Criss & Rousseau Law Firm routinely help estate planning clients reduce or eliminate taxes, avoid probate and provide for their family. Estate planning is more than planning for death. The other, potentially more important part, is disability planning. With proper disability planning, if you cannot make your own decisions because of an accident or illness, your bills can be paid, your assets can be managed, and your health care decisions can be made by the people you love and trust the most.
Unfortunately, inadequate estate planning often results in a judge stepping in; the family then loses a large measure of control of the process. At Criss & Rousseau Law Firm, we not only focus on the critical disability and death, we will strive to maximize your control during your lifetime and the control you want your loved ones to have at the time of your death.
Death and Disability
In addressing both death and disability concerns, we use proven legal techniques to help your family reach all of your estate planning goals. These include Revocable Living Trusts, Wills, Financial and Medical Powers of Attorney, Living Wills, Designations of Guardians for minor children, and Special Needs Trusts for families with special children.
Special Needs Planning
Special Needs Planning focuses on providing for the special needs of our loved ones with disabilities when we are no longer there to organize and advocate on their behalf. Parents of children with special needs must make careful estate planning choices to coordinate all of the legal, financial, and special care needs of their children, both now and in the future.
Many families struggle with the best way to provide for a child or other loved one who, due to a physical or mental challenge, may never be in a position to manage an inheritance. In addition, without proper planning, certain government benefits and supplements may be unavailable or much more difficult to obtain.
The Criss & Rousseau Law Firm can properly design a plan that incorporates Special Needs Planning to provide a lifetime of assistance for the special person and ensure that all of the benefits provided by outside sources are fully accessible.
There are several types of trusts to assist with these special planning challenges. The most common types are Support Trusts and Special Needs Trusts. Special Needs Trusts are a critical component of your estate planning if you have loved ones with disabilities for whom you wish to provide after your passing.
Last Will and Testament
Your last will and testament is just one part of a comprehensive estate plan. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed. Some things you should know about wills:
- A will has no legal authority until after death. Therefore, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury.
- A will does not help an estate avoid probate. A will is the legal document submitted to the probate court.
- A will is a good place to nominate the guardians (or back-up parents) of your minor children if they are orphaned. All parents of minor children should document their choice of guardians.
Powers of Attorney
A power of attorney is a legal document giving another person the legal right or powers to do certain things for you. What those powers are depends on the terms of the document. A power of attorney may be very broad or very limited and specific. All powers of attorney terminate upon the death of the maker, and may terminate when the maker (principal) becomes incapacitated (unable to make or communicate decisions). When the intent is to designate a back-up decision-maker in the event of incapacity, then a durable power of attorney should be used. Durable Powers of Attorney should be frequently updated because banks and other financial institutions may hesitate to honor a power of attorney that is more than a year old.
Health Care Documents
An advance directive is a document that specifies the type of medical and personal care you would want should you lose the ability to make and communicate your own decisions. Anyone over the age of 18 may execute an advance directive, and this document is legally binding in Texas. Your advance directive can specify who will make and communicate decisions for you, and it can set out the circumstances under which you would not like your life to be prolonged if, for example, you were in a coma with no reasonable chance of recovery.
A document that goes hand-in-hand with your advance directive is an authorization to your medical providers to allow specified individuals to access your medical information. Without this authorization, your doctor may refuse to communicate with your handpicked decision maker.
We understand the emotional struggles families face when considering a guardianship for their loved one who is struggling to act independently. The Criss & Rousseau Law Firm has a strong reputation for working with families to establish legal guardians and protect the best interests of elderly individuals, people dealing with mental illness, cognitive disabilities, and individuals who are physically debilitated.
Our experience can be applied to help you determine if a guardianship would be in your loved one’s best interests. The Criss & Rousseau Law Firm can help you begin the process of evaluating options available to ensure the right safeguards are in place for your loved one.
If you are loved one no longer has the mental capacity to act independently, you may want to consider establishing a legal guardian. Someone you trust could be appointed as you are loved one’s legal guardian to help manage his or her financial and personal affairs. This could provide you and your family with the peace of mind knowing you have a plan in place to protect your loved one’s best interests.
In Texas, there are two types of guardianships. A trusted individual or entity can be named as a guardian of the estate to manage your loved one’s financial interests. The other type of legal guardianship is known as guardian of the person. In this case, the person named would be responsible to manage your loved one’s personal affairs, which may include their educational, housing, or health care needs. Often, incapacitated individuals have minimal assets so a judge may decide a guardian over the estate is unnecessary. In situations where a guardian of the estate is necessary, often the same person can be named as a legal guardian to manage their personal and financial affairs.
The Process of Establishing a Guardianship
Establishing a legal guardianship can be a long and often emotionally charged time. Some families may disagree whether or not a guardianship is necessary. The Criss & Rousseau Law Firm will be by your side throughout this journey, while taking every measure possible to protect your loved one’s best interest. We understand that often the unknown can lead to anxiety about the legal process. We will keep you fully informed so you are never in the dark.
One of the first steps would be to have your loved one medically evaluated. Any medical analysis from your loved one’s doctor would also be taken into account when determining if a legal guardianship would be beneficial. If a legal guardian is determined to be necessary, we will assist you throughout the process of naming a guardian. Often a trusted family member or someone else close to the family is named. If qualified, that person will likely be responsible to handle your loved one’s financial and personal affairs.
Establishing a guardianship is often the last resort. Other proactive measures can be taken to protect your loved one’s well being, while helping him or her stay as independent as possible. Families with aging family members should consider establishing a durable power of attorney to protect their loved one’s financial and personal affairs. Advance planning is critically important. A power of attorney must be established before a person loses the capacity to name someone in this role.
Probate & Estate Administration
Probate and estate administration are the processes through which estate assets are transferred after death. Probate will be necessary if there are any assets in the name of the decedent that require a title transfer that cannot take place without court intervention. Probate can be “independent” or “dependent.” In an independent administration, the appointed independent executor manages assets, pays any debts, files required tax returns and various court documents, and distributes the estate assets. In a dependent administration, the probate judge must approve every detail of the estate administration.
Probate basically means establishing the validity of a Will the deceased may have had, determining the deceased’s “legal” heirs if there has been no estate planning, detailing the deceased’s probate estate, paying appropriate debts, and, distributing the deceased’s property to the people entitled to receive it. In many cases, this is a relatively straightforward process. However, in some cases, unforeseen issues or a lack of pre-planning may create unanticipated problems. Whatever the situation, the Criss & Rousseau Law Firm, can provide high quality legal counsel necessary to navigate the deceased’s family through this process.