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Texas Elder Law Questions & Answers
1 Answer | Asked in Elder Law and Health Care Law for Texas on
Q: I was told if the state steps in to over see my elderly mother who has dementia they would take her home Is this true?

I live with my elderly mother who has dementia in her home. She is getting to the point where I can't care for her (no one has power of attorney) and I was wondering if I contact Adult Protective Services, would they help me get her help because she wont let me help her. And also someone told me... Read more »

Terry Lynn Garrett
Terry Lynn Garrett answered on Sep 23, 2019

Not in Texas. You may want to help your mother enter a memory care or a skilled nursing facility, though if she is being neglected because you cannot care for her at home anymore (when would you sleep?), Adult Protective Services may step in. If she has a medical necessity for nursing home care,... Read more »

1 Answer | Asked in Elder Law for Texas on
Q: my mom has dementia and if she goes to a nursing home what would happen to her home?

I live with my mom in her home and its getting to the point I can't care for her. What would happen to her home which is mortgaged if the state places her in nursing home. She doesn't have anyone to be her power of attorney.

Tammy Lyn Wincott
Tammy Lyn Wincott answered on Sep 18, 2019

Her home is protected currently under homestead laws. If she goes on medicaid and has not recorded a transfer on death deed then medicaid will have an automatic lien on the house and may seek to collect when she passes away.

If she's capable fo giving consent you should have her designate...
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3 Answers | Asked in Elder Law, Estate Planning and Probate for Texas on
Q: what would happen to my mothers home if the state is issued guardianship

I live with my mother in her home in Texas. She has dementia and its getting to the point I can't care for her. She has not appointed anyone power of attorney. I was wondering what would happen to her home if state rules she needs to be placed in nursing home if they become her guardian. Her home... Read more »

Jon R. Boyd
Jon R. Boyd answered on Sep 18, 2019

You should consult with an Elder Law/Estate Planning attorney. This is for Family Law questions.

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1 Answer | Asked in Divorce, Family Law and Elder Law for Texas on
Q: Texas laws: Can Durable Power of Attorney for incapacitated adult file for divorce on behalf of incapacitated adult?

Child named Agent of elderly mother's Durable Power of Attorney in Texas. Father has been mentally & verbally abusive to mother for years & has been grossly negligent in his fiduciary duties of the family living trust. He has withdrawn substantial amounts from the trust & bank accounts for his own... Read more »

Tammy Lyn Wincott
Tammy Lyn Wincott answered on Sep 13, 2019

Contact Adult Protective Services if you believe there may be financial, mental or physical abuse. Her agent needs to safeguard her assets, i.e. separate bank account, etc.

2 Answers | Asked in Estate Planning, Elder Law and Probate for Texas on
Q: If l lost the original POA then what is the legal remedy?

I lost the original POA for my mom but l have 3 copies. I am trying to sell a house she owns but the title company will only accept the original. What can l do? The POA states that the use of a copy is acceptable. Do l have to go before a judge or something? What do l do? I am in Texas.

Terry Lynn Garrett
Terry Lynn Garrett answered on Sep 9, 2019

Change title companies. The law allows someone to request a certificate or a letter from a lawyer stating that the DPOA is still in effect. More is a matter of title company policy.

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1 Answer | Asked in Elder Law for Texas on
Q: I need letters of administration for the estate of one who died intestate in Craven Co. When might I expect approval?

I should have said Craven Co, North Carolina. I am in Texas and need to understand what the timeline is, once I submit the application, in order to make travel plans. (Is there somewhere else I should be asking the question? I've scoured the internet, and it looks like Craven Co. doesn't take... Read more »

Terry Lynn Garrett
Terry Lynn Garrett answered on Sep 9, 2019

You should hire a Craven County probate attorney to represent you. Most counties will not let you represent yourself in a probate proceeding. It is more complex than may appear.

1 Answer | Asked in Elder Law, Estate Planning and Probate for Texas on
Q: I am secondary DPOA for my parent. The primary DPOA has ceased any actions of financial responsibility.

He verbally stated he wouldn’t do these duties but wants to act as DPOA upon my parents death. How can I hold him to his lack of actions to these financial duties. He states he can do what he wants w/ the property my parent owns.

Terry Lynn Garrett
Terry Lynn Garrett answered on Sep 1, 2019

A 2017 change to Texas' DPOA law requires that he report and give an accounting, with receipts, to the principals. An interested person can also ask the courts to look into his actions and failure to act. You might want to talk with a local elder law attorney. You can find one using the Find a... Read more »

1 Answer | Asked in Elder Law for Texas on
Q: what needs to be done to transfer home to my name?

My husband died in April. Our home was in his name and there was no will. We have one daughter. I have received a noticed from the city that the taxes will go up because the exemptions will expire. can you help me? I am disabled and it is very difficult for me to leave the house.

Terry Lynn Garrett
Terry Lynn Garrett answered on Aug 24, 2019

Your husband's interest needs to be transferred to you using an Affidavit of Heirship or an Application for Determination of Heirship. Elder law attorneys are accustomed to calling on people at home. You can find one near you using the Find a Lawyer function on the website of the National Academy... Read more »

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
Terry Lynn Garrett answered on Aug 22, 2019

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

2 Answers | 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
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 »

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2 Answers | 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
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.

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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
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
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
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
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
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
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
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
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
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)

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