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Why do I need a Will?

Because you have worked hard to accumulate what you have and you want it to be distributed to those you care most about in the manner you choose and, not just according to what the state says you must do. Also, because if your estate requires probating at your death, it is a much faster, cleaner, less expensive process than if you had died intestate (without a Will) and will be far less painful and troublesome for those you leave behind.

Why do I need Powers of Attorney?

First of all, there used to be one catch-all "Durable Power of Attorney" that was intended to allow the named agent to handle all of another person's affairs, whether medical, financial, real estate or others. Title companies and banks began to require much more detail and in some cases were not transferring title based on the old Durable Power of Attorney. There are now two independent Powers of Attorney in its place. These are the “Statutory Durable Power of Attorney” (for financial decisions) and the “Medical Power of Attorney” (for medical decisions).  The Statutory Durable Power of Attorney will allow your Agent to make financial transactions on your behalf during the time you are incapacitated (i.e., in a coma, suffering from dementia or any other period of time in your life when you can no longer make rational decisions for yourself).  Once you are deceased, the Statutory Durable Power of Attorney expires and the Executor of your Will takes over from there.  Without a Statutory Durable Power of Attorney, if you were to become incompetent and unable to handle your financial affairs, your family would need to seek a formal Guardianship in order to handle your financial affairs and every move must be approved by the Court.  The Statutory Durable Power of Attorney can help avoid the necessity of a Guardianship.

The Medical Power of Attorney and Living Will allow your Agent to make decisions with your doctors, such as, “I know he/she would prefer medication over surgery, given the risks involved with this surgery.” Again, the Medical Power of Attorney is only effective if you are deemed by your doctors to be incapacitated and unable to make decisions for yourself or unable to communicate your wishes. Without the Medical Power of Attorney and the Living Will, the hospital must use all heroic measures available to keep you alive, even if you have been determined “brain dead” or in a vegetative state already. Without a Medical Power of Attorney and the Living Will, your loved ones may expend your entire hard-earned estate paying medical expenses to the hospital, doctors and/or nursing home.

What is the "Living Will" you referred to?

This is the signed statement that will let the doctors and the hospital know you do not wish to be kept alive if you are deemed terminal and "brain dead". Again, as stated above, the hospital will do everything they can to keep you "alive" even if you are no longer able to live a reasonably healthy and active life. For example, a very dear friend of mine was raised by his Grandmother. Because she had never given anyone a Power of Attorney and had never done a Living Will, he watched her suffer over the last three years of her life, flat on her back, fed by a feeding tube in her stomach in a vegetative state, with brain damage and unable to communicate in any manner. No one should have to "live" like that if that is not their wish!  You may elect to receive water and/or nourishment and/or pain medication and nothing else, if you wish.  Certainly, for religious reasons some will not want a Living Will, but most of us choose to have one.

Why not just do a Guardianship?

Two words come to mind: Hassle and Cost. Yes, you can seek to obtain Guardianship of a Person or of a Persons' Estate or of a Person and their Estate. The initial retainer for attorneys' fees for a Guardianship are at least ten times that of a Power of Attorney. Also, the appointed Guardian is required to file with the Court detailed accountings and annual inventories through the attorney throughout the life of the "Ward." This means the Guardian will be going back to Court repeatedly each time you need to transfer funds, etc. or move an elderly parent to another home or a nursing home, if that be the case. All of this incurs additional attorney fees each time. Sometimes of course a Guardianship is your only option! It can be a lot less painful if you obtain an attorney who does these regularly and has experience in Guardianships. But, the least expensive course of action is to obtain Powers of Attorney for both health care and for financial affairs prior to your loved one becoming incompetent.  Once an individual is deemed incompetent by his or her doctor, it is too late to obtain Powers of Attorney.  In that event, a restrictive Guardianship may be the only remaining alternative.

The Law Office of Elaine K. Ryan

669 Airport Freeway, Suite 310
Hurst, Texas 76053-3984


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