Miller Trust Texas | Houston Medicaid Attorney » eligibility

Who Can Sign a Miller Trust?

Rich Shea — Mon, 23 Apr 2012 11:54:08 +0000

A Miller Trust is created by the Texas Medicaid Applicant and the person they choose as Trustee signing the Texas Miller Trust document. In some cases this is easily accomplished, but in other cases where the Medicaid Applicant may not be able to sign the document because of a progressive condition like Alzheimer’s or other mental incapacity it can be a bit more challenging. So, who can sign and create a Texas Miller Trust?

The Medicaid Applicant

As long as the Medicaid Applicant meets the requirements of mental competency to sign legal documents they can sign the Texas Miller Trust document themselves and this is the preferred method of creating the trust. If the Medicaid Applicant does not have the required mental capacity to sign the Miller Trust document, then someone else will have to sign the trust for them.

A Valid Power of Attorney

If the Texas Medicaid Applicant has previously designated an individual to act as their legal representative through a valid power of attorney for property then that person can create the Miller Trust for the Medicaid Applicant. The key points with someone signing as power of attorney is that 1) the power of attorney must be valid, and 2) the power of attorney must be for property matters and grant the person sufficient power to create the trust. Some defects I have seen in power of attorney documents presented to me include: the notary not completing the acknowledgement of the person’s signature; only a power of attorney for medical decisions is signed; and generic documents that were not prepared by a Texas licensed attorney which do not grant the individual enough authority to establish the Miller Trust and the required bank account.

A Valid Guardian of the Person

If an individual has been found disabled and a Texas Court has established a Guardianship, the Texas Probate Code provides for a Guardian of the Person to apply for permission from the Court to establish a Miller Trust. You will have to obtain a court order to do so which will increase the amount of time to establish the Texas Miller Trust as well as the costs. It is important to note that the Guardianship must be a Texas Guardianship. If the Guardianship was ordered in another State then we will have to go through a court process to transfer the Guardianship to Texas.

A Valid Guardian of the Estate

If an individual does not have a Power of Attorney in place as described above, then in order for someone else to manage their property for them a Guardianship of the Estate must be appointed by the Court. The Texas Probate Code provides for a Guardian of the Estate to apply for permission from the Court to establish a Miller Trust. You will have to obtain a court order to do so which will increase the amount of time to establish the Texas Miller Trust as well as the costs. It is important to note that the Guardianship must be a Texas Guardianship. If the Guardianship was ordered in another State then we will have to go through a court process to transfer the Guardianship to Texas.

The Texas Medicaid eligibility rules require an applicant that has too much income create a Texas Miller Trust in order to receive Texas Medicaid nursing home benefits. Sometimes that is easier said then done as we have seen above, so if you believe there are any complications with getting your loved one’s Texas Miller Trust signed then take this into account when creating your timeline for Medicaid eligibility. The sooner you begin, the less likely you’ll be surprised by months of unpaid nursing home bills which they pursue you for.

Don’t Create a Medicaid Penalty by Mistake

Rich Shea — Mon, 16 Apr 2012 17:30:29 +0000

It happens everyday. A parent unexpectedly needs nursing home care and in the rush to try to protect assets people complete transactions with those assets. Without the guidance of an experienced and skilled Houston Medicaid attorney an innocent transaction can lead to disaster.

One common situation I come across while helping families all across Texas protect their assets is family members who try to protect an asset in the wrong way. Your Texas Medicaid attorney can help your family protect assets through the use of what is called exempt property. Exempt property can be kept by a Medicaid applicant without the HHSC counting it against them.

Families that try to do their own asset protection occasionally end up transferring property that could be exempt and kept by the Medicaid applicant. The improper transfer then results in a Texas Medicaid penalty and another $5,000 (or more) in unpaid nursing home bills all caused by an unwise attempt to protect an asset that did not need protection.

Don’t let this happen to you. It is perfectly normal and acceptable to want to protect as many assets as possible in these situations, but in order to effectively protect assets without creating new liability you need to know what you are doing and what the boundaries of the law are. Contact a Houston Medicaid Attorney from The Shea Law Firm at (832) 592-7913 to get started.

