Why should you use a lawyer to prepare your will? I have heard this question many times over my 25-year practice.
It is true that there are many places that sell will preparation software for $99.99 or even less which certainly is less than the cost of consulting with an attorney to prepare your will. I have even seen free will forms online. So why use an attorney to prepare a will for you?
Do it yourself estate planning is fraught with risk. We have all heard the saying, “you get what you pay for”. That observation is certainly applicable to document preparation services. Every do-it-yourself document preparation services or forms I have ever seen, include extensive disclaimers drafted by, you guessed it, lawyers. Generally, they specify that they are not acting as your attorney, that the information they provide is not a substitute for the advice of an attorney, and that they cannot apply the law to the facts of your individual circumstances. Basically, what they are saying is we don’t guarantee anything that we provide to you and if it ends up being completely useless, oh well.
At Waterbury Law, P.C. we don’t simply fill in forms. We use our years of schooling and experience to analyze your unique circumstances, explain the ramifications of your choices, advise you on the best way to accomplish your goals and objectives, and tailor your documents to address your unique estate planning needs. Document preparation services and online forms cannot do that for you.
While the initial “savings” of creating your will with generic online forms seems appealing, the actual costs of an inadequate will are catastrophic.
Texas divorces share several common features, each however, is also distinctly unique. That’s why at Waterbury Law, P.C. we take the time to understand your divorce and what’s most important to you. Then, we discuss your options and develop the best strategy for your case.
Divorce is defined as, “the dissolution of a marriage by law.” Such a dry and clinical definition hardly describes the impact on lives, reallocation of assets, and reassignment of parenting roles that occurs when marriage ends.
Waterbury Law, P.C. understands there is much more to consider than is suggested by a cliché definition of divorce. We make use of many options including divorce trial advocacy, mediation, and collaborative divorce. This broad spectrum of skills combined with over 20 years’ experience allows Waterbury Law, P.C. to tailor our representation to each client’s unique situation.
For more than 20 years, clients have turned to Waterbury Law, P.C. to help them through what can be a difficult and stressful process. We are available to answer any questions you might have.
Durable Power of Attorney
Everyone should make legal plans to handle a possible future illness or incapacity. If you become incapacitated, you need someone you trust to pay your bills, handle your finances, file your taxes, and to carry on your financial business.
If you do not enact a legal plan in advance, the only alternative may be for a court to appoint a Guardian. This is slow and expensive and something over which you have no control due to your incapacity. A better course of action is to create a Durable Power of Attorney (DPOA) naming an “Agent” to handle your finances. The maker of a DPOA is called the “Principal”.
In House Bill 1974 the 2017 Texas legislature passed a significant update to the Durable Power of Attorney Act, effective as of September 1st.
The new law greatly enhances the utility of Durable Powers of Attorney. If your DPOA is more than a year old, consider updating it to comply with the new law. The benefits of the new law include:
- The signature of the Principal is now presumed to be legally genuine when properly notarized.
- A DPOA made in another state is now valid in Texas so long as it complied with the other state’s laws or with federal law regarding a Military Power of Attorney (which are often seen in San Antonio).
- A photocopy or computer scan of a DPOA now has the same legal effect as the original document. Under prior law, copies were often rejected in favor of the original or of a certified copy. The new law does allow the Principal to limit or eliminate the use of copies by saying so in the original DPOA. However, granting legal validity to copies makes using a DPOA much easier when the bank, broker or other financial institution is far from home.
- The Principal can choose which state’s law will control the interpretation of the words in the DPOA. If the issue is not addressed, then the law where the Principal resided or where the DPOA was signed will dominate. This may be useful for individuals who live part time in Texas (snowbirds) and want the law of their home state to apply.
- Coagents may be appointed by the Principal, who can act independently of each other unless the DPOA requires unanimity.
- The law now allows the Principal to select a person to appoint additional Successor Agents. For instance, if the Agent is your spouse and the Successor Agent is your daughter, you can give someone power to appoint another Successor Agent to act if your spouse and daughter both die, resign or become incapacitated.
- If allowed in the DPOA, the Agent may delegate authority to others. For instance, the Agent could hire a bank to help pay bills or could hire a property manager to handle rent property.
- If allowed in the DPOA, the Principal can allow the Agent to create a Living Trust, to make gifts, or to handle beneficiary designations. However, if those powers are not expressly granted in the DPOA the Agent does not have those powers.
- If the Principal makes a new DPOA, any earlier DPOA continues to be valid unless the new DPOA specifically revokes the earlier DPOA.
These are major changes, but the most impactful deals with acceptance of and reliance on a DPOA. In the past, financial institutions could indiscriminately refuse to accept a DPOA. Under the new law, a new set of procedures has been enacted to help assure that your DPOA can be used when the need arises.
It is important you have a Durable Power of Attorney when the need arises. Contact Waterbury Law, P.C. today so that we can help you with this important document.
A living will is not a written will nor is it a living trust. According to Texas law a living will, when made by a competent adult, is a directive to physicians and to family members specifying an individual’s decision regarding continuation of life in the event of a terminal or incurable condition. When the only means of maintaining life is through artificial support, a living will instructs the physician to withhold or withdraw artificial life allowing the patient to die naturally. Living wills only take effect after the physician determines that death is expected without application of artificial life-sustaining procedures.
The Directive to Physicians identifies the medical procedures you do or do not want to receive during your final illness. This document can provide your doctor with instructions on whether you want to receive life-sustaining treatment if you have a terminal condition or are in a persistent vegetative state, and the level of care you wish to receive. For example, you can decline artificial nutrition or hydration, or you can request that only pain-reducing medication be provided to you. A “terminal condition” is defined in the Texas Health and Safety Code as an incurable condition caused by injury, disease or illness that will result in death within six months, even if life-sustaining treatment was provided.
If you sign the Directive, you should inform your physician and ask that it be made part of your medical record. If you become physically or mentally unable to do so, another person may inform your physician.
The Directive must be witnessed by two competent adults. Texas law does not require that the Directive be notarized.
At least one witness cannot be a person who:
- is related to you by blood or marriage;
- has a claim on your estate; has been designated by you to make a health care treatment decision on your behalf;
- your attending physician;
- is employed by your attending physician;
- is an employee of a health care facility in which you reside, if the employee is involved in providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.
The Directive becomes effective – meaning that life-sustaining treatment can be withdrawn – only when you become a “qualified patient.” A qualified patient means a patient with a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician.
No one may deny you insurance or health care services because you have chosen not to sign it. If you do sign the Directive, it will not affect your insurance or any other rights you may have to accept or reject medical treatment. If your attending physician chooses not to follow the Directive, your physician must make a reasonable effort to transfer responsibility for your care to another physician.
You may designate another person to make treatment decisions for you if you become incompetent or are otherwise mentally or physically incapable of communication. However, you do not have to do so in order for the Directive to be a legal document. If you do, that designated person may also execute an out-of-hospital do-not-resuscitate order.
Please contact Waterbury Law. P.C. so that we can discuss the best option/s for you.