Elder Care Law

Medicaid Estate Recovery Program MERP

Posted by on Aug 22, 2014 in Elder Care Law, Estate Planning | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak

Medicaid Estate Recovery Program MERP

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

There is no free lunch. These words ring true when it comes to Medicaid. Since 2005, the state is allowed to recover some of the Medicaid money spent on individuals by tapping patients’ estates after they die. In most cases, the most valuable asset is the home.

On March 1, 2005, Texas implemented the Medicaid Estate Recovery Program in compliance with federal Medicaid laws. The program is managed by the Texas Department of Aging and Disability Services.

Under this program, the state may file a claim against the estate of a deceased Medicaid recipient, age 55 and older, who applied for certain long-term care services on or after March 1, 2005. Claims include the cost of services, hospital care, and prescription drugs supported by Medicaid.

The Texas Health and Human Services Commission may not file a claim if one of the following conditions exist:

There is a surviving spouse.

There is a surviving child or children under 21 years of age.

There is a surviving child or children of any age who are blind or permanently and totally disabled under Social Security requirements.

There is an unmarried adult child residing continuously in the Medicaid recipient’s homestead for at least one year before the time of the Medicaid recipient’s death.

An undue hardship waiver may be filed when:

The estate property is: a family business, farm, or ranch; is the primary income producing asset of the heirs; produces at least 50 percent of the livelihood for heirs for at least 12 months prior to the death of the Medicaid recipient; and recovery by the state would affect the property and result in heirs losing their primary source of income.

Beneficiaries of the estate will be eligible for public or medical assistance if recovery claim is collected.

Allowing one or more heirs to receive the estate enables them to discontinue eligibility for public or medical assistance.

The Medicaid recipient received medical assistance as the result of being a crime victim.

Additionally, the Medicaid Estate Recovery Program claims will only be filed when it is cost-effective. Claims that are considered not cost-effective are those where:

The value of the estate is $10,000 or less.

The recoverable amount of Medicaid costs is $3,000 or less.

The cost of the sale of the property would be equal to or greater than the value of the property.

For more information you can log onto the Texas Health and Human Services Commission website at www.dads.state.tx.us

Remember, nothing from the government comes for free. There are always strings attached and before you blindly apply for Medicaid, know all the facts so that you can make an informed decision. There are a lot of myths and untruths out there about Medicaid, seek legal advice from somewhere other than the coffee bar.

If you find yourself in the age group of 50 to 70 you should start researching long-term care insurance. The younger you are when you apply the better. Why should you consider buying long-term care insurance? The most common reason is to insure against impoverishment. However, you may just want to ensure that you do not have to use any of your life savings or assets to pay for your living expenses. Finally, you may want to leave an inheritance to your children or grandchildren. Another common belief is you can’t take it with you, so you might as well spend it all before you go. Your choice to purchase long-term care insurance can only be determined by your personal values and goals.

I hope the information provided here is helpful. If you have any questions regarding this, please consult with an attorney.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

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FREQUENTLY ASKED QUESTIONS ABOUT GUARDIANSHIPS

Posted by on Jun 27, 2014 in Elder Care Law, Family Law | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak

Frequently Asked Questions About Guardianships

 The information in this column is not intended as legal advice but to provide a general understanding of the law. Some of the information in this column was prepared by the State Bar of Texas and is reprinted in this column with permission. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

 While I am an advocate for the use of a Power of Attorney to avoid guardianships, I realize there are times when a guardianship cannot be avoided. Therefore, in this week’s column I will address some of the more frequently asked questions regarding guardianships.

How does one go about initiating a guardianship?

Any interested party may file an application with the proper court requesting that a guardian be appointed for a person believed to be incapacitated.

 What is the definition of an incapacitated person?

A person may be found to be incapacitated if due to a mental or physical condition he or she is unable to: (1) provide food, clothing, or shelter for himself or herself; (2) care for his or her own physical needs, or (3) manage his or her own financial affairs. A finding of incapacity will allow the person to be placed under guardianship. A minor person (someone under 18 years of age) and missing persons are also considered to be incapacitated.

Once a guardian is appointed, does the incapacitated person lose all rights and powers?

Not necessarily. A judge may appoint a guardian for an incapacitated person, but limit the guardian’s powers so that all rights and powers except those granted to the guardian are retained by the incapacitated person.

 Who may serve as guardian?

The court will appoint a guardian for an incapacitated person in the following order of priority: (1) the incapacitated person’s spouse; (2) the person’s nearest kin; and (3) an eligible person who is best qualified to serve.

 Do the types of guardians vary?

Yes. Generally, there is a guardian of the person and a guardian of the estate. The guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter. The guardian of the estate has the duty and power to manage the incapacitated person’s financial affairs. One person can fill both positions.

