Texas Elder Legal Questions

The agent under a Durable Power of Attorney can sign and record a Lady Bird Deed transferring the home on your mother's death to the same people named under the Will and in the same proportions stated in the Will.  This preserves the home from Medicaid Estate Recovery.  Doing otherwise risks a report to Adult Protective Services, revocation of the Durable Power of Attorney and civil and ciminal liability.... Read More

In Texas a notary and witnesses who are not named in the Durable Power of Attorney and will not inherit should be present.  If your father cannot even make a "X", the notary can arrange for signature, as you put it, "by proxy" with a suitable notation on the Durable Power of Attorney and in the notary's book.... Read More

It appears that there was no written agreement.  She may have no place to live now but that does not mean she cannot find one.  In consideration of her long service, you might help her.  There is subsidized senior housing in addition to Section 8 Housing.  Contact your local Area Agency on Aging.... Read More

The best step is to see an elder lawyer and insert provisions which your father needs but which are not in the statutory durable power of attorney. In any event, your father's signature must be notarized for the DPOA to be effective and the DPOA must be recorded in the county deed records for it to be effective regarding real property.  ... Read More

Your mother, not your siblings, decide who should visit her.  This is true even if one of your siblings has become the court-appointed guardian of the person. (There is an exception if the proposed visitor has been abusive or exploitive.) If your mother is in a facility, discuss this with the administrator.  If the administrator does not respect your mother's right to choose who visits her in her own home (which the facility has become), you might consider calling a local elder law attorney.  You can use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)  ... Read More

You do not need to divorce.  The home is protected as is a spousal resource amount and a monthly income.  You might want to use the Find a Lawyer function of the website of the National Academy of Elder Law Attorneys to find an elder lawyer near you who can give advice based on the specifics of your situation.  www.naela.org... Read More

You can contact the police about theft and Adult Protective Services and Better Business Bureau about the scam.  Get your papers and pictures together and write a date by date description of what happened.  For advice on what further action you can take in your area, you may want to talk with an elder lawyer.  You can use the Find a Lawyer function of the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

If the transfer on death deed was properly drafted and executed and recorded in the deed records of the county clerk where the property is located, it should transfer title on death (see what you need to file) and outside the probate estate.  In Texas the Medicaid Estate Recovery Program can only recover from the probate estate. See a medical malpractice lawyer (and if the hip led to your mother's death, a lawyer who handles wrongful death suits), bringing all related documents.  A subrogation claim could be collected if there were something from which to collect.... Read More

Name your son your agent in a Medical Power of Attorney and a Durable [Financial] Power of Attorney so that he, acting on your behalf as your agent, can override your wife's wishes in agreeing to a hospital discharge plan.  Discuss these, an Advance Directive to Physicians and similar arrangements with an elder lawyer.  Many will come to you.  You can find one near you using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

The agent is required to report to the principal (your mother) and, if she demands it, provide a detailed accounting. In 2017 the Texas state legislature enabled concerned persons to challenge an agent.  Contact a local elder law attorney.  If your mother lacks legal capacity, you may want to consider filing an application for guardianship.  Appointment of a guardian of the estate ends the efficacy of a Durable POA.... Read More

An agent under a Durable [Financial] POA might have the power to change the beneficiary of a life insurance policy depending on what that POA states.  An agent under a Medical POA does not. An agent under a Durable [Financial] POA might have the power to appoint a successor agent depending on what the POA states.  An agent under a Medical POA does not.... Read More

If you are not your father's agent under either his Medical Power of Attorney or his Durable [Financial] Power of Attorney, it seems unlikely that you can override your stepmother's decisions.  When there is no Medical Power of Attorney, the Texas Health and Safety Code directs health care providers to turn first to the spouse for directions.  When there is no Durable [Financial] Power of Attorney, the Texas Estates Code allows a spouse to seek appointment as a Community Administrator, handling the couples' community property.  If your father has significant separate property (and he might, since this is apparently a second marriage) and lacks legal capacity, you can seek appointment as guardian of his estate.  The Texas Estates Code gives preference to the spouse but that preference can be overriden by a showing that she is either robbing him or not acting in his best interest.  To pursue this further, you might want to talk with a local member of the National Academy of Elder Law Attorneys (www.naela.org) or seek an Approved Guardianship Attorney on the State Bar of Texas website.  Please remember that many practice in counties other than that in which they are listed.... Read More

If someone is mentally disabled to the point of lacking legal capacity to make her own financial decisions, she also lacks legal capacity to grant a Durable [Financial] Power of Attorney.  Her estate (assets) will need to be placed under a guardianship.  Search for an Approved Guardianship Attorney on the State Bar of Texas website and consult one in your area.  Keep in mind that many practice in counties near the one in which they are listed.... Read More

Please show the Power of Attorney to a local elder law attorney.  You can find one using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org). Depending on the circumstances, you may be able to either (1) sell the home as your sister-in-law's agent under a Durable Power of Attorney or (2) check the "intent to return" box on a Medicaid application and transfer it to her granddaughter on her death by signing and recording a "Lady Bird Deed."  ... Read More

If your mother's dementia is advanced, she likely lacks legal capacity to grant either a Durable [Financial] Power of Attorney or a Medical Power of Attorney.  Search "Approved Guardianship Attorneys" on the State Bar of Texas Find a Lawyer website and talk to one (or more) in your area.  You will need to file for guardianship or her person and possibly of her estate.  For this you will need a Physician's Certificate of Medical Examination (PCME).  You can download the form from the webstite of the Travis County Probate Court.  Please note that while guardianship will allow you to consent to medical treatment, including psychiatric treatment, it will not allow you to involuntarily commit your mother.  For this there must be a mental health commitment.... Read More