Legal Documents Every Family Needs

By Lena Engelage and Kelly Roberts Smith
Attorneys at Law

(The purpose of this article is to provide general information only and should not be relied on as legal advice nor considered a solicitation to provide legal advice.)

If you are like most people we know, you’re very busy caring for your families, taking your children to dance class, soccer games and other activities. The last thing on your “to do” list is preparing a Will to name a Guardian for your children in the event you and your spouse die in a sudden accident, or signing an Advanced Directive telling doctors if and when to “pull the plug.”

These are only two of the seven basic legal documents that we recommend every person consider, in order to be prepared for unforeseen emergencies. The alternative is to allow others, possibly a Court, to make these important decisions for you and your family. There are many exceptions and limitations regarding these documents that are not discussed in this article. This article is only intended to provide a very basic overview of certain legal documents you may want to consider having prepared for your family.

Why do you need a Will? To put it simply, a Will protects your loved ones and your assets. A Will controls the distribution of your property upon your death. If you do not have a Will, your estate will pass according to the intestacy laws of Texas. The intestacy laws may cause your property to pass in a way you would not want, and it can be more expensive for your estate, since the Court will be directing the process. A Will allows YOU to dictate not only who will inherit your property, but also how they will inherit your property (outright or by trust). If you have minor children, your Will should include a Designation of Guardian for Minor Children, and it should appoint a Trustee to manage their property. Without a Will, the Court will appoint a Guardian, and it may not be a Guardian you would have chosen.

What is an Advanced Directive to Physicians? An Advanced Directive to Physicians is commonly referred to as a Living Will. If you are unable to make a medical decision because of illness or injury, this document allows you to specify, in advance, whether you want to continue life sustaining treatment if your condition is irreversible or terminal, and the treatment would artificially prolong the time of death. In layman’s terms, this document is about whether you would want to be “kept alive by machines.” Examples of life sustaining treatments include tubal feeding and mechanical respiration.

Why do you need a Medical Power of Attorney? This document allows you to designate a person (and alternates) to make treatment decisions for you (i.e. surgery), if you become incompetent or unconscious. The doctors, hospitals, and the nursing homes are able to rely on the decision of the person you chose. A Medical Power of Attorney should also include a HIPAA Release, because without such language the Medical Power of Attorney is useless. If you have already executed a Medical Power of Attorney, without that important HIPAA language, you can execute a separate HIPAA Release to authorize the disclosure of the protected information.

What is a Durable Power of Attorney? With a Durable Power of Attorney, you have the ability to name an agent to manage your property and financial affairs. If you are ever incapacitated, this document allows the agent to handle your affairs without the necessity of going to Court to have a Guardian appointed. Because this document gives the agent power to manage some or all of your property and financial affairs at any time, this document is only effective if you can find a trustworthy family member or friend.

What other documents do you need? A Designation of Health Care Agent for Children is a good idea if you leave your children with a babysitter or family member or are planning to travel out of town without your children. This document gives the named agent the authority to make health care decisions for your children when you are not available. It can also give your designated agent authority to travel outside of Kingwood to seek medical attention for your children (for example, if you want the children taken to Texas Children’s Hospital for treatment).

You can also execute a Designation of a Guardian for yourself. The Powers of Attorney and Advanced Directive to Physicians are designed to avoid guardianships, but sometimes that is not possible. If you designate a Guardian in advance, you (rather than the Court) may select a person to serve as your Guardian. You can also specify who you DO NOT want to serve as your Guardian.

Why do I need to think about these things? It may be difficult to think about these types of documents, but the alternative is to let the Texas laws and Courts make these life changing decisions for you and your family. Once you execute some or all of these documents, it is a good policy to perform regular reviews of your estate plan. Make a point of reviewing your estate plan every five years or if your financial circumstances or marital status has changed.

The purpose of this article is to provide general information only and should not be relied on as legal advice nor considered a solicitation to provide legal advice.

Lena Engelage (281-359-7529) and Kelly Roberts Smith (281-359-0001) are attorneys who practice in the Kingwood area. Lena is the mother of Emma (4) and Sydney (2), and Kelly is the mother of Molly (4) and Riley (2).