 Who is not allowed to serve as guardian?

A person may not be appointed guardian if the person is a minor, a notoriously bad person, an incapacitated person, a person who is a party to a lawsuit affecting the incapacitated person (with some exceptions), a person who owed the incapacitated person money, unless it is repaid, a person with adverse claims to the incapacitated person or his property, an inexperienced or uneducated person, a person the court finds unsuitable, a person eliminated in a person’s designation of guardian, or a nonresident without a resident agent.

 Are there costs involved in a guardianship?

Yes. Obtaining a guardianship involves filing a lawsuit regarding a person’s rights and is therefore typically, very costly. These cost include attorney’s fees, filing fees, attorney ad litem fees, and bond premiums to be paid out of the incapacitated person’s estate.

What rights are retained by the incapacitated person?

The incapacitated person has the right to receive a copy of the application for guardianship and other documents filed with the County Clerk. He or she is also entitled to be at the hearing to determine whether he or she is incapacitated.

Is an alleged incapacitated person represented by an attorney?

Yes. When a guardianship is filed, the court appoints an attorney ad litem to represent the interests of the alleged incapacitated person. The person can also retain his or her own attorney.

What happens at a guardianship hearing?

The person who filed the application must prove the incapacity through testimony and medical evidence. The alleged incapacitated person has a right to bring his or her own witnesses to court and also the right to speak to the judge. The alleged incapacitated person may also request a jury trial. The judge or jury will determine if the person is incapacitated.

How soon can a guardianship hearing be held?

The earliest date to schedule a hearing is the Monday following the expiration of 10 days after the alleged incapacitated person has been personally served with the application of guardianship.

Upon appointment, how does a guardian qualify?

The guardian must file an oath and post a bond in the amount set by the court to insure proper performance of his or her duties.

Does the guardian have reporting requirements to the court?

Yes. The guardian of the estate must file an inventory within 30 days of qualifying. The inventory must list all assets of the incapacitated person coming into the guardian’s hands and all debts owed to the estate. The guardian of the estate must file an annual account to report all receipts and disbursements. The guardian of the person must file an annual report on the location, condition, and well-being of the incapacitated person.

What if there is an immediate need for the appointment of a guardian?

A temporary guardian can be appointed without notice to the proposed incapacitated person if his or her person or property is in imminent danger. Usually a temporary guardianship will not exceed sixty 60 days. However, if a permanent guardianship application has been filed and is contested or challenged, the court may appoint a temporary guardian to serve as temporary guardian until the contested guardianship action is resolved.

Does the person for whom a temporary guardianship has been appointed have any rights?

Since that person is not presumed to be incapacitated, he or she retains all rights and powers not granted to the temporary guardian. He or she is entitled to be served with a copy of the documents that are filed. The court must appoint an attorney to represent the alleged incapacitated person. The court must hold a hearing no later than ten 10 days after the date of filing the temporary guardianship to determine whether there is a need for continuation of the temporary guardianship.

Pursuing a guardianship for a loved one can be a difficult process, emotionally and legally. An attorney can assist you in determining if a guardianship is appropriate for your particular situation. If you have further questions or are considering a guardianship for a loved one, you should consult your attorney.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

 

 

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HOW TO AVOID A CONTESTED PROBATE

Posted by on Feb 21, 2014 in Elder Care Law, Estate Planning | 0 comments

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“THE LEGAL CORNER”

By Sam A. Moak

How to Avoid a Contested Probate

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

I, like many elder law attorneys, spend a large part of my practice engaged in preventive law. Preventive law is a law practice that seeks to anticipate and prevent legal problems and litigation. It is an approach found in several other areas of law besides elder law and estate planning. Many of us who practice elder law already use counseling techniques and many of the documents we prepare with the goal of avoiding litigation (such as an expensive trip to probate court or other legal or financial harm that might have been avoided with appropriate planning).

The conduct of an attorney would of course vary with the situation and depend on the unique circumstances of the case or conflict. With that said, there are some behaviors that would distinguish the peacemaking mindset, and which would be designed to obtain win-win outcomes. These include a willingness to (1) agree to stipulations as to facts and the admission of evidence along with other requests to hasten the proceeding; (2) accommodate requests from opposing party or counsel for schedule changes due to illness, family, or work responsibilities; and (3) avoid the “gotcha” strategy when a mistake is made by an opposing party or counsel; and (4) abstain from negative personal or otherwise disparaging comments. This list is not meant to be exclusive or exhaustive – the bottom line for all these “indicia” of the avoiding conflict mindset is that the attorney acting as a peacemaker is an erstwhile advocate for family or intergenerational healing and that this restorative approach can be consistent with the interests of the client.

