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Texas Elder Law Questions & Answers

1 Answer | Asked in Divorce, Estate Planning and Elder Law for Texas on

Q: Is spouse's Defined Benefit Pension part of QDRO? Even though spouse selected single life annuity & no death benefits?

Terry Lynn Garrett answered on Aug 22, 2019

What will go into the QDRO is a matter of negotiation.

1 Answer | Asked in Estate Planning, Elder Law and Probate for Texas on

Q: Texas laws: Can A Guardian of an elderly mother, who is incapacitated, withdraw funds from her mother's living trust?

Mother & father are settlors, primary beneficiaries, & co-trustees. Mother has been incapacitated. Father has been grossly negligent in his fiduciary duties as co-trustee. He has withdrawn/spent large amounts from the trust for his own benefit & didn't use any of the withdrawals for mother. Father... Read more »

Terry Lynn Garrett answered on Aug 22, 2019

The rights of an incapacitated co-trustee of a revocable living trust depend on what the trust document says. Most revocable living trust documents state that the co-trustee, in this case the husband, shall make all decisions in that event. Similarly, most revocable living trust documents state... Read more »

1 Answer | Asked in Divorce, Estate Planning and Elder Law for Texas on

Q: Texas--Elderly parents retired & divorcing. Is wife entitled to husband's defined benefit pension plan?

Husband chose single life annuity monthly payments on his pension so he is currently receiving 100% pension payments. His pension will end at his death so wife will get nothing. Can wife claim part of his monthly pension payments when divorce is completed? Or can wife claim lump sum payment based... Read more »

Terry Lynn Garrett answered on Aug 22, 2019

The safest way to handle this may be to get a Qualified Domestic Relations Order as part of the divorce decree.

1 Answer | Asked in Elder Law and Health Care Law for Texas on

Q: Would a medical poa prevent the APS from removing my dad from his home?

Even though they consider him incompetent he still drives, bathes himself, cooks, does own laundry, fixes stuff around the house, has own bank accounts, etc.

Tammy Lyn Wincott answered on Aug 16, 2019

Having a POA does not stop the State from removing someone if they believe they are in danger. As I suggested before, you should immediately contact an elder law attorney who does guardianships as well.

1 Answer | Asked in Elder Law and Health Care Law for Texas on

Q: If I have a POA can the state remove my father from his home because they think he's incompetent?

Started out as complaint about apparent self neglect then escalated to incompetence. Dad does drive safely, does own shopping, bathes, feeds himself, even shaves himself.

Tammy Lyn Wincott answered on Aug 16, 2019

Do you have a medical power of attorney or just durable POA? I suggest you contact an elder law attorney asap. Sometimes, these investigations can get blown way out of proportion very quickly.

3 Answers | Asked in Elder Law, Estate Planning and Gov & Administrative Law for Texas on

Q: Can a Son of a terminally ill parent that is not of their right mind have a document signed to sell the parents home?

Even when close friends know it is not her wish.

Terry Lynn Garrett answered on Aug 4, 2019

If a person's dementia has progressed to the point that she lacks legal capacity to contract, the contract is void and the attempt to profit from it is exploitation of an elderly person, a first degree felony in Texas. Contact APS.

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1 Answer | Asked in Elder Law for Texas on

Q: How can I move my father back to Texas from an Assisted Living facility in Omaha, NE?

Prior before Hurricane Harvey I took care of my father but after the storm my older siblings to him back to Omaha they were going to care for him in their home. However he was placed in an Assisted Living Facility, I now have a brand new home I'm fully capable of taking care of him. What steps can... Read more »

Terry Lynn Garrett answered on Jul 31, 2019

Your father's contract with the assisted living facility governs. These contracts are usually month to month.

1 Answer | Asked in Elder Law for Texas on

Q: Could removing a lifetime estate Claus from a warranty deed cause my mom to loose Medicaid payments to the nursing home

My brother and I are co owners of the warranty deed the clause is on. She lives in a memory care facility the Medicare helps pay the room and board along with her social security We live in Texas?

Terry Lynn Garrett answered on Jul 29, 2019

In Texas the home is not counted in determining eligibility for nursing home Medicaid. There is no need to remove the clause granting your mother a lifetime estate. Giving up that lifetime estate, however, could be seen as gifting the people who have the remainder interest (you and your brother).... Read more »

1 Answer | Asked in Elder Law and Health Care Law for Texas on

Q: Puerto Rican hospice patient, made POA there.

I am hospice social worker in Texas. I am also a Texas notary. Dtr having difficulty getting POA honored in USA b/c it is in Spanish. Patient is now demented so can’t make a new one.

How can I help.

Tammy Lyn Wincott answered on Jul 24, 2019

I suggest obtaining a certified translation of the document and attaching it to the original.

1 Answer | Asked in Elder Law and Medical Malpractice for Texas on

Q: My 91yr old mother in law who is wheelchair bound and in the last stages of Alzheimers disease.