Texas Medicaid Eligibility 2012

Rich Shea — Tue, 03 Jan 2012 18:02:24 +0000

Certain numbers used to determine eligibility for Texas Medicaid benefits are subject to change every January 1st. For 2012 there was an increase in the monthly income limit while there was no change in the resource limits. For married Texas Medicaid applicants, there was also a minor increase in the minimum and maximum Community Spousal Protected Resource Amounts. The current figures are listed below.

Income Limit for an Individual:$2,094/month

Income Limit for a Couple: $4,188/month

Resource Limit for an Individual: $2,000

Resource Limit for a Couple: $3,000

Home equity is limited to $525,000

Minimum Community Spousal Protected Amount: $22,728

Maximum Community Spousal Protected Resource Amount: $113,640

What About Your Home?

An experienced Houston Medicaid Attorney can help you protect your home, both while you are alive and as well as preserve its value for your heirs. For additional information, read about our Texas Medicaid Home Protection program.

How Does this Impact Your Family?

If your loved one’s income or assets exceed the values listed above do not give up. A Houston Medicaid Attorney can help you establish Medicaid eligibility through proven techniques while protecting everything your family is entitled to protect. Act now to secure Medicaid eligibility and eliminate the uncertainty and restless nights wondering who will pay the nursing home costs of more than $100 every day. Remember, only you can protect your rights and property. Call The Shea Law Firm at (832) 592-7913 to get started today.

TexasTitle19.com is your connection to an experienced Houston Medicaid Attorney who can help you find the right nursing home, get the best care, and pay for it all without going broke. We are currently focused on Harris and Montgomery Counties, including the areas of Houston, Conroe, The Woodlands, Spring, Tomball, Humble, and Katy. We also provide consulting services throughout all of Texas.

Medicaid Eligibility 2011

Rich Shea — Sat, 08 Jan 2011 23:53:31 +0000

This post was written for Medicaid eligibility in 2011. For current Medicaid Eligibility information, visit: http://texastitle19.com/texas-nursing-home-medicaid-eligibility/

Certain numbers used to determine eligibility for Texas Medicaid benefits are subject to change every January 1st. For 2011 there were no changes in the income or resource limits. Unfortunately the minimum and maximum Community Spousal Protected Resource Amounts remained the same. The current figures are listed below.

Income Limit for an Individual:$2,022/month

Income Limit for a Couple: $4,044/month

Resource Limit for an Individual: $2,000

Resource Limit for a Couple: $3,000

Home equity is limited to $500,000

Minimum Community Spousal Protected Amount: $21,912

Maximum Community Spousal Protected Resource Amount: $109,560

How Does this Impact Your Family?

Medicaid Mythbusters Part 2

Rich Shea — Tue, 14 Dec 2010 23:18:21 +0000

This is another installment in my mythbusters series to help get some accurate information out there concerning some popular myths that surround eligibility for Texas nursing home medicaid benefits.

Myth
You can make gifts within five years of applying for benefits and just not tell anyone; or the State of Texas will not find out.

Fact
A Medicaid application averages about 45-90 days before the HHSC makes a decision. What do you think they are doing during that time? They are investigating and looking for clues to any assets that may not have been identified on the application. And even if you slip by on the initial application, if the asset is discovered later on you will lose your benefits then and incur liability for the benefits the state already paid. Hoping that you do not get caught is not a strategy.

Myth
You can make gifts of real estate, or cash, or stock, without creating a penalty as long as they are “small”.

Fact
Gifts or any transfer where the Medicaid applicant or their spouse receives less in value than they transferred to another person are a minefield for the inexperienced. There is no blanket exemption that a person can gift without penalty like there is for federal gift tax purposes. Any gift or questionable transfer can be the basis of a penalty that disqualifies your loved one from Medicaid. Unfortunately too many people without proper advice end up spending several thousands of dollars on nursing home costs because they incurred a penalty over a few hundred dollars. Not a good trade in my opinion.

Myth
If you have a joint account with a family member or someone else and you simply remove your name from the account that is not a transfer resulting in a penalty.