 When elder law attorneys act as probate peacemakers or as elder/probate mediators, they bring their substantive knowledge of and familiarity with these preventive steps and techniques. This combination of substantive experience and the preventive approach to a problem or set of problems combine in a way that can help predict how a client and members of a family or another interested group might behave in the future. That can mean that an attorney serving as a peacemaker or as counsel to a disputing party can help ensure that the client has the benefit of strategic advice before future problems or troubles appear on the horizon. To the extent that a dispute is not definitively resolved by some process, or if related issues crop up, a peacemaker can be enlisted to draft an agreement that can guide the parties toward productive management of anticipated future disputes.

 If it is your desire that your final wishes be carried out without conflict or litigation, then you should seek the assistance of an attorney experienced in Probate, Estate Planning and Elder Law matters. He or she can guide you with regard to decisions and language that will make the transfer of your assets a peaceful experience instead of a stressful one.

If you have a question regarding Elder Law, Estate Planning, Living Trusts or Probate in the Huntsville area, please contact us at 936-295-6394 or visit our website. Call today and we will connect you with an experienced Elder Law and Probate Attorney. We can schedule you a face to face appointment to discuss your circumstances. If you have questions or are considering any aspect of your estate plan, probate, your health care directives, etc. we can help! Call us now at 936-295-6394 . We look forward to hearing from you and assisting you with any and all elder law and estate planning needs.

 Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

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New HIPAA Rule

Posted by on Sep 6, 2013 in Elder Care Law | 0 comments

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“THE LEGAL CORNER”

By Sam A. Moak

New HIPAA Rule

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

 The U.S. Department of Health and Human Services has adopted a new rule  concerning privacy and security for health information, to take into account changes that have occurred in health care since enactment of the Health Insurance Portability and Accountability Act (HIPAA) of 1996.  Some of the key features in the 563 page final rule are outlined below.

 Privacy notices given by covered entities, such as health-care providers and health plans, must now include a statement about a patient’s right to restrict the disclosure of his or her health information when paying out of pocket for the service.

 “Downstream” business associates of covered entities are also covered by the new HIPAA rule.  Thus, such subcontractors as billing and phone services, document and data storage companies, and other such entities whose functions involve the disclosure of protected health information are subject to liability for violations and the potential for agency enforcement action and penalties.  This aspect of the new rule was meant to prevent covered entities from effectively skirting their HIPAA obligations by farming tasks out to subcontractors.

 Before the new rule, a breach had to be reported to a patient if it posed a significant risk of financial, reputational, or other harm to the individual.  Now, if health information is compromised, a data breach is presumed, with the attendant notification requirements, unless there is a low probability that the protected information was in fact compromised.  Factors to consider as to whether a breach must be reported are the nature and extent of the information, the person to whom the data was disclosed, whether that person actually viewed it, and whether the risk was mitigated in some manner.

 While patients already had a right to a copy of their health records, the new rule changed the default form of production from a hard copy to an electronic copy when the information is maintained electronically.  Entities may charge a reasonable fee for providing the information, and now the information must be provided within 30 days of the request.

 While we have dealt with HIPAA for quite sometime now, I still review Medical Powers of Attorney or Powers of Attorney for Health-care that do not address HIPAA.  This could present a very difficult problem if a loved one is hospitalized and unable to direct their own care or authorize someone to do so for them, giving them authority to access any and all of their HIPAA protected health-care information.

 It is another example of why you should have an attorney familiar with this area of law review your incapacity documents.  Do not wait until it is too late to have them  updated.   The new final rule took effect on March 26, 2013, and compliance with all applicable requirements must occur by September 23, 2013.

 Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

 

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MULTIPLE PARTY ACCOUNTS

Posted by on Aug 16, 2013 in Elder Care Law, Estate Planning | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak

Multiple Party Accounts

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

I have found it is common for families to use multiple party accounts to assist in paying bills and transferring assets.  Multiple party accounts are important non-probate transfer mechanisms because these accounts are used widely, easy to understand, and inexpensive to obtain.  Therefore, in this week’s column I will discuss three of the most recognized types of multiple party accounts.

 The three most recognized multiparty accounts are: (1) the joint account, which may transfer ownership rights to the account’s balance to the surviving party; (2) the agency or convenience account, which does not transfer the account’s balance upon the death of one of the parties; and (3) the payable on death account, which causes the balance to belong to the surviving payees upon the death of the depositor(s).

These multiple party accounts are typically checking accounts, savings accounts, and certificates of deposit, but may also include brokerage accounts, investment accounts, and IRA’s.  They involve contractual arrangements for the deposit of money with financial institutions such as state or national banks, savings and loan associations, credit unions, and brokerage and investment companies.  The disposition of the funds remaining in these accounts upon the death of one of the depositors depends on the type of account, the account contract and the applicable state law.

