Elder Law: Elderly people should get estate planning documents done now
Those families who have members who are elderly should encourage them to either obtain or update, if need be, their estate planning documents now for several reasons. We are talking about wills, trusts, durable powers of attorney for finances, powers of attorney for health care, living wills also known as physician directives, declarations of guardian and HIPAA privacy act documents.
Why? You don’t know how long the person will be able to maintain mental capacity at a level that meets the requirements for the legal document they will be signing. Capacity decline can occur very quickly depending on events that the individual may encounter, such as a stroke, a fall, a concussion, or a sharp decline due to that fact that they already have dementia, Parkinson’s, or some other debilitating disease.
If the person is already suffering from a condition that is causing mental decline, don’t automatically assume that they don’t have the requisite capacity to execute estate planning documents. Texas follows the lucid interval rule which allows the person to sign documents and have them result in a valid document if the person had the requisite capacity when they signed.
But perhaps you already have estate planning documents. Why should you consider updating? Your documents of yesteryear may have been prepared before more advantageous documents became available in Texas or were legislatively updated, such as the durable power of attorney for finances. This document is one of the most important documents you need, and you don’t want a document that is inflexible when put to use in your current situation. Your document may have been drafted by an attorney who was unaware of special wording that was available then or became available later.
The ability to get documents done now, before the person ends up in a care facility may be crucial. Why?
Because of COVID, most care facilities are on lockdown, meaning, they aren’t allowing visitors at all. This greatly inhibits getting documents signed. Although there are still opportunities to get documents signed, it won’t necessarily be effective depending on the facility. One method is to perform a notary signing. The patient is brought to the window of their room while on a cell phone. The attorney/notary and witnesses are outside the window and on a cell phone.
The documents are prepared in accordance with Texas law allowing the maker to authorize the notary to execute the documents for them. Although effective, it’s less problematic if this method isn’t required. In other words, you should try to get your documents prepared before entering a facility. One nursing home in Houston refuses to allow any window visits with no reason given; just corporate policy.
Potential Medicaid applicants are especially in need of getting their documents done because without them, their family is going to be severely limited in their ability to help with Medicaid and getting assets and income structured in a way that gets Medicaid approved. You don’t know when capacity is going to be an issue. Your life can change overnight. A person who is elderly and has a fall, breaks a hip, goes to the hospital, gets discharged to a Medicare rehab and then is told that she cannot be discharged home because she needs long term care will have a difficult time getting documents signed.
With Medicaid or persons who may need nursing home on private pay, you should get your documents done now while you can still get them done easily.
You may visit our website at www.wrightabshire.com. Wesley E. Wright and Molly Dear Abshire are attorneys with the firm Wright Abshire, Attorneys, P.C., with offices in Bellaire, the Woodlands, and Carmine. Both are Board Certified by the Texas Board of Legal Specialization in Estate Planning and Probate Law and are certified as Elder Law Attorneys by the National Elder Law Foundation. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case, but should be considered general information.