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DISABILITY PLANNING GUIDE

By Glenn M. Karisch, Barnes & Karisch, P. C., Austin, Texas

This guide is intended to help Texas lawyers keep track of the various statutes affecting disability planning, including statutes amended in 1997. It is current through the 1997 legislative session. It is not intended for use by members of the general public, as many of the legal issues involved are complex.

This guide is provided free of charge by Glenn M. Karisch of Barnes & Karisch, P. C., Austin, Texas. Although the author believes that it is free of error, neither Glenn M. Karisch nor Barnes & Karisch, P. C., warrants its accuracy.

These materials are intended for use by licensed Texas attorneys only. Use at your own risk. No attorney-client relationship is established. See "About This Site" for warranty and copyright information and for disclaimers about nonlawyers using this site.

 

Click here to download this guide in Wordperfect 5.1 format.

 

CONTENTS

  Summary of 1997 Legislative Changes Affecting Disability Planning  
  Table -- Statutory Disability Planning Forms (After 1997 Changes)  
  The full text of the disability planning statutes as amended by the 75thLegislature, including:  
  Chapter XII, Probate Code ( 481 -- 506) -- Durable Powers of Attorney  
  Chapter 135, Civil Practices and Remedies Code -- Durable Powers of Attorney for Health Care  
  Chapter 672, Health and Safety Code (Natural Death Act) -- Directives to Physicians  
  Sections 677A, 679, Probate Code -- Declarations of Guardian  
  Chapter 137, Civil Practices and Remedies Code -- Declarations for Mental Health Treatment  
  Chapter 674, Health and Safety Code -- Out-of-Hospital Do-Not-Resuscitate  


Appendices -- Statutory Disability Planning Forms (Reflecting 1997 Changes) View on the Web (html) Download in WordPerfect 5.1 Format
A -- Statutory Durable Power of Attorney Web WordPerfect
B -- Durable Power of Attorney for Health Care Web WordPerfect
C -- Directive to Physicians Web WordPerfect
D -- Declaration of Guardian for Minor Children Web WordPerfect
E -- Declaration of Guardian [for Self] Web WordPerfect
F -- Declaration for Mental Health Treatment Web WordPerfect

SUMMARY OF 1997 LEGISLATIVE CHANGES AFFECTING DISABILITY PLANNING

These three bills from the 75th Texas legislature affected disability planning:

1. SB 620 -- This was the durable power of attorney bill authored by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It made several changes to 1993's Durable Power of Attorney Act. The change which is most likely to affect estate planners is, in effect, a new statutory durable power of attorney form. The new form, for use on and after September 1, 1997:

Use of the statutory form remains optional. SB 620 also provides for the automatic revocation of the designation of a spouse as agent upon divorce, clarifies that oil and gas transactions are covered by "Real Property Transactions" and defines "retirement plans" to include IRAs, qualified plans, etc. SB 620 has been signed by Governor Bush and becomes law on September 1, 1997.

2. HB 880 -- HB 880 changed the witness requirements on directives to physicians. Under these changes:

These changes to the witnessing requirements necessitated a change to the statutory form of directive to physicians. The form remains optional, however -- nonstandard forms may be used.

HB 880 also made a change to the procedure for making a treatment decision for a person with no guardian. Under HB 880, the attending physician must now document and sign the treatment decision in the patient's medical record, and if the patient has no legal guardian or other relative available, a treatment decision must be witnessed by another physician who is not involved in the treatment of the patient.

The changes made by HB 880 take effect January 1, 1998.

3. SB 972 -- SB 972 adds new Chapter 137 to the Civil Practices and Remedies Code, permitting a person who is not incapacitated to declare how he or she wishes to be treated for mental illness if he or she later is adjudicated incapacitated by the probate court or in a "medication hearing" under Section 574.106 of the Health and Safety Code. A mental health declaration expires after three years, but it continues if the person is incapacitated at the end of the three-year period. This form permits the declarant to consent (or not consent) to the use of electroconvulsive treatment, specific psychoactive medications, and emergency mental health treatment.

SB 972 includes a mandatory statutory form. It seems unlikely that a declaration for mental health treatment will become a "standard" disability planning document, as the health care power, directive to physician, declaration of guardian and durable power of attorney have become. Rather, it seems likely that this new declaration will be used in cases where incapacity due to a specific condition is likely and the declarant can make informed decisions about how he or she wishes to be treated.

SB 972 becomes effective September 1, 1997.

Table -- Statutory Disability Planning Forms (After 1997 Changes)

  Durable Power of Attorney Health Care Power of Attorney Directive to Physicians Declaration of Guardian Out-of-Hospital DNR Orders Declarations of Mental Health Treatment
Old Statutory Reference Probate Code 481 -- 506 Chapter 135, Civil Practices and Remedies Code Chapter 672,

Health and Safety Code

Probate Code 677A, 679 Chapter 674, Health and Safety Code None
New Statutory Reference Same Same Same Same Same Chapter 137, Civil Practices and Remedies Code
Changes to statutory form Several substantive changes None Minor changes (witness requirements) None No statutory form (Texas Board of Health promulgates form) New form
Is Statutory Form Mandatory? No Yes No No Yes (board-approved form) Yes
Other statutory changes Yes No Yes No No Yes
Must Be Notarized? Yes No No Yes No No
Number of Witnesses Required none two two two two, plus the attending physician two
Duration Until death, revocation or appointment of guardian of estate Until revocation, and court may revoke it if guardian is appointed Until revocation Until revocation Until revocation 3rdAnniversary of signing or revocation (but continues in effect if declarant is incapacitated at end of 3 years)
Effect of Divorce After Signing Powers of former spouse as agent terminate, but third parties protected Power is revoked if former spouse is agent None Designation of spouse has no effect upon divorce None None
1997 Bills Making Changes SB 620 None HB 880 None None SB 972
Effective Date 9/1/97 n/a 1/1/98 n/a n/a 9/1/97

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Copyright 1997, 1998 by Glenn M. Karisch     Last Revised May 24, 1998