Page 11 - San Antonio Vol 1 No 2
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a bene ciary receives any govern- mental bene ts that are needs-based, it is critical that a special needs trust be created so as to prevent the loss of those bene ts. Additionally, it is un- common for a testator to want his or her 18, 21, or even 25 year old son or daughter to have unfettered access to any assets he or she might otherwise receive; trust, placing those assets in a testamentary trust can help with the desired management and access.  at said, testators tend to impart the re- sponsibilities of being trustee on their child once the child reaches the age of 30, 35 or 40. Because the foregoing circumstances can change over time, it is important that the testator be re- minded to periodically review their last will and testament to ensure that it continues to meet their goals, objec- tives and concerns.
Importantly, a testamentary trust can also help avoid a guardianship, whether for the surviving spouse or other bene ciary. Over the past few years, the Texas legislature has modi-  ed the statutes governing guardian- ships, which has arguably made it more challenging to create a guard- ianship. While the new statutes serve an important purpose in ensuring the safety and well-being of a Ward, it o en makes more di cult a family’s e orts to help a loved one. Moreover, a guardianship proceeding is exceed- ingly stressful, expensive and time consuming for all involved.  us, with the creation and funding of a tes- tamentary trust, the need for and is- sues arising from a guardianship can o en be avoided.
ADDITIONAL LIFETIME DOCUMENTS
Although many clients seek assis- tance with the preparation of their Wills, it is important to not overlook the additional lifetime documents that are critical to a client’s overall es- tate plan, which include, but are not limited to, a statutory durable power of attorney, a medical power of attor- ney, an advanced directive, a HIPAA authorization, an appointment of guardian, both for the testator, as well as the testator’s minor children, and the appointment of agent for disposi- tion of remains. Moreover, signi cant legislative changes were recently made to both the statutory durable power of attorney and Texas’ medical power of attorney; therefore, even clients with existing lifetime documents should revisit those documents in light of the current law.
For example, the current statutes pertaining to Texas’ statutory durable power of attorney were amended in 2017 to enable a principal to grant new, additional powers to the agent. Commonly referred to as “hot pow- ers,” a principal can now expressly au- thorize an agent to do the following: (1) create, amend, revoke, or termi- nate an inter vivos trust; (2) create or change a bene ciary designation; (3) create or change rights of survivor- ship; and (4) make gi s. In addition, a principal can select one or more persons to serve together or indepen- dently of one another as co-agents, and can expressly authorize an agent to receive reasonable compensation or to be reimbursed for expenses in-
curred while serving as agent.  ese important revisions to the statue help to clarify the powers, authority and duties of an agent as well as con rm- ing whether co-agents can be named and whether co-agents, if named, must jointly act when serving.
 e revised Texas Medical Power of Attorney statute became e ective as of January 1, 2018 requiring the man- datory disclosure statement that pre- cedes the medical power of attorney to be included as part of the power of attorney. Updating the medical power of attorney form is critical to ensuring that a client’s agent for med- ical decisions is properly named and recognized for any medical power of attorney signed a er January 1, 2018.
In sum, signi cant problems and unintended consequences can arise when a client does not have estate planning documents or has inad- equate documents. If a stroke has occurred, it may be unlikely that a client can sign a power of attorney which might otherwise circumvent a guardianship. If a client dies without a Will, but leaves a child from a prior marriage or relationship, the division of the separate and community estates can be devastating to the surviving spouse. While “simple” estate plan- ning documents may be su cient in the appropriate circumstances, in other situations a more complex plan may be necessary to carry out the cli- ent’s goals and wishes and to address estate tax and income tax conse- quences. Knowing these di erences can help you best advise your client.
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