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Wills, powers of attorney, and advance directives must be executed while the person is alive, awake, and competent Contact Now

The legal documents every Texan adult should have in place today

Wills, powers of attorney, and advance directives must be executed while the person is alive, awake, and competent

A married woman in her 60s with end-stage renal disease (ESRD) went to an outpatient dialysis center in downtown Houston for hemodialysis treatments. She and her husband were happily married but maintained separate bank accounts.

One day, while sitting in the dialysis chair and receiving treatment, this woman became nonresponsive. She wasn’t breathing. From the dialysis center’s medical records, it looked like no one had checked on her for around 20 minutes. When the licensed vocational nurse (LVN) finally recognized the problem, she immediately called 911. An ambulance crew took the patient to a nearby hospital.

By the time the patient received medical attention, it was too late. She had a permanent hypoxic or an anoxic brain injury caused by a lack of oxygen. She remained hospitalized in a comatose state.

Her attentive husband stayed with her in the hospital every day, but quickly ran into difficulties because his wife didn’t have any basic legal documents in place.

Fortunately, the health care providers recognized him, as the spouse, as the surrogate medical decision-maker. He had no such luck, though, in dealing with financial institutions.

His wife’s retirement and Social Security benefits were direct deposited each month into her checking account. The checking account was in the patient’s name only and her husband had not been added as an authorized signer.

The husband was cash-strapped without access to her bank account and was having difficulty paying their basic household needs, as well as expenses related to her care.

He only had two options.

One, he could hire an attorney to file an application for a guardianship, based on her permanent disability. This would cost thousands of dollars, at least a few months of time, and require a court hearing.

Second, he could leave his wife’s checking account alone until she either woke up or passed away.

Based on his limited financial resources, the husband decided to leave it alone. Tragically, his wife died from the medical negligence of the dialysis center. After she died, her bank eventually turned the money over to the Texas unclaimed property registry, and the husband was finally able to obtain it over a year after her passing.

The legal documents that every adult should have

We recommend that every adult have some basic legal documents in place:

• A will: This legal document addresses how you want your property and belongings handled upon your death and identifies your desired guardians for any children.

• A durable power of attorney: This legal document designates an agent who can make financial decisions on your behalf. It can be drafted to become effective immediately or only when you are incapacitated. With a durable power of attorney, your agent is standing in your shoes when making business, banking, or financial decisions.

• A medical/health care power of attorney: This legal document designates an agent who can make medical or health care decisions on your behalf. This document is helpful to have for a variety of reasons, including identifying the person who has the final say in decisions when you are incapacitated and there may be a disagreement among family members.

• An advance directive: This legal document puts in writing your desires for the provision of life-saving treatment and end-of-life care. Interestingly, during the 2020 era of COVID-19, Gallup and the University of Pennsylvania separately reported huge increases in the number of individuals completing advance directive documents online.

Speaking of online, while there are various online options for all of these types of documents, we recommend hiring an experienced Texas attorney for professional advice in preparing the documents and making sure they are enforceable. I can’t tell you how many times I’ve encountered clients who lost a loved one, only to find out that their penny smart, pound foolish online documents are not legally enforceable under Texas law.

You can’t wait until you need the documents

A few years ago, a frantic woman called our office to request our help in putting together a durable power of attorney and will for her ailing, hospitalized husband. We explain that she would need to set up an appointment for her husband to go over the documentation. That’s not what she had in mind, though. You see, her husband was completely unconscious, was never expected to wake up again, and was facing a surgery with slim odds of survival.

This poor woman was going through a lot. I hated to have to explain to her that there was simply nothing that we could do. An unconscious person certainly cannot sign a power of attorney of any type or a will.

The time to put these important legal documents in place is now, or at least while you’re still alive, conscious, and of a sound mind. To wait until something terrible happens in your life creates a significant risk that your wishes will not be followed or honored and can cause your family the stress of having to deal with legal wrangling and processes in a time of mental distress.

If you need help with powers of attorney, an advance directive, or wills, then contact our office for professional help.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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