Fact
Removing an account owner’s name from an account and cutting off their access to the funds in the account is a gift transfer which will result in a penalty and period of ineligibility. This is the same as writing a check for the full amount of the account to the other account owner.

Don’t make the mistake that ends up costing your family tens of thousands of dollars. The Texas Medicaid rules are very harsh and do not distinguish between “innocent” mistakes and intentional acts to deceive. Protect yourself and your property with an experienced Texas Medicaid Attorney today.

Medical Necessity and Nursing Home Medicaid

Rich Shea — Thu, 09 Dec 2010 11:41:39 +0000

In order to qualify for nursing home Medicaid benefits the applicant must have a “medical necessity” to be in a nursing home. If you do not have a valid medical necessity then you will not be eligible for Medicaid. What is a “medical necessity?”

A Medical necessity exists when a person meets all of the following criteria:

(1) The individual must demonstrate a medical condition that:

(A) is of sufficient seriousness that the individual’s needs exceed the routine care which may be given by an untrained person; and

(B) requires licensed nurses’ supervision, assessment, planning, and intervention that are available only in an institution.

(2) The individual must require medical or nursing services that:

(A) are ordered by a physician;

(B) are dependent upon the individual’s documented medical conditions;

(D) are provided either directly by or under the supervision of a licensed nurse in an institutional setting; and

(E) are required on a regular basis.

This decision is generally made by the staff at the nursing home the Medicaid applicant resides at. It is a medical decision, but it can be appealed by your Medicaid Attorney if you believe the staff made a wrong decision. Get help today if your loved one needs nursing home Medicaid benefits.

No related posts.

Medicaid Mythbusters

Rich Shea — Thu, 25 Nov 2010 13:23:34 +0000

The Medicaid nursing home benefits program causes a lot of confusion. Part of why I publish this website is to get accurate information out there into your hands so you don’t make a decision based on rumors, stories, and other inaccurate sources of information. There are a lot of popular misconceptions about eligibility for Texas Medicaid. Let’s take a look at some of them.

Myth

You can make small or large gifts to family members within five years of applying for benefits and still qualify for Medicaid benefits without penalties.

Fact

There is no annual limit you can give to family members that will not create a penalty for Medicaid eligibility. Any gift can create a penalty. The confusion that sparked this myth is the annual gift tax exclusion which only applies to gift taxes and has no impact on Medicaid.

Myth

Your parent will lose everything before he or she can receive Medicaid benefits.

Fact

Potential Medicaid applicants do have some flexibility in making the most of their assets before qualifying for nursing home benefits. Married applicants can usually protect a sizable amount of assets for their spouse, and unmarried applicants can usually get more with their remaining assets than simply paying the nursing home bill until everything is gone.

Do not spend all of your money on nursing home bills. Find out how you can protect yourself and your family with a Texas Medicaid attorney.

Medicaid Mythbusters Part 2

The Only Reasons You Can Be Legally Discharged From a Nursing Home

Rich Shea — Wed, 27 Oct 2010 11:59:46 +0000

They all look nice when they are taking your money, but what about when the money is gone and your family member needs Medicaid? I have recently seen a disturbing increase in the number of Houston area nursing homes that threaten and attempt to discharge a resident simply because their Medicaid application is pending. Is this legal? How can you fight an illegal discharge?

It may not always seem like it, but nursing homes are subject to certain laws that they must follow. While it is not uncommon for nursing home administrators to make threats to family members about discharging their loved one for any reason they can think of, there are only a handful of valid legal reasons that a nursing home can discharge a resident against their will. Unfortunately this is a growing trend with Houston area nursing homes which I hope does not spread to other parts of Texas. One of the most common situations arises when the nursing home resident has applied for Medicaid benefits and stops paying the nursing home while the application is pending which can be 45-90 days or more if a hearing is required.

