Estate Planning 101: The 5 Documents Everyone Needs

Leif Olson, Attorney at Law

Most of us will never need corporate bylaws, or formal employment contracts, or (except for speeding tickets and jury duty) to see the inside of a courtroom. But that doesn’t mean that none of us will ever need to speak with a lawyer. The opposite is true: All of us, eventually, are going to come to the ends of our lives; many of us will face a serious illness along the way. None of us know when that will be — but only a lawyer can help us ensure that, when that time comes, we have protected our families with the five legal documents that everyone should have.

  1. Will.  Most of us are familiar with wills: A will distributes the property that you own to the beneficiaries that you select. It appoints an agent, the executor, to distribute that property and manage it until it is distributed. Without a will, your property will not necessarily be distributed as you would like, but as the Texas Legislature has set out in the Estates Code. If you have minor children, your will is where you should name a guardian for them. The probate process in Texas is streamlined, enabling wills to be flexible and easily administered, without the large expense that has historically been the case.
  2. Durable Power of Attorney.  A power of attorney appoints someone to act on your behalf; a durable power of attorney appoints an agent to manage your property if you become unable to do so. (“Attorney” is just an English version of an old French word for “appointee.”) The appointment is durable because it is ongoing — it doesn’t expire if you lose the ability to manage your property. In fact, it is usually drafted so that it doesn’t take effect until you lose that ability. If something robs you of the ability to manage your property, a properly drafted durable power saves your family the time and expense of going to the probate court to have a guardianship established to manage your property.
  3. Medical Power of Attorney.  Just as the durable power of attorney appoints someone to manage your property, a medical power of attorney appoints someone to manage your person if you can’t do so anymore. This agent has the power to make medical decisions — for instance, on types of treatments, medications, surgeries, and hospitalizations — on your behalf. If you lose the ability to make medical decisions for yourself, a properly drafted medical power saves the time and expense of having a guardianship over your person created.
  4. Physician’s Directive.  A physician’s directive, also known as a living will, tells your doctors, family, and medical agent how to handle your medical care in certain situations. Though it can cover any conceivable medical situation, it is usually used to let others know whether you would like medical care withheld if you have a terminal or irreversible condition. This directive saves your family the heartache of having to guess at your end-of-life wishes and helps prevents the rancor that can develop if family members disagree on your wishes.
  5. HIPAA Release.  The Health Insurance Portability and Accountability Act prohibits hospitals and health-care professionals from disclosing your medical information and records. A HIPAA release instructs them to release that information to your family or medical agent. Without that release, they must make decisions about your health care without being able to see your medical history.