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    Alzheimer's Disease Program
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    PO Box 149347 Austin, TX 78714-9347
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    Austin, TX 78756

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Legal Planning: Questions and Answers

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Texas Council on Alzheimer's Disease and Related Disorders

 

Why is advance planning important?

Everyone should devote time to planning for the future, such as establishing a will or estate plan to ensure that their wishes are carried out as they intended. For a person with Alzheimer's disease, advance planning is essential to fulfilling end-of-life wishes. Individuals with Alzheimer's may have the capacity to manage their own legal affairs right now, but as the disease progresses, they will need to rely on others to act in their best interest.

Advance planning protects an individual's right to make their own healthcare and financial choices and prevents unnecessary suffering for families who may struggle with these decisions later on. It is a proactive process that enables the individual to make decisions about their future, along with family members, healthcare providers and counsel, prior to their physical and cognitive decline.

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What are healthcare directives?

There are certain documents and relationships that must be put into place to assure the future needs and desires of the Alzheimer's patient are executed. An advance directive is any statement made by a competent individual about preferences for future medical treatment in the event that the patient is unable to make decisions at the time of treatment. The two most common forms of advance directives are the Texas Directive to Physicians and the Texas Medical Power of Attorney.

  • Texas Directive to Physicians and Family or Surrogates (formerly called Living Will): a written statement of wishes regarding the use, withholding or withdrawal of life-prolonging treatment, nutrition and hydration if a person has a terminal condition and is incapable of making decisions for himself at that time. The directive can prohibit OR authorize the use of life-prolonging treatments when a person's condition is terminal or irreversible. For example, the document may state that the signer's life should not be artificially prolonged by extraordinary measures when there is no reasonable expectation of recovery from extreme physical or mental disability. However, the document can request that every effort be made to prolong life by extraordinary measures. Under "additional requests," the individual can add personal instructions, such as "I want to receive as much pain medication as necessary to ensure my comfort," or "I do not want a food tube inserted." Generally, this directive only goes into effect if the person is no longer able to make his own decisions.

  • Texas Medical Power of Attorney (formerly called durable power of attorney for healthcare): allows the individual (principal) to assign someone (agent) to make decisions about his medical care in the event that he becomes incapable of making informed decisions. It also allows the principal to provide the agent, family members and healthcare providers with written instructions regarding the kind of treatments that should or should not be given. Even with the Medical Power of Attorney in place, the individual will continue to make his own medical decisions as long as he is capable of doing so and can communicate those decisions. The agent's authority starts only when the attending physician certifies in writing that the individual no longer has the capacity to make those decisions. Further, a power of attorney can be changed or revoked at any time and does not give the agent authority to override the decision-making of the principal. For the Alzheimer's patient, this means that he retains the right to make his own decisions as long as he is competent.

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What do I do to protect my estate?

Just as there are healthcare directives, there are similar legal documents and processes available to ensure the principal's financial matters are handled according to his wishes.

  • Statutory Durable Power of Attorney: authorizes an agent to manage and make decisions regarding the income and assets of the principal. The agent is responsible for acting according to the instructions and in the best interest of the principal.

  • Revokable Trust: another way to ensure the management of property. In this case, a trustee is appointed to invest and manage an individual's trust assets in the event that he is no longer able to manage finances because of cognitive impairment.

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What happens in the event of incapacitation?

Texas law provides that a court may appoint a guardian for a person who has become mentally or physically incapable of making personal or financial decisions. Guardianship is a legal relationship that gives the court-appointed guardian the duty and right to act on behalf of the incapacitated individual to make personal, legal and financial decisions.

  • Declaration to Appoint Guardian: document designed to prevent a probate court from appointing an institutional guardian in the event of later incapacity. The Declaration to Appoint Guardian is often executed contiguously with the Texas Medical Power of Attorney and Statutory Durable Power of Attorney. In many cases, the Medical Power of Attorney serves as guardian of the person and the Statutory Power of Attorney serves as guardian of the estate.

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What do I do once I've completed these forms?

Once these documents have been completed, there are a few final steps that should take place to make them effective:

  • Each document has certain signature and witness requirements. The Texas Medical Power of Attorney, Statutory Durable Power of Attorney, and the Declaration to Appoint Guardian must be notarized.
  • A copy of all signed documents should be stored in a safe but accessible place, given to family members and significant others and retained by one's attorney.
  • A copy of the signed Texas Directive to Physicians should be given to the individual's doctor(s) and hospital.
  • The principal should also discuss his wishes concerning medical treatment with the agent, doctors, clergy and family and friends.
  • A copy of the signed Texas Medical Power of Attorney and Statutory Durable Power of Attorney should be given to the respective agents.
  • If the principal wants to make changes to the documents after they have been signed and witnessed, he must complete new documents.
  • The Texas documents can always be revoked.
  • Be aware that the health directives will not be effective in the event of a medical emergency. Ambulance personnel are required to provide cardiopulmonary resuscitation (CPR) unless they are given a separate order that states otherwise. These orders, called out-of-hospital do-not-resuscitate orders, are designed for people whose poor health gives them little chance of benefiting from CPR. These orders must be signed by the individual's physician and instruct ambulance personnel not to attempt CPR if the individual's heart or breathing should stop.

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Where can I get these documents?

The documents outlined above should be accessible from your attorney. Additionally, free forms can be downloaded from the Internet.

 

Form Web Site
Texas Directive to Physicians http://www.dads.state.tx.us/news_info/publications/handbooks/index.html
Texas Medical Power of Attorney http://www.dads.state.tx.us/news_info/publications/handbooks/index.html
Statutory Durable Power of Attorney http://texasprobate.net/forms/poa.htm
Declaration of Guardian http://texasprobate.net/forms/dgadult.htm
Out-of-Hospital Do-Not Resuscitate Order http://www.dshs.state.tx.us/emstraumasystems/dnr.shtm

 

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Where can I get help with legal planning?

Legal Hotline for Older Texans: 1-800-622-2520
www.tlsc.org/
The Legal Hotline for Older Texans offers free advice and assistance with completing powers of attorney, do-not-resuscitate orders, and declaration of guardianship for Texans who are age 60 or over and have low income.

State Bar of Texas Certified Lawyer Referral Services

Fees for services are negotiated with the individual attorneys.

 

Name of LRS

Referral Line County
Corpus Christi Bar Assoc. 512-883-3971
Nueces
Dallas Bar Assoc. 214-220-7444
Dallas
El Paso Bar Assoc. 915-532-7052

El Paso
Harris County Bar Assoc. 713-236-8000

Harris
Houston Lawyers ReferralService, Inc. 800-289-4577
713-237-9429
Brazoria, Ft. Bend, Galveston, Harris & Montgomery
Jefferson County Bar Assoc. 409-835-8438
Jefferson & Orange
North Dallas Bar Assoc. 972-980-0472
Dallas, Collin, Denton, Tarrant
Plano Bar Assoc.
972-424-6113
Collin
San Antonio Bar Assoc.

210-227-1853
Bexar
Tarrant County Bar Assoc.
817-336-4101
Tarrant
Travis County Bar Assoc. 512-472-8303 Travis

 

If you are not served by one of these lawyer referral services, please call 1-800-252-9690.

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Last updated June 06, 2011