BE PREPARED!!

By | Estate Planning

“BE PREPARED!”   My brother was an Eagle Scout, and I heard that phrase many times. As an uber planner, I’m all over preparation.  But, even procrastinators need to plan for the future (like when you about to have a medical procedure or are ill or when there’s a world pandemic).

NEWS FLASH – having a plan gives us control and when we have control, we feel better.      A little preparation also helps our family and friends.   The “little preparation” I suggest is to have a Statutory Durable Power of Attorney, a Medical Power of Attorney, and a Directive to Physician.

I have personal experience with the benefits these documents provide because my mother signed these documents.  When she was no longer able to make decisions for herself, these documents made caring for my mother much easier and less stressful.

  1. Statutory Durable Power of Attorney is a written document in which you give someone the authority to conduct business on your behalf – banking, paying bills, dealing with health insurance, Social Security, Medicaid, and Medicare issues, etc….
  2. Health Care Power of Attorney is a written document, prepared by an attorney, in which you give a trusted person the authority to make medical decisions on your behalf.      The medical decisions this person makes cannot contradict your Directive to Physician.
  3. Directive to Physician  is a written document in which you decide whether to be put on life support in the event you become terminally ill.    This document is different from a DNR (Do Not Resuscitate Order).   A DNR is an instruction to health care providers not to do CPR if your breathing stops or if your heart stops beating.

What happens if you become incapacitated (i.e. unable to make decisions and/or to care for yourself) and you do not have these documents?   Most likely, a family member will have to hire an attorney and request that the Court appoint a guardian for you.   That process is very expensive and time consuming.

So, to quote Tony Rea – “Being prepared is about anticipating what comes next and getting ready for it.   If there is a barrier to the next step or some action that needs to happen, it’s you who has to make sure it does.”

 

WHERE THERE’S A WILL THERE’S A WAY

By | Estate Planning

Having a Will properly drafted by an attorney is one of the wisest investments you can make.   A life changing event (such as COVID-19, marriage, divorce, having children, etc….)  should trigger each of us to pull out our Will (if we have one) and look at it to make sure that the Will still reflects our desires and intentions.   If your Will needs to be revised or you don’t have Will, a life changing event should motivate you to set an appointment an attorney to discuss your Will.

Basically, a Will is a written document in which the testator (person signing the will) states to whom his or her property should pass upon death.   The Will should contain a provision for the appointment of an independent executor and alternate executor.   The executor is the person who handles the probate of your estate.   The Will can also establish a trust and name a guardian and alternate guardian for minor children.    It is important that the Will is correctly written and properly signed – hence the need for an attorney.

Probate occurs after a person dies.    Essentially, probate is the process by which the deceased person’s property is transferred to the people named in the will.    In Texas, provided the Will is properly drafted and executed, probate is a fairly streamlined process.    On the other hand, if a person dies and does not have a will, administering the estate is often complicated, time consuming, and very costly.

Bank accounts, IRA’s, investment accounts, life insurance, and any account for which there is a beneficiary do not pass through the will and are not a part of the probate.   Instead, these kinds of property go to the named beneficiary.

A person can also simplify things by doing the following:

  • By making sure that all bank accounts have right of survivorship provisions,
  • By authorizing another person to have access to all safety deposit boxes,
  • By providing the executor and alternate executor with a copy of the Will,
  • By providing the executor and alternate executor with a list of all accounts, life insurance policies, stocks, debts, and
  • By providing the executor and alternate executor with a description of and the location of all big-ticket items property.

The process to obtain a will is simple and does not require a face to face meeting with an attorney.   Although strategizing with an attorney about your Will can take place in person, those meetings can also be accomplished by phone calls or zoom.    After you provide your attorney with the necessary information, the attorney drafts the will and then sends it to you for you to read.   Once the will is in final form and each of your questions have been answered, you sign the will.

By taking the time now to make these plans, you will save those you love lots of money, time, and stress in the future.

RESIDENTIAL EVICTIONS AND COVID19 – UPDATED

By | Construction & Real Estate News|Firm News, Domestic Violence, Real Estate Law

On April 6, 2020, the Supreme Court of Texas extended the deadlines regarding residential evictions.

