Texas Elder Law & Medicaid Planning

Texas Elder Law & Medicaid Planning

In addition to the protections enjoyed by all Texan citizens, the state law provides special rights and protections for elderly individuals, including anyone 60 and over. Melissa Donovan is a Certified Elder Law Attorney and the Director of Elder Law and Special Needs Planning at Texas Trust Law. A frequent speaker at professional conferences for advisors on legal issues related to special needs planning, Medicaid, Medicare, and long-term care planning, Melissa focuses her practice on estate planning, special needs planning and Elder Law.

Texas law provides additional rights for citizens aged 60 and over. What are those rights and why were they introduced?

Here in Texas, there are many benefits accessible to individuals over 60. These include additional property tax exemptions, discounts on utility bills, reduced vehicle registration costs, help with prescription drug costs, rides to doctor visits and meal delivery. Here in Texas, we have 28 local Area Agencies on Aging which provide assistance and counselling for individuals over the age of 65 and their families on locating and accessing these community services. They also advise seniors on in-home support services, care coordination, and respite services. These area agencies are invaluable to the community.

Further, Section 102.003 of the TX Human Resources Code lays out additional protection for seniors. This includes rights to dignity & respect, the right to designate Guardians and to be free from abuse. All of this goes to the protection of a statistically vulnerable population and the general assertion that regardless of age or potential disability, as much as is reasonable, we all have the right to privacy and self-determination. It is quite common that in trying to help our elderly parents, relatives and friends, we tend to overtake their wishes in doing what we feel is best for them. It is important for care-takers and family to understand that our elderly loved ones have the right to make their own decisions, even if we do disagree with them. In our roles as caretakers and personal representatives, it is important that we are always openly communicating with the person we are helping, including them in decision making, and not keeping information from them as much as it is possible to do so. As I tell many clients, your job as a Medical Power of Attorney, is not to do what you would do for yourself, but to do what the principal would generally choose for himself or herself. These additional protections guide personal representatives and family in how we should be assisting seniors.

What does elder law planning cover and what are the benefits of elder law planning? 

Elder Law encompasses many things, including general estate planning, incapacity and long-term care planning, assistance with government benefits such as Medicaid and Social Security, and issues of elder abuse and exploitation.

What does an elder law attorney do and how do they assist senior citizens?

My job as a Certified Elder Law Attorney is, at its essence, helping people with all matters relating to aging, retirement, incapacity, and death. For many attorneys, like myself, this often times starts with comprehensive estate planning that takes into account issues like long-term care and government benefits including Social Security, Medicare, and Medicaid. This extends to helping clients obtain benefits they are qualified for, not only Medicaid, but also benefits available through the Veterans Administration, and those additional services as we previously discussed. For example, a lot of people are unaware of extra benefits like additional homestead tax protections. I often find myself telling clients that as attorneys in Texas, our license reads “attorney and counselor at law,” and in working as an elder law attorney I find that many times I am truly leaning into more of that counselor role, acting very much so as a mediator in advising clients and their families through sometimes very difficult circumstances. Who should consider estate planning and why?

Every person over the age of 18 really should have some type of estate plan in place. I understand that might sound like a lot to someone who is maybe 19 or 20 years old. The term “estate planning” seems more daunting than it should. If we think about it, really an estate plan is making sure you’ve got something in place so that the people you trust can make decisions for you if you’re unable to do so, making sure they have some reasonable guidance on what you would want if you were incapacitated, and being able to dictate where your property goes when you pass away. For example, someone just starting their adult life may just need simple package of Medical Powers of Attorney and Financial Powers of Attorney, HIPAA authorizations, etc… Whereas for more established individuals and families, an estate plan might include a more complex Will, living trust, or more advanced planning techniques like asset protection or estate tax planning tools.

What are the ‘must-have’ estate planning documents in Texas?

At a base level, every person in Texas should have a Statutory Durable Power of Attorney, Medical Power of Attorney, Directive to Physicians, HIPAA Authorization, and a Last Will & Testament. This will ensure that if you are incapacitated, only the people you choose can help manage your assets and make medical decisions for you. Further, you can make sure that when you pass away your family has the necessary instructions and designations to be able to distribute your property as you wish, not as the legislature has dictated.

What are the top estate planning mistakes people make?

There are several mistakes I see time and again with clients. Some common mistakes I see are not considering how important the incapacity side of an estate plan is, not incorporating provisions regarding long-term care or proper provisions for loved ones who have special needs, and, most importantly, not doing any planning at all. Too many times, attorneys have to be the bearer of bad news to already grieving clients. Being a community property state, many people still hold common misconceptions about how we own things as married couples. No grieving spouse wants to visit the attorney after a spouse has passed, only to be told that yes you do have to probate his or her will, or worse, go through an intestacy process to transfer assets. The biggest hardships are oftentimes with blended families, where it is so important that spouses have a solid estate plan in place. No one wants to find out after a spouse has passed away that the house the couple had shared for maybe 30 years does not fully belong to the survivor. In Texas, if you die without a Will and you had a blended family, the deceased spouse’s share of the home, generally half the value, goes to the deceased’s children, not the surviving spouse. Having a proper plan in place, whether that be a Will or a Revocable Living Trust, can prevent that.