Let’s start at the beginning, which is a nursing home cannot discharge a resident unless they can fit the discharge into one of the valid legal reasons below. They cannot make up a new reason on their own, it has to be one of these established reasons. Here is the law, exactly as written in Texas and in the Federal Code:

The facility must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless:

(1) the transfer or discharge is necessary for the resident’s welfare, and the resident’s needs cannot be met in the facility;

(2) the transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;

(3) the safety of individuals in the facility is endangered;

(4) the health of other individuals in the facility would otherwise be endangered;

(5) the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid;

(6) the resident, responsible party, or family or legal representative requests a voluntary transfer or discharge; or

(7) the facility ceases to operate or participate in the program which pays for the resident’s care.

Number 5 is the rule that comes into play when a nursing home resident has applied for Medicaid and an overzealous Administrator believes they can easily discharge a resident while the application is pending. As you can see, the rule is not written as clear as it could be to include a prohibition of discharge while a Medicaid application is pending. In my opinion, even as poorly written as it is, it does leave the door open to prevent a discharge while the Medicaid application is pending if you make the right argument. Unfortunately, the people responsible for interpreting and applying this rule are the Health and Human Services Commission who may take a different approach for policy reasons. If they disagree with this interpretation then your last chance is to appeal to the appropriate court and attempt to convince a judge. Remember, it is the nursing home’s burden to prove the discharge satisfies the criteria above; it is not your burden to prove anything prevents the discharge.

Get Help Today

This is only the beginning of our discussion on improper discharges from Houston nursing homes. If you or a family member has been the victim of an improper discharge contact us and share your story so other families can avoid nursing homes that act in this what I consider illegal way. If you are a nursing home administrator that rejects this horrible practice and will not attempt to discharge a resident simply because they applied for Medicaid let us know so we can recognize your fairness.

If your family member is going to be applying for Medicaid benefits in the future, be prepared and consider obtaining legal help before the resources are all spent on the nursing home that may end up attempting to discharge your family member that gave them all of their money. Call (832) 592-7913 today.

How To Install a Granny Cam in a Texas Nursing Home

Medicaid Mistakes: Bad Advice from Unqualified People

Rich Shea — Sat, 01 May 2010 12:28:27 +0000

I regularly receive requests to help families that have already tried their own asset protection plan for Medicaid. Sometimes they come to me after a family member has done something with an account the previous week or it could involve an action from years ago and now the money is all gone. Can you see where this is going? If they contact me to fix something, obviously the do it yourself plan went wrong and they are now in a lurch between the nursing home and the Health and Human Services Commission (HHSC) with past due nursing home bills usually past the $10,000 mark or more.

How Does This Happen?

There is a lot of information on Texas Medicaid out there that is flat out wrong, mildly inaccurate, or completely inappropriate when applied to a specific family’s set of circumstances. Often times you may hear stories from friends or family about what worked for them and it is not uncommon for medical staff personnel in hospitals and rehab centers to make bold statements on your family member’s Medicaid eligibility.

Think twice before putting your loved one’s financial resources and Medicaid eligibility in their hands. Ask yourself, “Do they work for me? Do they know the details of my situation? Do they know the nuances of Texas and Federal Medicaid laws? Will they stand beside me in front of the HHSC?”

In my experience, most pieces of anecdotal advice from unqualified people are horribly inaccurate. Medicaid rules that may seem black and white at first glance often become a lot more complicated when you consider the very important details that make the difference between receiving benefits and being charged with a penalty. (Ordinarily this is where I jump into a story of how many families think qualifying for certain Medicaid exemptions is much easier than it actually is, but we will cover those situations in a separate article)

I hope you are here to educate yourself before going down this same dangerous road. This is my critical Medicaid mistake #1: relying on bad advice from unqualified people.

What Is The Worst That Can Happen?

Bad advice, or no advice, usually creates more problems than solutions. For example, bad advice has led families to transfer assets out of a parent’s name and then spend all of the funds within the look back period of the parent’s application for Title 19 Medicaid benefits. From a legal perspective, there is no rhyme or reason to these situations and they often lead to disaster. So in a case like this a family has transferred and spent everything and gotten themselves into trouble with the HHSC. What happens now?

