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In an initial consultation, we will learn the information needed to complete a comprehensive plan. Our firm will help you put together a basic package that typically includes a Last Will and Testament, Statutory Durable Power of Attorney, Medical Powers of Attorney, and Advanced Physician Directives.

If needed, we will add directives and vehicles to cover your needs such as trusts, guardianships and powers of attorney for children. We put together the necessary documents and ensure your plan is complete. Once we have resolved your estate planning needs, our team will assist you in formally finalizing your plan in compliance with State law.

Why You Need to Have a Will.

A will is a foundational part of every individual’s estate plan, regardless of the size or nature of the estate. This estate plan basic can dictate how your estate, assets and legacy will be divided among your loved ones or charitable foundations. The rest of your estate plan can then be built around your will.

It is important to avoid generic will templates, as they will not always meet your needs and often result in mistakes that prevent your wishes from being met. At Soyars & Morgan we take the time to work with each client in order to understand your specific needs and how to meet those needs in an efficient and affordable way.

When is a Trust Necessary?

A trust is basically a vehicle that holds assets with rules that govern how and when a beneficiary receives them. For instance, a trust may be set up for minor children who are unable to handle their own finances. A special needs (supplemental needs trust) ensures that a loved one is not cut off from government benefits, such as Social Security Income, Social Security Disability, Medicare and Medicaid.  To qualify for these benefits a single person must own less than $2000 of countable assets.  This is why it is generally a bad idea to give assets or a gift directly to a loved one who is disabled and receiving government assistance.

Trusts may even be used to avoid probate. Why would you want to avoid probate? Some people don’t want the Courts to oversee how their assets are disposed of. In addition, a Trust can have special tax benefits.

Three Documents More Important than a Will.

While a Will is an important document to have, a will only goes into effect once you die.  It does not have any power while you are still alive.  It is very important to have effective documents which control your assets and dictate your medical wishes while you are alive but unable to make these important decisions. At Soyars & Morgan Law, we believe that there are three documents, in addition to your Will, that vital for every person to have; Statutory Durable Power of Attorney, Medical Power Attorney and a Declaration of Guardianship.  Planning for your death is smart, but planning for you while you’re still alive is even smarter.

Powers of Attorney

A Statutory Durable Power of Attorney form allows the person creating it to designate a person to act on his or her behalf on a wide range of financial and legal issues.  When executing a power of attorney, the individual doing so may decide to strictly limit the powers given to the named power of attorney (POA), or the power can be broad and wide reaching.  Naming a POA can make one’s life easier when on is unavailable to get to the bank, or out of town and dealing with something that has happened their house or car.  It can also alleviate the need for court intervention upon incapacitation of the individual.

Medical Power of Attorney

A Medical Power of Attorney is specifically concerned with medical decisions.  This document may also be called a designation of a health care agent.  The person designated as one’s power of attorney can also serve as the medical power of attorney, but this does not have to be the same person. While a statutory durable power of attorney may become effective immediately, a medical power of attorney will only become effective upon incapacity of the individual.

It is common to also file a Directive to Physicians, articulating specific wishes should an individual become terminal or diagnosed with an irreversible condition, but having both a medical power of attorney and directive to physicians is not necessary.  If you have both, the person designated as the medical power of attorney will be called upon to made decisions for matters not covered in the Directive to Physicians.

Declaration of Guardianship

The Declaration of Guardianship is a document designed to help head off the conflicts over guardianship.  Guardianship refers to the area of law that covers those who are taking care of others who are unable to care for themselves.  An individual who has been deemed by the Court as an incapacitated person is called a Ward. A guardian is someone who is appointed by the Court to be legally responsible for caring for a Ward.

When an adult is determined to be incapacitated, whether as a result of dementia, Alzheimer’s, brain injury or some other means, they have been deemed to be unable to make any decisions or choices regarding their care and finances.  When such a determination is made the Court will name a guardian to undertake the Ward’s care.

Before an individual can be deemed incapacitated the Court has to determine to its satisfaction that the individual is in fact incapable of taking care of themselves.  This evaluation involves medical assessments which can be determined by a licensed medical physician or psychiatrist, but the exam must have occurred within the last four months.  If the Ward’s incapacity is questioned in a case, a court-appointed medical physician may be brought into the case to make a separate assessment to corroborate or challenge the initial assessment. In addition to the medical exam, the applicant must show that they have looked into supports and services for the proposed Ward and that those available are not enough without the court granting a guardianship.

There are two types of guardianships: temporary and permanent.   A temporary guardianship is used to protect a proposed Ward from exploitation, abuse or some other situation needing immediate attention.  A permanent guardianship is initiated when there are ongoing concerns about the ability for the proposed Ward to care for themselves.

In a guardianship hearing, the proposed Ward will be assigned a State Bar of Texas certified attorney ad litem, who will represent his or her legal concerns. The purpose of the attorney ad litem is to advocate for the best interest of the proposed Ward.

A prospective guardian, called the Applicant, should have a lawyer to help through the process—especially if there is more than on Applicant seeking to become the guardian.  While the appointed guardian will usually oversee both the personal care and the estate, the Court may choose to have those dual functions split between two people, with one overseeing the estate and the other overseeing the health and welfare of the Ward.

A Declaration of Guardianship helps to resolve potential conflict regarding who should care for you should you become incapacitated. In filing this document, you designate the person whom you wish to serve as your guardian should you become incapacitated and you either do not have the powers of attorney already assigned and/or because someone has obtained an improper power of attorney.  Prior to incapacitation, you may designate in a declaration who you wish to make decisions on your behalf regarding your person or estate.  The declaration will be presented to the Judge as an exhibit during the guardianship hearing.  In addition to stating you want to be assigned as guardian, you may also indicate persons who shall be prohibited from obtaining such power over you in the event of incapacitation.