For many people, a big concern is the possibility of running out of money. As we age past 65, the likelihood of needing some form of skilled nursing care only increases. With average costs for semi-private rooms running upwards of $6,000/month, it can be daunting for most people to consider how that would be covered. This is where Medicaid planning can be really helpful. I find that a lot of people don’t realize the benefits that may be accessible, many because they’ve never even considered it. That extends to Veterans Benefits as well. There are many programs available through the VA that I consistently find that veterans have never been told of. A prime example of this is the VA Pension program, which provides additional financial assistance for war-time veterans who have medical expenses they may have a hard time covering. That program could potentially give a veteran and his spouse up to $2,600 or more, depending on the need and qualification. These are incredibly helpful benefits that, unfortunately, I find far too many of our service men and women are not aware of.

These conversations are so valuable for us as attorneys to have with our clients. Our job as elder law attorneys is so much about guiding our clients and helping people find the tools for them to live out their later years, as much is possible, in the manner they would like. When clients come in to talk about how they “need a Will” I feel it is our responsibility as elder law attorneys to walk through these ideas with them. What are their goals, how does the family get along, what health concerns may they have? The more we know about our clients, their family, and their future wishes and concerns, the more we can help them. As I said, so much of what I view my job as being, is a counselor, someone who can help my clients to have peace of mind knowing they have walked through as many issues as we can to help solve future problems before they even arise. And if we can’t prevent something from happening in the future, at least we can help set up a plan so our clients and their families can work through that problem as easily as possible.

What happens if someone does not have a medical power of attorney or durable power of attorney and he or she becomes incapacitated?

This can depend greatly on the situation and what needs to be done. Most states, Texas included, do have laws in place dictating who can make medical decisions for a patient if there were ever an emergency and the injured party did not have any powers of attorney in place. Section 313.004 of the Texas Health and Safety Code gives us the order of priority, for who can make decisions in the absence of a power of attorney: 1) Your spouse; 2) An adult child, with the waiver and consent of all other qualified adult children; 3) The majority of your children; 4) Your parents; and then 5) an individual clearly identified to act on your behalf before you became incapacitated, your nearest living relative, or a member of the clergy. In the worst case scenarios, for example, if the family is in disagreement over treatment or what to do, you can end up in Guardianship proceedings where the Court has to name a formal Guardian of the Person to act on the incapacitated person’s behalf.

Management of finances is a bit more complicated. Generally speaking, if there is no durable (financial) power of attorney in place, someone will have to be appointed guardian to access and manage any real property and financial assets that don’t have a co-owner or signatory already named. This is not a process any family wants to have to go through as most people want to try and avoid court at all costs. This is why it is so important that people take the time to do this planning in advance.

Essentially, a lot of estate planning comes down to control over your future. Yes, the state may have laws in place that allow people to make these decisions, or processes for the court to designate someone who can, but wouldn’t you much rather be able to decide for yourself who the person managing your money, or deciding whether to allow specific medical treatment for you, would be? That is what incapacity planning is all about, having the ability to make choices for yourself in advance so the people you want get to enact your wishes.

Are a will and trust the same thing?

Wills and Trusts are two different planning paths. A Will, or Last Will & Testament, is a legal document where you get to say “when I die, this is who I want to get my property and how I want it distributed, and by who.” When someone dies with a Will, if there are any assets (a house, bank account, business, etc…) in the person’s name, the Executor of that Will must go through Probate. That Probate process varies greatly from state to state in time and expense.

A trust, on the other hand, is a way to avoid that need for Probate. When someone sets up a trust, they are creating an entity to manage property. Now there are many different types of trusts that are utilized for different reasons. But with general estate planning, the primary trust we are talking about is a Revocable Living Trust. Generally, with these trusts, the same person acts as the Grantor (person creating trust), Trustee (person managing the property), and beneficiary (person for whom the property is managed). The goal with these trusts is to make it easier for people to manage your property if you are incapacitated and when you pass away, and largely, to avoid Probate. An important thing to keep in mind in these Revocable Living trusts is that during the grantor’s lifetime, there is no asset protection, which is a common misconception in the general public.

About Texas Trust Law

Texas Trust Law was founded over 25 years ago by Brad Wiewel and has since become one of the leading estate planning law Firms in Texas. Located in Austin, Texas, Texas Trust Law, PLLC,  provides legal guidance in elder law, estate planning, special needs planning, asset protection planning, business planning, and retirement exit strategies.


Austin Office
1601 Rio Grande, Suite 550
Austin, TX 78701
Tel: (512) 480-8828
Fax: (512) 480-0888
Email: info@texastrustlaw.com


Published by: www.lawyer-monthly.com

March 27th, 2024 – 09:49

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