Who Cares for My Minor Children When I Don’t Have a Will?

In Texas, the law states that as ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????a parent of a minor child you have numerous rights and duties.  Among them is to care, control, and protect the child.  Most parents also desire to keep their children safe, teach them morals and keep them healthy.  But if you don’t have a will or trust appointing a guardian for your children, who will care for your children when you die?

To the surprise of most people, family members (except for another parent) cannot simply assume responsibility for minor children.  A state court must appoint someone to assume the parents’ duties in their absence.

Many times that court will decide in a manner that you might not have objected to if you had made the decision.  But that is not guaranteed.  And this process can be very stressful for your children and result in some unsettling situations where children are split up or they end up with someone whom you never would’ve chosen. The state may prioritize location, lifestyle or relationship differently than you would have.

There is no single rule for how a ruling might be made. There are so many possible outcomes for your children if you fail to properly plan ahead for them. For that reason alone, preparing a will with the advice of an estate planning attorney is especially important.

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Do Not Resuscitate

dnrI frequently am asked by clients whether they should execute a DNR form so paramedics won’t resuscitate them.  I usually suggest they discuss this matter with their primary care physician before going any further.

Recently, Virginia Hammerle, an attorney in north Texas, wrote the following post on her blog providing an insightful description of what the DNR is and isn’t.

The Out-Of-Hospital Do Not Resuscitate Order – A Document That You May Not Want To Sign Now

by Virginia Hammerle in Estate Planning and Probate, Legal Talk

Previously we looked at two “must-have” Texas documents: the Medical Power of Attorney and the Directive to Physicians. Rounding out the Medical Advance Directives triumvirate is the “Out-of-Hospital Do Not Resuscitate Order.” While the other two documents are serious, this document wins the prize for being the most intense. It is your instruction that you…

Previously we looked at two “must-have” Texas documents: the Medical Power of Attorney and the Directive to Physicians. Rounding out the Medical Advance Directives triumvirate is the “Out-of-Hospital Do Not Resuscitate Order.”

While the other two documents are serious, this document wins the prize for being the most intense. It is your instruction that you should not be resuscitated by CPR, advance airway management, artificial ventilation, defibrillation, transcutaneous cardiac pacing or any other life-sustaining treatment specified in the Texas statute.

If you are competent, then you can sign your own OOH DNR. You must sign in front of two witnesses or in front of a notary. Unlike the other two documents, however, the OOH DNR is not valid unless it has also been signed by your physician.

While you can sign the document at any time, you should carefully consider if you really want this one to be effective now. For most people, this is a document that should be signed only at the end stages of a terminal or irreversible condition.

The “out-of-hospital” coverage for the document is surprisingly broad. It is effective in locations where health care professionals are called for assistance. That includes long-term care facilities, in-patient hospice facilities, private homes, hospital or stand-alone outpatient or emergency departments, physician’s offices, or vehicles during transport.

The coverage does not include, obviously, in-patient hospital areas. There is a different document for that, creatively named “In-Hospital Do Not Resuscitate Order.” Since your out-of-hospital DNR is not effective in a hospital setting, you can request that an in-hospital DNR be placed in your medical records so the hospital staff does not perform CPR on you. Like your OOH DNR, the in-hospital DNR has to be counter-signed by your doctor.

Once you have an OOH DNR, then your next step is to make sure everyone knows about it. You should purchase a DNR Identification device which can be worn around your neck or as a bracelet. You should tell your caregivers and keep a copy of your OOH DNR near you, prominently displayed. Hospice companies will routinely request a copy for their records.

Be forewarned: having the OOH DNR is not a guarantee that it will actually be followed. While a health care professional is required to comply with a valid OOH DNR if the professional actually knows about it, the professional is also required to determine that the OOH DNR has been properly executed and verify your identity. In the real world, that means that, when in doubt, emergency personnel and other health care professionals will resuscitate you.

An OOH DNR is effective until it is revoked. How do you revoke it? You can destroy the form and remove your identification device, you can revoke it in writing, or you can verbally communicate to a health care professional that you want it revoked.

Now for the fine print. An OOH DNR will not be honored if you are pregnant. An OOH DNR can only be used in conjunction with the “natural process of dying.” If you have revoked an OOH DNR, you can re-execute it at any time. If you don’t have capacity, if you do not have a guardian, and an OOH DNR is appropriate, then it can be executed by (in this order) your spouse, your reasonably available adult children, your parents, or your nearest living relative.

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What If I Die Without a Will?

I’m often asked if people really need a Will.  My flippant response is often “it depends, but if you are not going to do one, take my card and give it to your family because they will most likely need a good attorney when you die.”  When you die without a Will, an already difficult time can become a complicated legal situation for your family.  The effect of dying without a Will depends on what state you reside in at your death, but the general impact is fairly consistent in most states.  Most likely you will have a more complicated probate process than if you had a Will and depending upon your family situation, people may manage and inherit your estate who you would not have selected if you had done a Will.

do-it-nowSo why don’t more people have Wills?  There are many reasons people give for not having a Will.  These are a few:

  • Too Young.  Even the youngest adults are likely to benefit from having a Will.  You can designate someone to manage your affairs upon your death and the person or persons who are to receive your estate.  Once you are married or have children the reasons for having a Will as a young person are even more compelling.
  • Lack of Property. Even if you have little to no property, it still must be dealt with after your passing. Without a Will, no one has the authority to make decisions, thus making the process more stressful for those you leave behind.
  • Indifference.  Like being too young, even middle age and elderly people often think they don’t need a Will until they are in a nursing home or on their death bed.  By then it may be too late.
  • Time and Effort.  Some people may know that they need to appoint someone to manage their affairs after their death, but when they try to think who that should be they become confused or discouraged about making the selection.  But meeting with an estate planning attorney in person can often suggest alternatives to resolve concerns. In the end, the time spent is a good investment.
  • Legal Fees: The cost of hiring an estate planning lawyer and ensuring you have a legally sound Will can often more than pay for itself in the conflict avoidance among your loved ones after your passing.

I urge everyone to at least sit down with an estate planning attorney to discuss your situation in general terms to see what benefits you might gain by having a Will.  Most attorneys will tell you if you are in a situation where a Will is not necessary.

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