Planning for Incapacity
What does the term “incapacitated” mean?
An adult is incapacitated if, because of a physical or mental condition, the person is substantially unable to provide food, clothing, or shelter for himself or herself, to care for his or her physical health, or to manage his or her financial affairs. Merely advanced age or hospitalization does not automatically mean a person is incapacitated.
How can I provide in advance for the management of my financial affairs should I become incapacitated?
As you grow older and the possibility of becoming incapacitated increases, it is wise to consider choosing a trusted friend or family member who will have the legal authority to manage your financial affairs without incurring the expense of a guardianship. This is done by executing a Durable Power of Attorney. A Durable Power of Attorney is a legal document in which a person (called a “principal”) appoints another person (called the “attorney-in-fact”) to manage the principal’s financial affairs. A Durable Power of Attorney will automatically terminate upon the principal’s incapacity under Texas Law unless it is durable, that is, unless it contains language to the effect that “This power of attorney is not affected by the subsequent disability or incapacity of the principal.” A Durable Power of Attorney form may be located in section 490 of the Texas Probate Code, located in your local law library.
Who will make medical decisions for me should I become incapacitated?
By executing a Durable Power of Attorney for Health Care, you can appoint one or more persons whose judgment you trust to make your medical decisions should you be unable to do so yourself. You can give your agent complete authority to make medical decisions, or you can limit his or her authority. Without a Durable Power of Attorney for Health Care, an adult surrogate can consent to medical treatment on your behalf if you become incapacitated. The adult surrogate, in the following order of priority, is as follows: (1) your spouse, (2) an adult child, (3) your parents, (4) an individual identified to act on your behalf before incapacity, (5) your nearest living relative, or (6) clergy.
What is a living will?
A living will is a common name for a document entitled “Directive to Physicians.” A Directive to Physicians allows you to direct that life sustaining procedures, such as use of a respirator, be withheld or withdrawn if two doctors certify in writing that you have an incurable condition and that death is imminent. A Directive form can be obtained from chapter 672 of the Texas Health and Safety Code, located in your local law library, or viewed in the “Directives to Physicians” section of this manual.
What is the difference between a Durable Power of Attorney for Health Care and a Directive to Physicians?
A Directive to Physicians has very limited application; it only applies to one medical treatment decision, the decision to withhold or withdraw life support when death is imminent. A Durable Power of Attorney for Health Care covers all medical treatment decisions.
What if I have a child or dependant with special needs?
Please see our section on special needs trust/supplemental needs trust.