She was discharged to my husband, 61 and had a heart attack and is unemployed and me 63 on medical disability. Needs total assistance with all ADL's. No discharge summary no Plan of care. We were financial unable to cover the cost of the nursing home. She has outlived her money to pay. Between her... Read more »

Terry Lynn Garrett answered on Jul 3, 2019

It appears that the nursing home would have done better to advise you to apply for Medicaid. Although Texas is one of 13 states with an income cap ($2,313 in 2019), under federal law an applicant can still qualify by establishing a Qualified Income Trust a/k/a a Miller Trust. This is basically a... Read more »

1 Answer | Asked in Elder Law for Texas on

Q: My sister is only interested in my dad’s lawsuit, wont visit him or give him status

I have spent more than 50% of the last year helping my parents I live in CA they live in Tx. Its been exhausting. My younger sis lives 3 hrs away has visited couple hrs last year. Dad has lasbestos lawsuit going. She had originally called the attorney. My dad and I called to get updatessince... Read more »

Terry Lynn Garrett answered on May 31, 2019

If your father is the client, his lawyer should not be speaking with anyone but him about it without his prior written permission. Your father should shut the spigot.

1 Answer | Asked in Elder Law for Texas on

Q: My question is long, best asked through email. Is that possible? Thanks. Harry Fitzner.

Terry Lynn Garrett answered on May 19, 2019

Send an email to info@elderlawAustin.com.

Please note that Medicaid varies from state to state. If you are concerned about MediCal, you might want to try the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)

2 Answers | Asked in Elder Law for Texas on

Q: My Mom was in the nursing home, and was on medicaid for all but 2 months, that was not covered.

Are the adult children responsible for this, when there was nothing in the estate? (In Texas)

Terry Lynn Garrett answered on Apr 23, 2019

No. The bill is your mother's bill and the bill of her estate. There may be a problem if the nursing home got someone to sign your mother in as "personal representative" : that makes them personally responsible for her bill. Although the practice is illegal, it is widespread. If this has... Read more »

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2 Answers | Asked in Elder Law and Real Estate Law for Texas on

Q: I would like or sell my townhome to my daughter and remain in the home. What are the issues?

I would be paying all insurance and taxes, upkeep. I would like to maintain a homesteader exemption.

I would like to have more available income to travel. Not interested in a reverse mortgage.

Terry Lynn Garrett answered on Apr 6, 2019

If you sell your home to your daughter, she, not you, will be entitled to the homeowner's exemption. Unless she is 65 or older, the elderly person's exemption will be lost. She could kick you out. She could lose the home to creditors or predators and they could kick you out.

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1 Answer | Asked in Elder Law for Texas on

Q: Can I pay myself as POA as my Mother's POA and what would be considered reasonable?

Tammy Lyn Wincott answered on Apr 5, 2019

Only if the POA allows you to be paid.

1 Answer | Asked in Family Law and Elder Law for Texas on

Q: Stepmom was diagnosed with dementia. Afterwards, her son got POA but my dad is alive, competent and still married to her

My stepbrother has been mostly out of the picture and not present in my stepmoms life for over 30 years, only contacting her for Christmas, her birthday and mother’s day. She was diagnosed with dementia and he immediately got her to sign medical POA to him behind my dads back and now he has... Read more »

Terry Lynn Garrett answered on Apr 1, 2019

Some people in the early stages of dementia still have legal capacity to contract, the level of legal capacity required to sign a Durable [Financial] Power of Attorney.

However, a Medical Power of Attorney, not a Durable [Financial] Power of Attorney, gives someone the authority to complete...
Read more »

1 Answer | Asked in Real Estate Law, Elder Law, Probate and White Collar Crime for Texas on

Q: How difficult is it to have a real estate transaction voided based on the buyer's mental incapacity at the time.

In 2015 my Dad's wife said he had Alzheimer's so I would watch him at my apartment while she was at work because she said couldn't leave him at home by himself. His wife remarried him right after she found out he was getting a disability settlement from the VA. As soon as Dad got the money she... Read more »

Terry Lynn Garrett answered on Mar 31, 2019

Few lawyers can guesstimate the difficulty. So much depends on the documents, the witnesses, etc. If you would like to ask a local elder lawyer who litigates elder fraud to discuss the possibilities with you, please use the Find a Lawyer function on the website of the National Academy of Elder... Read more »

1 Answer | Asked in Elder Law for Texas on

Q: My brother is the oldest and in charge of my moms funeral arrangements but my sister had life insurance policy my brothe

Tammy Lyn Wincott answered on Mar 26, 2019

Please complete your question in order for us to understand.

1 Answer | Asked in Family Law and Elder Law for Texas on

Q: Can a family member whose power of attorney has been revoked evict a live in care giver?

The care giver has power of attorney. 24/7 care for almost 2 years.

Ross F. Tew answered on Mar 7, 2019

Evicting a residential tenant requires authority. If the caregiver is living with your family member and was invited to do so by your family member or someone speaking for your family member, then the caregiver is a tenant at will and his or her tenancy can be ended by your family member or... Read more »

1 Answer | Asked in Elder Law for Texas on

Q: How Do I exercise DPOA limit to a family member whom is trying to move in my mothers home w four children and self.?

We are currently in a APS/CPS involving this niece and my parent. The police were involved since child neglect is an issue. My mother is 84 yrs old n disabled. Sarah leaves her children, 1-3 children per incident w her on a regular basis.

I need to keep her away from my parent for her... Read more »

Terry Lynn Garrett answered on Jan 23, 2019

Who lets her in? It is still your mother's house. If your mother lets her in the door, will it help to put a padlock and a no trespassing sign on the gate?

On the other hand, if the niece has harmed your mother while "living" there, get a temporary restraining order based on domestic...
Read more »

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