Now, that the Medicaid application was denied they recognize they need a Montgomery County Elder Law Attorney to fix the Medicaid eligibility issue. They have already spent everything, how are they going to afford a Montgomery County Medicaid Attorney to help them out of this hole? Speaking for myself, it usually costs more to fix an ill-advised asset protection plan than to create a well designed plan.

Don’t Let This Happen to You

If you are interested in asset protection from nursing home costs without jeopardizing Texas Medicaid eligibility speak with a Houston Medicaid Attorney and do it right the first time. Hope is not a strategy when it comes to proving your case for Medicaid nursing home benefits that cost an average of $5,000 per month.

If you are considering a do it yourself asset protection plan, be prepared to go it alone from start to finish. There are some mistakes that cannot be undone by even the best attorney.

No related posts.

How Much Can You Give Away Without Penalty?

Rich Shea — Sat, 20 Feb 2010 16:25:29 +0000

In the world of Texas Medicaid eligibility, the words “gift” and “penalty” go together like “sunshine” and “lollipops”. In almost every case where there is a gift within the look back period you will find a penalty that prevents a person from obtaining Texas Medicaid benefits. I regularly speak with families that heard from someone, somewhere, at some point in time that a certain type of transfer or gift is acceptable. In every instance that I can remember this advice was given by someone that is not even a lawyer, or in the few instances where it is from a lawyer, it is not from an experienced Texas Medicaid Attorney. And that is usually the beginning of a long line of mistakes before they find their way to me.

So let’s get the record straight on what you need to be aware of before making that gift you’ve been thinking about. And if you have already made that gift and your family member needs Medicaid benefits within the look back period then run, don’t walk, to a Medicaid Attorney.

First - any transfer of any asset for less than fair consideration within the lookback period (up to 5 years) of applying for Texas Title 19 Medicaid benefits creates a penalty period of ineligibility. Say it with me out loud – any transfer of any asset for less than fair consideration within the lookback period of applying for Texas Title 19 Medicaid benefits creates a penalty period of ineligibility.

Now that we understand the rule, let’s go over some basics.

You will notice all types of transfers are included in the rule. Be it writing a check to a friend or family member, handing them cash, signing a deed over to someone etc. As it says, any and every transfer for less than fair consideration is included in the scope of the rule. A simple way to look at it is if the person gives away an interest and access to property, you are at risk for your transaction being labeled a penalizing transfer and resulting in a period of ineligibility for Texas Title 19 Medicaid benefits.

One popular transaction that comes up often is taking a joint account and removing the Medicaid applicant’s name from the account. This is a gift. The Medicaid applicant had unrestricted access to the full value of the account on one day and after his or her name was removed from the account they no longer had access to the account. This transaction results in a period of ineligibility.

Another popular question concerns Medicaid penalties and annual exclusion gifts. For tax purposes, each person is allowed to gift a certain value to any person tax free. That is where the annual exclusion gifts end, for tax purposes only. In the context of a Texas Title 19 Medicaid application, a gift that you made which is tax-free can very well be (and almost always is) a gift subject to penalties for Medicaid eligibility purposes.

Another example is special occasion gifts such as birthdays and graduations etc. There is no exclusion for these types of transfers no matter how noble or small they may be. Any and every gift is subject to the penalty period of ineligibility rules whether it is $5,000 or $500.

But I Heard About Such and Such Exception

You may be right, there are a few very narrow exceptions of transfers that do not create a penalty, however the burden is on you and your Houston Medicaid Attorney to establish by the evidence that you qualify within one of the specific exceptions. If you do not prove your case you are left with a penalty, and that is what this article is about. We will review some of these exceptions in detail in future articles.

One final word; if you are considering a strategy of stonewalling the Health and Human Services Commission by denying information, then think again. You bear the burden of proving your eligibility. If the law presumes a transfer is a penalty and you do not prove otherwise your loved one will be denied benefits.

So how much can you give away without creating a penalty?

If you are outside the look back period then you can give away as much as you want. If you are within the look back period then you really can’t give away anything. The best thing you can do is to speak with a Houston Medicaid Attorney to find out what your options are to structure transfers to avoid them being labeled as “gifts” in the first place.