Under the “old normal,” when a tenant violated a residential lease agreement, the landlord could evict the tenant by filing a lawsuit, serving the tenant with notice of the lawsuit, and having a hearing.

The Ninth Emergency Order applies only to residential tenants.  Trials, hearings, or other proceedings cannot be conducted until after April 30, 2020 and a writ of possession may not be executed until after May 7, 2020.    This means that a court cannot have an eviction trial until after April 30, 2020 and landlord cannot regain possession of the property until after May 7, 2020.

Before April 30, 2020, a landlord can file a residential eviction lawsuit at any time; however, the landlord cannot serve a tenant with notice of the eviction until after April 30, 2020.

The Supreme Court carved out an important exception –a “Sworn Complaint for Forcible Detainer for Threat to Person or for Cause.”  If the landlord believes that a tenant is being threatened or a crime is being committed, the landlord can file a Sworn Complaint for Forcible Detainer for Threat to Person or for Cause.    That complaint must be sworn to or have an affidavit attached to it which describes:

          1) that the actions of the tenant or the tenant’s household members or guests, pose an imminent threat of physical harm to the plaintiff, the plaintiff’s employees or other tenants, or

          2) criminal activity.   

The threats and/or criminal activity must be within the personal knowledge of the person signing the statement.   The complaint and/or affidavit must be signed in front of a notary public.    If the landlord does not have personal knowledge, the landlord can still file the complaint and attach an affidavit signed by the person with personal knowledge to the complaint.   For instance, if the landlord had rented to a husband and wife and the wife physically assaulted the wife.    The landlord could file the complaint and attach the affidavit of the wife to the complaint.   If the court determines that the complaint satisfies this requirement, the court can proceed and have a hearing.

The rationale behind the Supreme Court’s order is obvious – during this time when many people are not able to work, tenants should not fear being kicked out of their homes.   At this same time, landlords can still file eviction lawsuits and tenants who are threatened can still be protected.

 

Anxiety & Fear – Marcy Freeman, a Family Law Attorney, Teaches us How to Process Both in the Wake of COVID-19

By | Unsolicited Opinions

As I write this blog, fear is the prevailing emotion of our country, and most everyone I know is experiencing anxiety.   We are being bombarded with bad news about our health and our economy.   How are we supposed to live in these times of uncertainty, where are we going to buy toilet paper, what is going to happen to my retirement account?  BUT – if we take a minute to really think about our fear and anxiety rationally, we can move forward and feel a lot better.

Fear and anxiety are different.    According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) “Fear is the emotional response to real or perceived imminent threat, whereas anxiety is anticipation of future threat.”

We should remember fear is an emotion which alerts us to a “a real or perceived danger.”  Our fight, flight, or freeze response evolved as a survival mechanism and is an instantaneous physiological reaction in response to a perceived harmful event, attack, or threat to survival.  Throughout history, fear has helped us to avoid danger and to stay alive.    So, some fear is good because it protects us while irrational fear is not good.   How do we determine whether fear is good or bad?

I say we stare fear in the face so that we can get a good look at it and assess the “perceived danger.” Our evaluation of the perceived danger educates us about that danger – is it real, how close is it, etc…      After I know the danger, I can make a plan and move forward.

Anxiety is an insidious little creature because it feeds on itself.  Anxiety is the result of the way that I deal with my fears about the future.   In my head, I create and replay “stories” about what might happen in the future in an attempt to make sense of things and to control what might happen.   The truth is that my stories don’t solve my problems because the stories are based upon something that may or may not happen in the future.   When I repeatedly replay the story, the story becomes a never ending loop of anxiety.

How can I stop the loop?   Fortunately, I can change my thought processes.  According to studies, meditation (an ancient practice which brings us back to the present moment) can help with feelings of anxiety, anger, and depression and can even change your brain! https://www.forbes.com/sites/alicegwalton/2015/02/09/7-ways-meditation-can-actually-change-the-brain/#50d655aa1465

The present moment is what life is all about.    I can only control what is happening right now.     If I am busy thinking about the future (or the past) I am going to miss what is happening right now – a beautiful smile, the sunset, a fragrant smell.    I am going to miss my life.   I am not going to allow Covid 19 prevent me from living in the present moment.   Life is too short!