Estate Planning During Uncertain Times

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Is there a Right Time to Estate Plan?

Absolutely. When it comes to estate planning, there is no time like the present. Illness, death, and taxes are some of the few certainties about life and are also good reasons to think about estate planning. The problem is that there is usually no known timeline for these events. Thus, if you intend on planning for these events, it’s best not to wait.

Nobody sees an untimely death coming, but we are now living during unusual circumstances. COVID-19, a novel illness, with no vaccine and no known cure, is forcing all of us to face our mortality. Although the disease, like many other flu-like illnesses, is most lethal in our elderly and immune-compromised populations, it is also inexplicably striking down young, and seemingly, healthy individuals.

How to Make Life Planning Decisions

With the knowledge of an indiscriminate virus on the loose, why wouldn’t you choose to estate plan? To make important life decisions? Yet, what I am hearing repeatedly from colleagues, friends, news, and Internet chatter is that people are struggling with making good life decisions. I call it “analysis paralysis” or “reactive” living, and it’s an unstable state of being.

If you are having difficulty making life decisions, the best way to start is to seek out good counsel. This can be friends and family, but when dealing with any financial or legal decision, it’s best to consult the professionals. As an estate planning attorney and legal counselor, I am called upon regularly to assist with making important life decisions. Not only do estate planning attorneys have knowledge about probate and estate administration laws, but many of them, like myself, have knowledge of the negative consequences of inaction. This information can be very instructive in decision-making and life planning.

As for when to make important life decisions, the time is now. And not just because a novel coronavirus is threatening our way of life, but because planning and making well-counseled decisions leads to a more positive life experience. When we are proactive in life, we can generally handle a financial or emotional setback.

So, go, make that important life decision–whether it’s getting back to something you enjoyed about life (albeit in a socially responsible manner), or to start creating a stable future.

If you would like to receive counsel and advice on life planning and estate planning during COVID-19 here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me to discuss further. In addition to in-person consultations, I am also available by teleconference and videoconference. 

 

What is a Living Will?

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And what you need to know about a Living Will during the COVID-19 pandemic.

When you are admitted to the hospital for treatment, you will be asked if you have any estate planning documents like a “Living Will”. In Texas, we call this document a “Directive to Physicians and Family or Surrogates” (or “Advance Medical Directive”, for short). But what is this estate planning document really about for our clients based in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area?

A “Living Will”, or Advance Medical Directive, is your legal way of telling your family and doctors whether you want “life-sustaining treatment” if you become gravely ill. A “life-sustaining treatment” is exactly how it sounds–a medical treatment that keeps you alive no matter your underlying diagnosis. In Texas, a “life-sustaining treatment” could include food and water administered through a tube in your vein, or through your gastrointestinal tract. It could also include “mechanical breathing machines”, or “ventilator”, as the term is more frequently used in the news lately.

Living Will, Ventilators, and COVID-19.

The American Thoracic Society has explained that “[a ventilator] helps support a person until other treatments become effective, or the person gets better on their own.” However, in the case of COVID-19, there is currently no known cure or vaccine. There is also a lot of speculation about how this novel illness should be treated. Yet, there is ongoing public and private planning surrounding ventilator use and the availability of ventilators during the COVID-19 pandemic. Therefore, not only should you be discussing the risks and benefits of ventilator use with your medical providers, you should also communicate with your loved ones about your wishes for end-of-life-care and estate plan.

With so much unknown about COVID-19 right now, having these discussions is at least one way to provide some certainty during life.  A Living Will allows you to state in advance, not only whether you approve the use of a ventilator when your life is threatened by COVID-19, but also place conditions on its use.

If you have further questions about a Living Will or Advance Medical Directive here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me, a local estate planning attorney, to discuss further.

For questions about the risks and benefits of utilizing life-sustaining treatments such as a ventilator, please speak with your treating medical provider.

Mental Health and Guardianship: How to Get Help

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I frequently receive phone calls from friends or family members of an individual suffering from a mental health crisis. Their question is the same, “Can I get a guardianship over them and force them to take their medications, or get psychiatric care?”  Or sometimes the question is whether they can get a trust or some other legal document to prevent the person from spending their money irresponsibly or giving it away. 

Although my heart goes out to these families, it pains me to tell them that guardianship is not a likely remedy and here is WHY:

Due to major changes in Texas guardianship law over the last five (5) years, it has become increasingly difficult to obtain guardianship over a disabled person. Statutory probate courts, which have the responsibility of overseeing these cases, are closely scrutinizing applications and applicants for guardianship. As a result, not only has obtaining a guardianship become challenging, but more costly.  

Applicants for guardianship (friends or family members of the individual) are required, by law, to consider feasible alternatives to guardianship and supports and services before they file for guardianship. For people suffering through a mental health crisis such as suicidal depression, a manic episode of bipolar disorder, psychosis, or a severe drug or alcohol addiction, there is at least one important alternative to guardianship that statutory probate courts also oversee: a mental health commitment. 

The process for an involuntary commitment to a psychiatric hospital can be found in Chapter 574 of the Texas Health Code. This process allows family members to alert the police and the court to situations where a person may need immediate psychiatric care if they are “likely to cause serious harm” to themselves or others. The policy behind this process is that with time and the right treatment, these individuals are usually able to return to a stable mindset. As such, guardianship is viewed as unnecessary under these circumstances and even an infringement of the individual’s constitutional freedoms. Additionally, courts encourage the use of power of attorney forms and supported decision-making to assist individuals dealing with short-term declines in mental health or borderline cognitive functioning, as a feasible alternative to guardianship.  

Guardianship, therefore, should be thought of as a long-term solution to severe mental decline. Generally, a probate court will approve a guardianship application when the individual is completely unable to care for themselves and/or their property and finances on a permanent basis. Medical conditions that tend to result in this finding include severe intellectual or developmental disabilities, traumatic brain injury, post-stroke dementia, and Alzheimer’s dementia. 

Attorney Adriane S. Grace regularly consults with families on guardianship, alternatives to guardianship, and supports and services including public benefits, and helps them navigate and implement these options to avoid costly guardianship proceedings where possible. She also assists families, when guardianship is necessary, to navigate the legal process in uncontested proceedings, and to defend the application, or applicants, in contested proceedings involving complex family dynamics. Contact Attorney Adriane S. Grace if you have questions about whether guardianship is available to you in Frisco, Prosper, Plano, McKinney, Dallas, & Allen Texas area.  

Attorney Adriane Grace Published in Texas State Bar Journal

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Attorney Adriane S. Grace’s article, “What the Estate Planning Attorney Needs to Know About Social Security Fee Authorization and the New Executive Orders“, was published in the latest issue of The REPTL Reporter (Volume 58, Issue 2 May 2020). The REPTL Reporter (REPTL) is the official journal of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

In addition to her wills, trusts, guardianship, and probate law practice, Ms. Grace is a Social Security appeals attorney. She regularly encounters overlaps in these practice areas and offers legal advice and assistance navigating the intersection of state and federal laws. For questions, contact Attorney Adriane S. Grace.