Tiffany Dowell Lashmet

Estate planning is not a topic most people are excited to consider.  However, having certain key documents in place can help ensure that one’s wishes are followed and help ease the legal burden on family members left behind. Many states, like Texas, for example, offer statutory forms for certain documents such as powers of attorney and advanced directives, making it easy for residents to prepare and execute these documents.  

There are five key documents for everyone to have in place:

1. Will

A will is simply a document providing how certain assets will be handled upon a person’s death and often appoints an executor to act on behalf of the estate.  The specific rules for executing a will differ by state and may require signatures before witnesses or a notary on the particular state law.  It is highly recommended to have an attorney help draft a will, particularly if an estate includes minor children, adults with special needs, or significant assets such as a farm or ranch.

2. Advanced Directive

An Advanced Directive is a document instructing a physician of the patient’s wishes regarding life-sustaining treatment in the event they are diagnosed as terminal or irreversible.  This document clarifies how the patient wants to be treated in this scenario and is designed to avoid devastating family conflicts when wishes are unknown. 

3. Medical Power of Attorney 

A Medical Power of Attorney allows the person executing the document to appoint an agent to make medical decisions on they behalf in the event the signor is incapacitated.  For example, if a patient is unconscious during a surgical procedure and a decision must be made, the medical power of attorney would allow the agent to make that decision legally.  

4. HIPAA Release

The “Healthcare Insurance Portability and Accountability Act” protects a person’s private healthcare information from disclosure.  Generally, this is a positive, but it can be if a person is incapacitated, and family members are unable to obtain information about the care or condition of their loved one.  A simple form can help alleviate this issue and ensure a selected representative can obtain medical information. 

5. Durable Power of Attorney

A power of attorney allows the signor to appoint an agent to act on their behalf to handle financial affairs.  The power of attorney may be general (meaning the POA becomes effective immediately upon signing) or springing (which means the POA is not effective until a future event or date–usually the signor being declared incapacitated by a doctor).  This document allows an appointed agent to do things like pay bills, manage bank accounts, and deal with real estate issues.

Lashmet, Tiffany. “Key Estate Planning Documents“. Southern Ag Today 2(35.5). August 26, 2022. Permalink

A judge on the United States District Court for the Western District of Texas has held that the “Use of Unmanned Aircraft” statute violates the First Amendment.  View Order here. The lawsuit, National Press Photographers Association v. McCraw, was filed by two media organizations and an individual journalist who claimed that provisions in this 2013 Texas statute violate their First Amendment rights.  In particular, the plaintiffs challenged two statutory concepts.  The first prohibits a drone from capturing an image of an individual or privately owned real property with the intent to conduct surveillance.  Numerous exceptions exist for a variety of uses including real estate agents, aerial mapping, and professional or scholarly research.  Second, they challenge a provision essentially prohibiting operating a drone over a correctional facility, detention facility, critical infrastructure facility, or sports venue.  Again, there are exceptions to the statute, allowing drones to fly over these facilities for “commercial purposes.”  Neither provision contains a newsgathering exception.  

Judge Pitman found the statute to violate the First Amendment as it is not narrowly tailored to serve a compelling state interest and is also unconstitutionally vague. To read more about this decision, click here.

Several other states have drone statutes as well, including several Southern states.  To view a compilation of those state laws from the National Agricultural Law Center, click here.

Lashmet, Tiffany. “Federal Judge Strikes Down Texas Drone Law as Unconstitutional“. Southern Ag Today 2(17.5). April 22, 2022. Permalink

For decades, there has been contentious debate surrounding the meaning of a seemingly simple phrase in the Clean Water Act (CWA), “waters of the United States.”  This phrase describes the scope of federal jurisdiction under the CWA but is not statutorily defined.  In 2015, the Obama administration promulgated the WOTUS Rule.  The Trump administration then replaced the WOTUS Rule with the Navigable Waters Protection Rule in 2020.  Both the Obama and Trump Rule faced a flurry of lawsuits filed across the nation. 

A recent decision from the United States      District Court for the District of Arizona has vacated the Trump administration’s Navigable Waters Protection Rule, meaning it is no longer in place.  This triggered the Environmental Protection Agency to announce that it has “halted implementation of the Navigable Waters Protection Rule.”  The EPA and US Army Corps of Engineers are currently interpreting “waters of the United States” consistent with the pre-2015 regulatory approach.  

The EPA Administrator, Michael Regan, has announced that the agency  promulgate its      definition, which will differ from both the Obama WOTUS Rule and Trump Navigable Protection Rule.  The EPA plans to release their proposed rule for comment in November.  To read more, click here. 

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Dowell Lashmet, Tiffany. “Update on Waters of the United States.” Southern Ag Today 1(44.5). October 29, 2021. Permalink