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End of Life Documents

Introduction

The average Texas licensee in 1998 was 50 years old, according to a study by the Real Estate Center. In a National Association of Realtors survey conducted in 2012, the typical Realtor nationwide was 56, and in Texas, 54. Texas real estate licensees are not getting any younger, so it is prudent for them to give thought to their future business and health care decisions. Wills come to mind immediately. Two Tierra Grande articles discuss the various types of wills recognized in Texas, how to make them self-proving and how your assets will be divided if you die without one (see Center publications No. 2001, “Self-Proving Wills” and No. 2019, “Where There’s No Will . . .”). Other documents beg consideration as well. For example, Durable Powers of Attorney are needed to manage your assets when you are unable to do so; Living Wills and
Medical Powers of Attorneys can be used to make advance critical medical decisions or grant the authority to others. These and other documents will be discussed. In addition, forms for each document are included for the reader's scrutiny. 

Powers of Attorney

By executing a Power of Attorney, you (the principal) grant another person, known as an attorney-in-fact or agent, the authority to manage your assets, among other things. You decide how long the agent serves and the scope of his or her authority. Your attorney-in-fact should be someone you trust implicitly,
even though this person owes you a fiduciary duty to serve in your best interests. For married couples, this is generally the spouse.

A subsequent divorce or annulment terminates the Power of Attorney. The duration of the agent’s authority depends on whether you make it durable or not. According to the statute, a Durable Power of Attorney confers on the agent the continued authority to act, notwithstanding your subsequent disability or incapacity.

Statements such as “This power is not affected by subsequent disability or incapacity of the principal” or “This Power of Attorney becomes effective on the disability or incapacity of the principal” confirm its durability. Apparently, the absence of this or similar language means the right to act does not survive your subsequent disability or incapacity. More specifically, the statute describes a Durable Power of Attorney as one that “does not lapse because of the passage of time unless the instrument creating the Power of
Attorney specifically states a time limitation.”


The statute defines a Durable Power of Attorney as one that:


• designates another person as an attorney-in-fact or
agent,
• is signed by an adult principal,
• contains wording that the power survives the principal's
disability or incapacity as described earlier and
• is acknowledged by the principal before an officer
authorized to take acknowledgements to deeds and
administer oaths.


An added benefit of a Durable Power of Attorney is that you avoid having the court appoint a guardian once you become incompetent. However, if the court appoints a permanent guardian, the Durable Power of Attorney terminates, and all assets under the agent’s control must be delivered to the guardian of the estate. Whether durable or not, no Power of Attorney survives the principal’s death. Finally, the scope of the authority depends on whether you grant a general or special Power of Attorney. Basically, a General Power of Attorney permits the agent to enter any legal transaction you could enter.

A Special Power ofAttorney limits the authority to specific tasks. The promulgated Statutory Durable Power of Attorney Form lists 13 specific types of transactions the agent may enter into on your behalf, real property transactions being one of them. You have the option of eliminating one or more of the
transactions by crossing them out or not initialing the space provided before the enumerated transaction. You may also enter special instructions limiting or extending the powers and the time frames in which they may be exercised. The statute provides that the validity of the Power of Attorney is not affected by the fact that one or more of the listed categories are not initialed or the principal includes specific limitations or additions to the environmental powers.
 

Advance Directives Act

Texas legislators passed the Advance Directives Act found in Chapter 166 of the Texas Health & Safety Code (THSC) to explain and clarify three advance medical directives for Living Wills, Medical Powers of Attorney and DNR (Do Not Resuscitate) Orders. The act describes how each is issued (declared) or executed and revoked. The act does not cover Powers of Attorney or Anatomical Gifts.


Any competent adult (the declarant) may at any time execute a written advance directive. The written directive must be signed in the presence of two qualified witnesses who also signed. Alternatively, the directive may be signed and acknowledged before a notary public. Likewise, any competent qualified adult patient may issue a nonwritten directive. However, the nonwritten directive must be issued in the presence of the attending physician and two qualified witnesses. The attending physician must evidence the existence of the nonwritten directive by making this fact a part of the declarant’s medical record along with the names of the witnesses.


According to the statute, a qualified witness, whether to a written or nonwritten directive, must be a competent adult. But, one of the two cannot be:


• a person (sometimes referred to as the agent) designated
by the declarant in the document to make a
treatment decision;
• a person related by blood or marriage;
• a person entitled to any part of the declarant's estate
by will or by operation of law;
• the attending physician or his or her employee;
• an employee of a health care facility where the declarant
is a patient and the employee is providing direct
patient care to the declarant 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 or
• a person who, at the time the directive is issued, has
a claim against any part of the declarant's estate after
the declarant's death.

“A qualified patient” refers to a patient with terminal or irreversible conditions that have been diagnosed and certified in writing by the attending physician. The terms terminal and irreversible conditions are used most often in association with Living Wills. They are defined in the next section. A nonwritten directive is not defined. Once a directive is issued, it remains effective until revoked. This occurs one of three ways. The first is by the declarant or someone in the declarant's presence and at the declarant's direction canceling, defacing, obliterating, burning, tearing or otherwise destroying the written directive.

The second way is by the declarant signing and dating a written revocation that expresses the declarant's intent to revoke the directive. Finally, the declarant may orally state his or her intent to revoke the directive, after which this fact is communicated to the declarant’s attending physician. If the revocation is in writing, it takes effect only after the declarant or a person acting on his or her behalf notifies the attending physician of its existence or mails the revocation to the attending physician. The attending physician or the physician's designee must record in the patient's medical record the time and date when the physician received the written notice of the revocation. Thereafter, the word "VOID" must be written on each page of the directive in the patient's medical record. If the revocation is rendered orally, it takes effect only after the declarant or a person acting on his or her behalf  notifies the attending physician of the revocation.

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