Estate Planning (Common Questions)

Common Questions About Estate Planning


Though we do not usually realize it, medical procedures often should involve the assistance of an attorney. Certainly, before anyone undergoes a serious medical procedure they should confirm that their Will still meets with their approval. If they do no have one, they should see one prepared before surgery. Recently we were approached by an individual facing brain surgery. She had recently been married and prior to the marriage, she had adopted several children. She asked if any legal documents should be drawn up in case the surgery did not go well.


Q: I don’t have a lot of time until my surgery and I certainly do not want to focus on legal work. What is the minimum I need to do to ensure my family is well taken care of if I should die?


A: The quick answer is: get a lawyer. You don’t want to spend these days leading up to surgery worrying about legal procedures. A good estate lawyer will not cost you much compared to the cost of the surgery you are to undertake. If any of the documents must be used, then every penny you spent will be worth it.


Q: What should I ask for from the attorney?


A: Generally, they should tell you what they recommend in the way of documents. First, they will want to look at your will, if you have one. If it has been prepared several years ago, they may want to replace it with a modern will that reflects recent law changes and court decisions. Most often, a lawyer recommends replacing a will because something has changed in the client’s life. For example, they may have gotten married or had children.


Q: I was recently married and before that I adopted three children. What should I do?


A: After your lawyer has looked over your will, he is going to suggest re-writing it. One thing a lawyer will probably recommend is that your will designate a guardian of your minor children in the event of your death. You may choose to have your new spouse serve as the guardian but you do not have to. Since your new spouse is not the natural parent of the children and and your children were not adopted by your new spouse, you may select anyone to be the guardian of your children. Keep in mind, should your guardian have to perform their duty, a Court will have to appoint them based upon your guardianship documents. Notwithstanding your selection, the Court will interview the guardian and children to determine if it is in the child’s best interest that the designated guardian serve.


Q: That takes care of my children, but what happens to me? Is there anything I can do to predetermine if I am left on life support for a long period of time?


A: That will be the next issue explored by your lawyer. Texas law provides that you can adopt a physician’s directive on a living Will. This document can appoint someone to make decisions regarding ongoing care on your behalf. It is also your opportunity to direct the circumstances under which you wish to be revived by your doctors or placed on life support. In your situation, a document like this is critical; however, this document is a good idea for everyone, as one never knows when a sudden accident could place them in a life threatening situation.


Q: What if I am in the hospital when it occurs to me that I should do these things?


A: Hopefully that does not happen. Everyone with a family or assets should have these documents prepared before something like this situation arises. Either way, someone in the above situation would want these documents reviewed to ensure they are current but having them in place for emergencies is key. To answer this question, most lawyers will come to the hospital to prepare your documents.


Q: Are there any special issues to worry about regarding documents signed at the hospital?


A: First, you will need to sign your documents in the presence of a notary public, but your lawyer will often handle that part. Second, you will need to have two unrelated people present to witness the document. These witnesses cannot be family members. In fact, if one of your family member witnesses are to be beneficiaries under your will, then your lawyer will recommend against it because it could make your documents unenforceable.


Q: Anything else regarding hospital/lawyer visits?


A: Yes. The law says you must have mental capacity to sign the documents discussed. If you are under the influence of heavy medication or if there is some evidence that you are under duress to assign assets to a beneficiary, then your documents may be heavily fought over in court and they may be set aside by the judge. Your lawyer will know ways to address these issues but this is yet another reason to get this work done early in life so that when you are faced with this situation you will know this part of the work is done.


Q: Any other concerns I should raise with my lawyer?


A: There are several areas your lawyer may wish to discuss. Perhaps the most important is your estate planning. Because a lot of property (life insurance/investments) passes outside of your Will, you may want to take some steps to protect those assets. Your lawyer will know what to do. One thing you may also ask your lawyer about is the reputation of the doctor/surgeon.

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