USA – TEXAS Law and Practice Contributed by: Perrin Clark and Meredith McIver, Ytterberg Deery Knull LLP
cally account to the court regarding the ward and their actions as guardian. 8.3 Planning for Incapacity In Texas, the following mechanisms exist when plan - ning for mental incapacity. • Revocable (“Living”) Trust Agreement, which pro - vides a mechanism for succession of control with respect to assets that have been contributed to the trust prior to incapacity (or that may be contributed to the trust after incapacity – eg, through the use of a Statutory Durable Power of Attorney, discussed below). • Statutory Durable Power of Attorney, which may authorise an agent to act on the principal’s behalf with respect to all matters other than medical mat - ters. • Medical Power of Attorney, which may authorise an agent to act on the principal’s behalf with respect to medical matters. • HIPAA Authorisation, which authorises one or more persons to obtain health care information regarding the signatory. • Directive to Physicians and Family or Surrogates, which expresses the signatory’s wishes with respect to future medical decisions should they later be unable to express such wishes. • Designation of Guadian for Minor Children, which expresses the signatory’s wishes with respect to the future appointment of a guardian for the signa - tory’s minor children should the need arise. • Declaration of Guardian in the Event of Later Inca - pacity or Need, which expresses the signatory’s wishes with respect to the future appointment of a guardian for the signatory should the need arise. All these mechanisms are used commonly in prac - tice, often providing overlapping coverage to ensure an intended plan is realised despite later mental inca - pacity. 8.4 Elder Law Long-term care insurance has become more available and its use has gained in popularity over the past two decades as the post-World War II “baby boomer” generation entered retirement, and demographics in
the United States and Texas shifted towards an older population. See 8.1 Special Planning Mechanisms .
9. Planning for Non-Traditional Families 9.1 Children Adopted Children In Texas an adopted child is treated as a legal descend - ant of their adoptive parent or parents, meaning the adopted child and the adopted child’s descendants will inherit from and through the adoptive parent or parents in the same manner as a biological child. How - ever, in Texas the rights of an adopted child to inherit from their biological parents is not severed unless they are adopted as an adult, or the court by order specifically provides for such severance. Regardless, once a child is adopted, their biological parent(s) and the kindred of their biological parent(s) may not inherit from or through an adopted child. Out-of-Wedlock Children In Texas the mother-child relationship is established by a woman giving birth to a child; however, it can also be established by adjudication of maternity and by adoption. Contrastingly, the father-child relationship is commonly based on a presumption if the father is married to the mother at the time of the child’s birth, although this presumption may arise in other circum - stances too. A father-child relationship can also be established by other methods, including, without limi - tation, by adjudication of paternity, by adoption, and by acknowledgement of paternity. The Texas Family Code provides a specific process for the voluntary acknowledgement of paternity. Posthumously Conceived/Born Children Under the Texas Estates Code “no right of inherit - ance accrues to any person unless the person is born before, or is in gestation at, the time of the intestate’s death and survives for at least 120 hours. A person is: (1) considered to be in gestation at the time of the intestate’s death if insemination or implantation occurs at or before the time of the intestate’s death; and (2) presumed to be in gestation at the time of the intestate’s death if the person is born before the 301st day after the date of the intestate’s death”. Rights of inheritance can be changed by the terms of a will or
844 CHAMBERS.COM
Powered by FlippingBook