physical or mental condition. Any time someone cannot address their own best interests someone else must do it for them – that’s why planning for disabilities is so important to us.
Appointing guardians before need arises:
There are good reasons for selecting who should be appointed as guardian of children and of ourselves in the event of our incapacity. Texas Probate Code sections 676 and forward prescribe the permissions and technical requirements that must be met. Those statutes can be viewed through this link.
Appointing persons to make decisions:
It is almost universally true that all of us should provide authority to another to act in our place and stead when we cannot do that for ourselves. Failure to provide that authority can, for example, lead to serious gaps in the ability to attend to our needs. For example, a woman’s niece calls the ambulance when the aunt is found unconscious on the floor. At the hospital nobody would discuss the situation or follow any of the niece’s pleas to know what was going on because she had no authority from the aunt to do so. As a result, it became necessary to hire an attorney to establish an emergency guardianship with all of the attendant burdens and obligations imposed concerning reports to be filed in the public records with the court. These are the fundamental documents that will go a very long way toward enabling someone else to have enough power to get the most critical tasks done:
- Powers of Attorney – special, general, temporary, durable, medical (not the same as a Directive to Physicians). See “Powers of Attorney.“
- HIPAA authorization – without it the providers of medical services may not even be lawfully able to talk to anyone else.
- Directive to Physicians will provide instructions about whether we are to be maintained on life-support or whether we prefer to be allowed to pass in various situations. Unless we so direct in advance the complications imposed on other persons can cause confusion and guilt.
TRUSTS play a critical role in disability planning. They can be planned, constructed and implemented to attend to a person’s needs without necessity of establishing a guardianship. There is amazing flexibility from using trusts as a planning vehicle – they can be tailored with as much flexibility as any contract. They are perfect vehicles for assuring that assets are managed to provide for the health, education and welfare of any person regardless of their capacity to act for themselves; but they are especially powerful tools for attending to persons suffering under any form of disability. Using trusts to empower somebody to manage and apply assets to cover costs in conjunction with the kinds of documents listed above as the “fundamental package” closes gaps. A harmonious fusion of these implementing documents helps establish a coherent plan to eliminate the serious problems of powerlessness. Trusts also insulate against making full and detailed disclosure of assets, location, and values in public records. See Trusts: Avoid Public Disclosure of Assets.
Got questions? You can Ask Me.