Wanda Smith Law, PLLC

08/05/2019

08/02/2018

I'll be speaking today at the Probate Section of the Ft. Worth Bar Association. The topic is Forensic Genealogy: Tips and Techniques for Attorneys. Hope my attorney friends can make the luncheon at the Petroleum Club!

06/07/2018

An easy way to avoid guardianship...

In many cases a guardianship can be avoided in Texas by use of valid Power of Attorney documents. POAs are not expensive compared to the cost of establishing a guardianship, and once established a guardianship is subject to continued court oversight.

As long as the person granting the power (who is referred to as "the principal") is not legally incapacitated at the time they execute the POA, they can grant a wide variety of powers to their agent to act on their behalf if they become incapacitated, negating the need for a guardianship.

Every adult should have a both a Medical and a Durable (financial) Power of Attorney granting someone the power to make medical and financial decisions for them if they are unable to do so. People may become incapacitated by accident or illness at any age, so these documents should be in place as soon as you become an adult.

I have been called on occasion to rush to a hospital room or ICU to create or update someone's POA before emergency surgery, so it's best to have these documents in place before they are needed. I've also been called to a nursing home to visit a young father who had suffered a traumatic brain injury in an accident. He was in a persistent vegetative state and did not have POAs in place. His wife was unable to even access his insurance information to get his medical bills paid until a lengthy and expensive guardianship was established.

Some people wait too long and then call me to have a POA created for their elderly spouse or parent who is already exhibiting signs of dementia or Alzheimers. If there is any chance that someone might challenge the validity of a POA (such as conflicting wishes between a second spouse and children) then you'd want to be sure that the POA had been executed well before such diseases were apparent.

If you haven't looked at your POA documents for a few years you might want to review them to make sure the agent you named a decade ago is still the person you want to have power over your medical and financial decisions. If you've gotten married, divorced, had children, or someone has died or moved away, then you may need to update your documents.

And if you have never had a Medical and Durable Power of Attorney you might want to call an attorney to get these drafted so you're protected, and your family knows your wishes. POAs are typically created as part of a Will package, so may want to check into updating your legal documents if you've had changes in your family situation.

06/07/2018

On June 1, 2018, new legislation went into effect in Texas regarding guardianships. If you are the legal guardian of someone you must register with the Judicial Branch Certification Commission (JBCC) no later than the date of the next annual report or when annual accounting is due to the court. More information is available here: http://www.txcourts.gov/jbcc/register-a-guardianship/

If you have a pending application but have not yet been appointed, you must register with the JBCC, complete one hour of guardianship training and submit a criminal history background check to the court no later than 10 days before the hearing for the appointment (or before August 31, 2018, whichever date is later.) The hour of online training is free and you'll need to submit your certificate of completion to the court prior to the hearing. Your attorney can assist you with registration and filing the proper forms with the court before your hearing. More information regarding the Texas Guardianship Training is available here: https://guardianship-txcourts.talentlms.com/catalog/info/id:144

For more information regarding the criminal history background check see here: http://www.txcourts.gov/jbcc/register-a-guardianship/criminal-history-information/

All future guardians must undergo a criminal history background check before appointment. If the proposed ward's estate is $50,000 or less only a name and date of birth background check will be performed. If the proposed ward's estate is over $50,000 or if the applicant is from out of state, then a digital fingerprint background check is required. You must be registered with JBCC before they will provide instructions regarding the fingerprinting appointment so be sure to start this process well before any scheduled hearing.

Persons with a criminal history involving crimes against persons (assault and battery), crimes involving dishonesty, fraud, misrepresentation or obstruction of justice, crimes involving tampering with government documents, crimes against property (theft or burglary), crimes involving drugs or alcohol and crimes involving deliberate violence, as well as other types of crimes, may cause someone to be ineligible to be appointed as a guardian. If you have a pending guardianship application or plan to file a guardianship application be sure to confer with your attorney regarding the new requirements.

Attorneys, Certified Guardians, and Corporate Fiduciaries (a bank or other financial institution) are exempt from the training and the criminal history background check.

I just viewed a course named 'Texas Guardianship Training'

05/16/2018

People often ask me how often they should update their Will. There's not a set answer to this, but whenever there is a major life change, such as marriage, divorce, or birth or death of a family member, you should review your Will to ensure it still reflects your wishes. Even when nothing major has changed in your life, it is a good idea to contact your attorney every 5 years or so and ask if there have been any major changes in the law that might affect how your assets can be best distributed. Changes in tax law, trusts, gift and estate taxes may mean your Will needs to be updated.

05/07/2018

An elderly client who is terminally ill recently asked me to prepare an Out-of-Hospital Do Not Resuscitate (OOH DNR) form. Many people may not be aware that Emergency Medical personnel and other health care professionals are required to resuscitate you unless you have this form executed. You do not need an attorney to help you complete this form, but it does require two witnesses and a notary so sometimes it is more convenient to have your attorney prepare this form at the same time other legal documents will be executed. The Texas form and instructions are available here on the Texas Health and Human Services website: https://www.dshs.texas.gov/emstraumasystems/dnr.shtm
If you are completing the form for yourself, sign Section A, along with the date and print your name in front of your two witnesses and a notary. Your witnesses must sign and date the section beginning “TWO WITNESSES” where the notary will also sign and place their seal. It is very important that all FOUR of you (you, the two witnesses, and the notary) sign a second time at the very bottom of the page for the form to be properly executed. Other people such as a legal guardian, agent under a Power of Attorney, certain qualified relatives or a physician can complete this form by completing the appropriate sections.
It is important to have this document executed well before it is needed. If is often believed that this document can be signed in a nursing home or rehab hospital where employees can be called into the room to serve as witnesses. However, Texas Health and Safety Code Sec. 166.003 requires that at least one of the two witnesses must not be the same person who is the agent appointed under a Medical Power of Attorney, not be related by blood or marriage, not be a person entitled to any part of the declarant’s estate, not be an attending physician or employee of a health care facility where the declarant is a patient, and cannot be a person who has a claim against the declarant’s estate. In other words, at least one of the witnesses can be a friend or neighbor, or it can executed in an attorney’s office where witnesses and a notary are available.
After ex*****on of the form, you can order a vinyl or metal bracelet to wear which will be honored by medical personnel in lieu of having the actual form with you. The website mentioned above has a list of approved providers of these type of bracelets. If you do not order a bracelet you should ensure a copy of the form is prominently displayed in the home or bedside to alert emergency medical personnel that an OOH DNR has been executed.

05/05/2018

Did you know Texas now has an easy way to establish right of survivorship on your motor vehicle? This will convey title to your vehicle to your heirs outside of the probate process.

Simply complete Form VTR-122 from the Texas Department of Motor Vehicles available here: https://www.txdmv.gov/forms

If you are married and not leaving the vehicle to your spouse, then be sure to complete Section C, and have your spouse sign the bottom of page 1.

After completing the form take it to your county tax assessor's office so a copy is placed on the record. Be sure to keep the original copy with your other important records.

After death, the heirs simply complete Form 130-U for a new title and submit it along with the VTR-122 and a copy of the death certificate.