Texas Elder Law Questions & Answers

Q: Can a family member whose power of attorney has been revoked evict a live in care giver?

1 Answer | Asked in Family Law and Elder Law for Texas on
Answered on Mar 7, 2019
Ross F. Tew's answer
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 someone with authority to make decisions on behalf of your family member. Without getting into the details of why the caregiver should be evicted, whether the caregiver's POA is valid, or why your POA was...

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.?

1 Answer | Asked in Elder Law for Texas on
Answered on Jan 23, 2019
Terry Lynn Garrett's answer
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 violence.

Q: My step brother has had my grandmother transfer land and possibly other property to him and she doesn’t remember it

1 Answer | Asked in Civil Litigation and Elder Law for Texas on
Answered on Dec 24, 2018
Terry Lynn Garrett's answer
Contact APS. Take your grandmother to her physician. Ask him to complete a Physician's Certificate of Medical Examination (available on my website or from any probate court or Approved Guardianship Attorney). Hire an attorney to possibly file (1) a correction deed, (2) a Motion for a Temporary Restraining Order and Permanent Injunction and, if needed (3) a Guardianship.

Exploitation of an elderly person is a first degree felony in Texas.

Q: if i feel a home health caregiver is exploiting my elderly dad in our home, how can i get rid of her?

1 Answer | Asked in Elder Law and Health Care Law for Texas on
Answered on Dec 13, 2018
Terry Lynn Garrett's answer
If your father has legal capacity to contract, he has legal capacity to select his own caregiver. On the other hand, you have a right to decide who comes in your home. It sounds as though the company has not discovered a difficulty. What evidence of exploitation do you have? Do you think that it would stand up in court? Think about this and see what the doctor says. Maybe you could alternate this person with some others and find someone else whom your father likes.

Q: My grandmother doesn't take good care of her dog. If I take the dog home with me one day, could she sue me?

1 Answer | Asked in Elder Law for Texas on
Answered on Dec 7, 2018
Terry Lynn Garrett's answer
In theory, yes. But could she recover? Are you preventing the dog from being taken away by the ASPCA?

Q: Should my mother gift her home to a family member prior to going to a nursing home?

1 Answer | Asked in Elder Law for Texas on
Answered on Dec 7, 2018
Terry Lynn Garrett's answer
NO! Medicaid has a five year look back period. Transfers for less than fair market value (which a gift always is) are presumed to be transfers in an attempt to qualify for Medicaid and will result in a penalty period during which Medicaid will not pay for your mother's care. The penalty period could be several months to several years, depending on the value of the home.

In Texas, as long as your mother checks a box on the Medicaid application saying that she has an intent to return...

Q: When a relative has guardianship over an incapacitated elder US citizen. What is the jurisdiction regarding US assets

1 Answer | Asked in Elder Law, Estate Planning and Family Law for Texas on
Answered on Dec 5, 2018
Terry Lynn Garrett's answer
If the assets are real property, the courts of the state where they are located have jurisdiction.

Q: What rights do seniors have if their kids want to put them in a nursing home, but they do not consent?

1 Answer | Asked in Elder Law for Texas on
Answered on Nov 16, 2018
Terry Lynn Garrett's answer
Other than you, the only person who has a right to decide where you live is a guardian of your person.

That said, if you are already in a nursing home, the discharge plan must provide for you to go to a safe place where you will get the care you need -- and such a place must exist.

Q: Under what circumstances can someone who's 70 years old obtain health insurance from the federal government?

1 Answer | Asked in Elder Law for Texas on
Answered on Nov 5, 2018
Tammy Lyn Wincott's answer
If you're referring to Medicaid, it is generally based on your income and assets. There is also a 5 year "look back" period where your transfer of assets during that time will be closely reviewed and may disqualify you. Speak with an attorney familiar with Medicaid in your area. If you own a home there are estate planning tools to use that would protect your house from going to the government as Medicaid recovery after you pass away.

I strongly suggest you speak with an attorney...

Q: My Dad died in March, 2017. He left a big mess for me to deal with. He had allowed his home to be put into foreclosure.

2 Answers | Asked in Elder Law for Texas on
Answered on Oct 27, 2018
Terry Lynn Garrett's answer
Talk to a local probate lawyer. Based on your description, you and any other heirs may be able to file an Affidavit of Small Estate. The filing fee varies from county to county but is generally a little over $300. You would be wise to hire a probate lawyer to look it over and file it for you: in most counties over 90% are rejected due to one small error or another.

