More and more children are managing their parents’ finances without a trust, power of attorney, or guardianship in place. Usually, one of the parents has added one of their children to their bank account to allow them to pay their bills. Although this arrangement is convenient, it is often only a temporary solution and is usually inadequate to address all of the financial matters that arise. Moreover, many people do not understand the legal consequences of the account agreement; specifically the difference between the “power of withdrawal” and “ownership” of an account. Once the parent’s mental capacity to execute a power of attorney or trust becomes an issue, then a guardianship will mostly likely have to be created to adequately address all of the parent’s financial matters.
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In Texas, the testator (the person making a will) has the power to designate his or her executor to be an “independent executor”. Proper use of the term “independent” to describe the executor in the will means that the independent executor may, after the will has been admitted to probate and Letters Testamentary have been issued to the independent executor, take virtually all estate related action free of the need for any hearings or approval by a Probate Court. Unfortunately, some executors take advantage of this far reaching freedom to abuse their power(s) as an executor (an executor is also a fiduciary). The Texas Probate Code allows a court, after a hearing, to remove the person designated as the independent executor of the estate when any of the following grounds have been proved to the presiding judge:
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What does it mean to be of “sound mind”?
The requirement of “sound mind” is not specified in the Texas Probate Code. Instead, Texas Courts have determined that the “sound mind” requirement with regard to whether a person has “testamentary capacity” is as follows: The Testator (the person making a will) has sufficient mental ability, at the time of the execution of the will if he or she:
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Question: I am out of state and the last of my parents to die recently died in Dallas. One of my sisters is named as the executor of my mother’s estate. I am uncertain as to whether I will be treated fairly as I am not sure she can be trusted. What can be done to protect my interests short of starting a war?
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The Medical Power of Attorney and Directive to Physicians and Family or Surrogates are used to plan for situations when a patient can no longer speak for him/her self.
A Medical Power of Attorney (formerly a Health Care Power of Attorney) lets you appoint someone you trust to make decisions about your medical care if you cannot make those decisions yourself. The statutory form for a Medical Power of Attorney is set out in §166.164 of the Health and Safety Code and is a mandatory, not permissive form, as is the accompanying disclosure statement. The purpose of the disclosure statement is to provide information and understanding concerning the nature of the Medical Power of Attorney. Section 166.162 of the Health and Safety code states that a Medical Power of Attorney is not effective unless the principal, before executing the Medical Power of Attorney, signs a statement that the principal has received a disclosure statement and has read and understood its contents.
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