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.
Contact us at (832) 592-7913 to take the first step to not paying any more in nursing home bills than is necessary.