Q: How does something request a competency hearing in Montgomery County, Tx?

1 Answer | Asked in Criminal Law, DUI / DWI and Elder Law for Texas on
Answered on Oct 22, 2018
Kiele Linroth Pace's answer
DWI is a criminal offense so he should apply for a court appointed attorney. However, being found incompetent has other serious ramifications that he should discuss with his attorney.

Q: Can my attorney cash a settlement check without my knowledge?

1 Answer | Asked in Personal Injury and Elder Law for Texas on
Answered on Oct 17, 2018
Timur Akpinar's answer
I do not practice in Texas but your question remains open for four weeks. In general, attorneys do use limited power of attorney provisions to conduct limited banking transactions, such as enabling deposit of checks on behalf of clients, where the purpose is to avoid the need for client to come to the office to sign check for deposit into attorney account (IOLA) to enable payment to client. A Texas attorney might be able to provide more in-depth insight as to the operation of your particular...

Q: What is the procedure for filing for judicial revocation of power of attorney in Bastrop County Texas?

1 Answer | Asked in Elder Law and Estate Planning for Texas on
Answered on Sep 26, 2018
Terry Lynn Garrett's answer
Throughout Texas the signer of a Durable Power of Attorney (your mother) can revoke it by giving notice to everyone to whom it might be presented and, if it involves real estate, record the revocation in the deed records of the county where the real estate is located. That can be ineffective if notice is not given to someone and the agent under the Durable Power of Attorney presents it to them. Courts generally "revoke" a Durable Power of Attorney by appointing a guardian.

If someone...

Q: My siblings and I are about to sell my parents home. My parents moved to assisted living. We will net about $150K

2 Answers | Asked in Elder Law and Estate Planning for Texas on
Answered on Sep 14, 2018
Terry Lynn Garrett's answer
Please contact an elder lawyer. What you can do and still let your parents qualify for Medicaid varies by state. You can use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)

Q: Can I get durable & medical POAs over my elderly mother reinstated?

1 Answer | Asked in Elder Law for Texas on
Answered on Sep 6, 2018
Terry Lynn Garrett's answer
While you cannot get those documents "reinstated," if your mother lacks legal capacity, you can apply to become her guardian. Guardianship trumps powers of attorney.

Q: Is it illegal for an 18 year old to date a 14 year old in Texas

1 Answer | Asked in Consumer Law, Criminal Law, Elder Law and Juvenile Law for Texas on
Answered on Aug 30, 2018
Roy Lee Warren's answer
Of course, but no "hanky panky". Sexual contact is illegal so no sexting either.

Q: now can a 77 year old single woman evict a 50 year old mentally ill daughter who verbally abuses her, takes her money

1 Answer | Asked in Elder Law for Texas on
Answered on Aug 26, 2018
Terry Lynn Garrett's answer
(1) Call Adult Protective Services

(2) Send a 30 day eviction notice by regular and certified mail, return receipt requested

(3) File suit in your local justice of the peace court

(4) Ask the sheriff to oversee the eviction

There are board and care homes which are within the budget of a mentally ill person receiving Supplemental Security Income. There is somewhere she can go.

Q: Are nursing homes allowed to discriminate based on age of the applicant (too old or too young)?

2 Answers | Asked in Elder Law for Texas on
Answered on Aug 22, 2018
Terry Lynn Garrett's answer
No. Generally speaking, no. One out of seven people living in a nursing home is under 65. But how young is young? For some children and young adults, there may be a better place.

Q: My mother has alzheimer and is living at my sister's house. My sister and I had a major argument and she kicked me out

1 Answer | Asked in Family Law and Elder Law for Texas on
Answered on Aug 3, 2018
Terry Lynn Garrett's answer
On what grounds could your sister have you arrested? Would you be disturbing the peace or violating a no trespassing sign or a temporary restraining order?

You might want to report your sister to Adult Protective Services. She does not have the right to control your mother's visitors: your mother does.

Q: I purchased my mother's home after she was not able to make her payments. She is in nursing home and receives medicaid.

2 Answers | Asked in Real Estate Law and Elder Law for Texas on
Answered on Jul 20, 2018
Terry Lynn Garrett's answer
If she sold the home for fair market value, selling the home should not disqualify her. If she sold it for less than fair market value within 60 months of entering the nursing home and applying for Medicaid, a penalty period will be imposed based on the amount of the "gift." During this period, she will not qualify. She may want to review her entire situation with a local elder lawyer. To find one, please use the Find a Lawyer function on the website of the National Academy of Elder Law...

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