End of Life Documents

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A last will and testament is a legal document that communicates a person's final wishes pertaining to

possessions and dependents. A person's last will and testament outlines what to do with possessions,

whether the deceased will leave them to another person, a group or donate them to charity, and what

happens to other things he or she is responsible for, such as custody of dependents, and management

of accounts and interests.

A person writes a will while he or she is alive, and its instructions are carried out once the individual

dies. The will names a still-living person as the executor of the estate, and that person is responsible for

administering the estate. The probate court usually supervises the executor to ensure that he or she

carries out the wishes specified in the will.

A will and last testament forms the foundation of an estate plan and is the key instrument used to

ensure that the estate is settled in the manner desired. While there can be more to an estate plan than

just a will, it is the presiding document the probate court uses to guide the process of settling an estate.

Any assets not already designated by a beneficiary, such as a life insurance policy or a qualified

retirement plan, are not included as probate assets and pass directly to the beneficiaries.

A Living Will is also called a Health Care Directive or a Medical Directive. It is a document used to

indicate your medical wishes in the event you are incapacitated or cannot consent to your health care

treatment. 

A Medical Power of Attorney is different than a Living Will. A Medical Power of Attorney is a document

that appoints someone to make medical decisions on your behalf. A Medical Power of Attorney is also

called a Health Care Proxy.

A Living Will is important because it relieves family members the burden of making medical decisions in

difficult or compelling situations. Creating a Living Will gives you control of your medical wishes. Also, it

allows you to discuss your treatment wishes with someone you trust before any unforeseen medical

circumstances so that they can make healthcare decisions in your best interests.

A Living Will becomes effective and binding once you sign the document. It comes into use when you

have been found to be incapable of making your own medical decisions. This is typically when you are

incapacitated, in a coma, or in a vegetative state.

You can change a Living Will, but must first destroy the current one, notify your health care representative or hospital of the changes, and create a distribute a new Living Will to the person or

persons names as your representatives.

A Power of Attorney allows you to name an agent who can make decisions on your behalf. The agent

can be an individual or a corporate entity such as a bank or trust company.

There are two general types of Power’s of Attorney; Durable and General. In either case, a Power of

Attorney is a document that permits an agent to “step into the shoes” of the principal and act for and on

behalf of that principal in making decisions.

A General Power of Attorney grants wide legal authority to act on a person’s behalf and is designed to

provide your agent with broad and sweeping powers that don’t require you to predict every possible

legal scenario in advance. A General Power of Attorney ends the moment you become incapacitated. A

General Power of Attorney is suitable for many circumstances but IS NOT appropriate for end-of-life

decisions because of it’s lack of durability under duress.

A Durable Power of Attorney is a document that states an agent’s authority continues to apply if you

become incapacitated. There is no automatic deadline by which these powers expire. A Durable Power

of Attorney remains in force until the principal dies or the Durable Power of Attorney is revoked, in

writing.

Your medical records are not for public eyes. However, in certain circumstances it is critical to permit

trusted individuals to access your medical records to assist in making intelligent and informed decisions

regarding your health care.

HIPAA stands for Health Insurance Portability and Accountability Act (1996) and ensures privacy of

medical records. A HIPAA release allows the sharing of specific health information with a named

individual such as a doctor or an entity such as a hospital. A HIPPA Release is not a general release of

information. Your whole medical background IS NOT revealed unless absolutely necessary. The

document requesting medical information must describe the information sought from your medical

records. The medical release uses a standard of information “minimally necessary,” to make the specific

medical decision or the intended purpose of treatment.

It should be noted that is some cases there are exceptions to the “minimum necessary” release of

information. You can see this list of exceptions at www.privacyrights.org .

A Declaration for Children is a document that sets out your wishes for who would raise your minor children. 

A Medical Power of Attorney also called a Health Care Power of Attorney or Durable Power of Attorney for Health Care, is a legal document that authorizes someone you trust (called an agent, attorney-in-fact, or surrogate) to make medical decisions on your behalf. The agent only has this authority if it is determined by your doctor that you are incapable of making such decisions, or you are unable to communicate your wishes, if you’re in  coma, for example.

A Medical Power of Attorney is different from a Living Will.  A Living Will expresses your wishes regarding medical treatment in very specific situations. It is more limited than a health care power of attorney. A Living Will does not appoint anyone to make decisions for you, and only applies if you are in a terminal condition, or in a permanent unconscious condition. If you are temporarily incapacitated but are expected to recover from an illness or injury, a Living Will does not come into play and does not allow someone to make treatment decisions for you. Only a Medical Power of Attorney would help in this situation.

A Medical Power of Attorney and a Living Will are only useful if your health care providers know they exist. Your agent should have the original, and your regular doctor should be provided with copies to keep in your medical records file. If you are planning to enter a hospital, you will probably be asked prior to admission to provide the hospital with copies of your documents. 

However, in an emergency the hospital probably won’t be aware of your documents until your agent is contacted and produces them upon arriving at the hospital. In this case your agent should only use the Medical Power of Attorney at first. Only if someone questions whether your agent is acting according to your wishes would the living will be produced to support the decisions being made.

In the event, you want to donate your body to an educational institution. Pleae note, these arrangements must be made with the institution receiveing your gift PRIOR to your death. 

Legal guardianship is assigned when a health-care professional determines a person lacks the capacity to make rational and intelligent decisions on their own.  The individual may lack capacity for a number of reasons such as being in a coma, suffering injury-related brain damage, or the individual is under 18 years old and is without parents or guardians to make legal, health-care, and financial decisions for them.

A guardian is usually a family member, but it may be a friend, or a neutral and detached third party if other persons are unavailable or unqualified. In some cases, a power of attorney is preferred to guardianship.  However, if court supervision is needed, guardianship may be more appropriate. 

Guardianship also gives the guardian court-ordered authority that third parties, such as banks, must recognize. Third parties are not required to allow an agent with power of attorney to conduct business on behalf of the principal unless specifically instructed to do so.

Mentioning how you want your remains treated after death is difficult.  But, without doing so leaves your loved ones uncertain about your wishes while also grieving your loss.

(1) Know what you want.  Do you feel strongly about picking the flowers, songs, and people to speak at your service? Do you want your ashes scattered in a particular location? Do you want minimal fuss to be made at all?  If you are cremated, ensure that your wishes are memorialized.  For example, the Texas Health and Safety Code states that the remains of a person who passes away without a will must be interred, without any further options. This quirk in the law underscores the importance of planning ahead.

Those concerned about environmental impact may wish to avoid embalming, as each body typically requires three to four gallons of chemicals, which can then leak into the soil. Options for a green burial range from burial of the body in a simple shroud to cremation with ashes placed into a biodegradable urn, which is subsequently buried. These choices are not available at every cemetery in Texas, which requires some proactive planning if you feel strongly about a certain method. 

For those who wish to donate their body to a medical school, it is imperative to plan ahead. Each school has its own preferred procedures, and many will assist patients and family members with the process. Additionally, not all bodies will be acceptable for study, so developing a backup plan is critical.

(2) Make sure your loved ones know your wishes. The most comprehensive and specific plan will do no good if no one knows about it. The best way to make sure that your wishes are respected is by drafting a will or a standalone declaration. This is especially important if your loved ones do not share your wishes.

(3) Consider setting aside money or pre-paying for your services to save your family and loved ones expense while they are grieving. The probate process may take a matter of months to transfer the title ofassets. During that time, your final expenses will likely need to be paid.