Texas Elder Legal Questions

If your mother has suddenly disappeared, you need to report her as a missing person to law enforcement in the city or county where you know she last resided.  Make sure you tell the authorities that you previously spoke with her daily, that she has dementia, and that those operating the assisted living facility where she last resided won;t communicate with you.... Read More

You should probably seek guardianship over your mother.  You will need a knowledgeable attorney in your area to assist you.  Once filed, the court will appoint an attorney to represent your mother's best interest while the you will be able to prove why you are the best to take care of her.... Read More

Either he is in assisted living or a nursing home, not both.  No one's Social Security is enough to pay for an assisted living facility or a nursing home.  Perhaps your fiance's father is in a nursing home being paid for by his Social Security and Medicaid. In any event, neither you nor your finance have visitation rights BUT his father has the right to have anyone he wants call or visit him, as long as those people have not abused, neglected or exploited him (and may do so again.) Facilities often confuse the point of contact (apparently the grandparents) as people with authority to exclude visitors. But that may not be the problem.  During the pandemic, nursing homes are allowed to exclude all but a designated "essential caregiver." Please clarify the situation.      ... Read More

No one can be discharged while a Medicaid application is pending.  Medicaid pays for up to three months' of nursing home care which occurred prior to the date of the application.  While someone is in a nursing home receiving Medicaid, they are allowed a $60/month personal needs allowance.  All their other income, including Social Security, goes to pay the nursing home with their fellow taxpayers picking up the rest:  Medicaid comes out of the general tax revenues. If your friend's mother returned home, either (1) she no longer needed a nursing home level of care or (2) she transitioned to Star Plus, a Medicaid waiver program providing 30-50 hours/week of homemaker and home health care.  The personal needs allowance for Star Plus is $2,382/month (2021).  This may well mean that she can keep all her Social Security retirement benefit, using it to pay for ordinary living expenses. If the son is disabled, he should apply for Social Security benefits.  Supplemental Security Income is $794/month (2021) less a 1/3rd deduction for food and shelter provided by someone else.  If he has medical evidence proving that he was disabled before age 22, he should apply for Childhood Disabiity Benefits based on his mother's work record.  Because she is now disabled, these will be the equivalent of half of her Social Security retirement benefits (topped up to $794/month if that would be less).  When she dies, these will be the equivalent of 75% of her Social Security retirement benefits. However, if the son was "never made to work his whole life" but is able to work, it is high time that he did so.  The world does not owe him a living.  His fellow taxpayers have no obligation to pay 100% of his mother's nursing home bill so that he can continue to live off her Social Security. Please note that if your friend's mother was in the hospital for at least three days before her nursing home stay, Medicare paid for the first 20 days without copay.  If she had been able to meet the copay, it would have paid for more.  Apparently she was not.  That is why application was made to Medicaid.      ... Read More

This may be inadvisable for at least two reasons.  First, if your FIL gifts the home now, he will incur a penalty period if he needs nursing home Medicaid or a Medicaid home health care waiver.  In 2021 that period will be determined by dividing the fair market value of the home by $212,50.  It is likely to last months.  Second, even if the Durable Power of Attorney has broad gifting powers, by gifting to herself you wife is violating her fiduciary duty under the Durable Power of Attorney.  A better approach may be to lease his home to help pay for the cost of the Assisted Living Facility's memory care unit.  If you would like to discuss this with an elder lawyer near year, see the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

While a Medical Power of Attorney is needed to speak for someone who cannot communicate and a Durable Power of Attorney is needed to access their funds to pay bills, the husband may need neither.  Section 313.004 of the Texas Health and Safety Code provides that if there is no Medical Power of Attorney, health care providers should turn to the next of kin, beginning with the spouse.  The husband and his wife may have a joint bank account which he can access to pay bills.... Read More

Any trust which under any circumstance could benefit you is countable in determining eligibility for Medicaid.  Unlike Medicare and Social Security, Medicaid does not have a trust fund paid into by paycheck deductions.  It is funded from the general tax revenues.  That is why the Medicaid eligibility rules are so strict:  it is unfair to let your neighbor set aside funds in a trust for his children and turn to you for support.... Read More

You can bring an action in Justice of the Peace court.  You do not need a lawyer.  But please keep in mind that after you win, you must pay to enforce the judgment and there may not be anything from which to recover.  She is unlikely to have any discoverable non-exempt assets. You may do better by sending her a demand letter certified mail, return receipt requested, informing her that if she does not return the money, you will report her to the state nurses' registry.  This would affect her employment prospects.... Read More

Your grandmother can sign a new Durable Power of Attorney, revoking the old one, and present that to her current agent and everywhere the daughter may have used the DPOA, such as the bank.  If she owns a home or other real estate, it should also be recorded in the county deed records. Texas has Remote Online Notaries so she should be able to sign a new Durable Power of Attorney even though she is in a nursing home.... Read More

Report this to Adult Protective Services. If the daughter was his agent under a Durable Power of Attorney, contact an elder lawyer about bringing this to the attention of the court.  You can find one with you on the website of the National Academy of Elder Law Attorneys (www.naela.org)  ... Read More

Not necessarily.  Notarization is by a notary, not by the two witnesses, and should be of an attached self-proving affidavit (though the witnesses and person making the will must sign both this and the Will.) You may not even need a Will.  If you expect to leave less than a home, household goods and personal possessions worth no more than $60,000 and other personal property, such as bank accounts, worth $75,000 and do not have a Will, your heirs can file an Affidavit of Small Estate.  This costs only maybe half as much as probating (proving) a Will and does not require a court appearance.... Read More

While there is a standard monthly income allowance and a standard property allowance for the spouse who does not enter the nursing home, how these rules are applied vary from state to state.  You might want to start by talking with an elder lawyer near you.  You can find one on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

If you sell your house to your son for less than fair market value and one of you needs Medicaid nursing home care within five years, either your son can give the home back (which may not happen:  he may have creditors who attach the home) or Medicaid will not pay for your care for the fair market value of the home divided by about $200.  For example, if you sold your home for $1 and the fair market value is $200,000, Medicaid will not pay for 1,000 days -- about three years. If you put your house in a trust, Medicaid will count it as an asset and you will have to sell it and spend down to $2,000 in assets before Medicaid will pay. In Texas, however, your house outside a trust will not count against you in determining nursing home Medicaid eligibility as long as you have an intent to return. To preserve your house from Medicaid Estate Recovery after both of you have passed, sign a Transfer on Death or a Lady Bird Deed before a notary and record it in the county deed records.  Title companies tend to prefer the former, which does not come with title insurance.  Elder lawyers often prefer the latter, which does come with title insurance and which can be signed by an agent under a Durable Power of Attorney.... Read More

Texas Medicaid does not count one car.  While she cannot gift it to you now without affecting her Medicaid eligibility, if you are not her only heir (and so could transfer title with a DMV affidavit of heirship after she passes), she might want to sign DMV forms transferring it to you on her death free of Medicaid Estate Recovery.... Read More