A joint account is an account that is payable on request to one or more of two parties.  While all parties to a joint account are alive, the parties own the funds in the account in proportion to their net contributions unless there is clear and convincing evidence of a different intent.

 Unlike many states, the presumption in Texas is that an account in two or more names does not have the survivorship feature.  In fact, the presumption in Texas is that the funds pass into the deceased party’s estate.  However, it can pass to the surviving party if there is a written survivorship agreement, signed by the deceased party and that contains language expressly making the deceased party’s interest pass to the surviving party.  What language is sufficient to create the survivorship feature is determined by the Texas Probate Code and case law.

 A convenience account is an account established by a depositor in the names of the depositor and a co-signer.  The terms of the account must provide that the sums on deposit are paid or delivered to the depositor or to the co-signer “for the convenience” of the depositor.  The depositor is not considered to have made a gift of any interest in the account to the co-signer.  Additionally, any deposits to the account by anyone other than the depositor are considered to have been made by the depositor.  Thus, it appears that the depositor is the owner of all funds in the account.  However, the statute also states that “the making of a deposit in a convenience account does not affect the title to the deposit.  So, if the co-signer deposits funds into the account, it is unclear whether the co-signer has made a gift to the depositor or if the co-signer retains ownership of the deposited amount.  Both have the right to withdraw from the account as long as the depositor is alive.

 After the death of the depositor, then the entire balance remaining in the convenience account passes into the depositor’s estate.  The co-signer has no survivorship rights.

 A pay on death account is an account payable on request to one or more depositor during the depositors’ lifetimes and on the death of all of the depositors to one or more P.O.D. payees.  A written agreement signed by the depositor(s) and P.O.D. payee(s) is required.

 A P.O.D. account belongs to the  depositor or depositors during their lifetimes and not to the P.O.D. payee or payees.  If there are two or more depositors, during their lifetimes, rights between them are governed by the rules applicable to joint accounts and belong to the depositors in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.

During the lifetime of the depositor or depositors, a P.O.D. account may be paid, on request, to any depositor to the account.  No notice to or consent of the P.O.D. payee is required.  The P.O.D. payees have no withdrawal rights while any depositor is alive.

 On the death of the last living depositor, any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the original depositor.

 Common issues to all of these multiple party accounts are:

 effect of depositor’s incapacity;

rights of a living party’s creditors;

rights of a deceased party’s creditors;

stopping payment from a multiple party account;

effect of divorce; and

conflicting disposition by Will.

It is likely many of you have multiple party accounts.  While they can be useful tools in your estate plan, you should consult with your estate planning attorney to make sure they have the effect you intended and do not conflict with your estate planning documents.

 Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

 

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PLANNING TO LIVE LONGER

Posted by on Jul 26, 2013 in Elder Care Law, Estate Planning | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak 

PLANNING TO LIVE LONGER

 The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstance.

 A great deal of focus has been placed on  the importance of the changes in the federal estate tax laws; however, our ever increasing life expectancies should cause us to carefully plan for our futures.

 The number of individuals living over age 90 has tripled in just the past 30 years according to the U.S. Census Bureau.  This increase is not projected to slow down either.

 Issues like housing options, quality of care, caregiving, vulnerability and exploitation will have to be considered as we live longer.  Another key issue will be cognitive impairment illnesses of the aging population.   Many of us have loved ones or friends whom we have witnessed go through the costs and quality of life issues brought on by dementia.  You should talk to your family about these concerns, but most importantly, your estate plan should anticipate and address the variety of issues that dementia brings.

 Most people do not want to end up in a nursing home and certainly do not want to see their estates wasted.  There is a wealth of mis-information and many urban myths about government benefits.

The problem with traditional estate planning is that it has focused too long on how wealth should pass at death, ignoring the reality of how wealth often does pass at death and during life.  We live in an age in which there is an older generation with some wealth and a generation just below them that has largely failed to plan for their later years.  The tension between these two generations, and the unwholesome focus of the younger generation on the resources of their parents and grandparents is the source of much overseeking, many bad decisions and much misinformation.  A personal pet peeve of mine is the industry of professional exploiters (see older columns of mine on Snake Oil Salesmen and the Senior Consumer). These “professionals” put on “educational seminars,” offer free dinner or lunch, all with the purpose of causing fear and panic about the aging process in order to sell inappropriate and sometimes detrimental legal and financial products.

 What you need to understand is that decisions about protecting your assets and preparing for the quality of care in the future can’t be separated.  What the government pays for today is not particularly generous, and what the government will pay for in the future is speculative at best and frightening at worst.  Many worry about planning how the estate will be handled at death, without considering how property should be managed during periods of impairment.

 Many older folks turn to family members for assistance in their later years.  However, these arrangements are a minefield for family conflicts.  Questions about whether the care-giving child should get paid for these services or receive a supplemental share of the estate upon death are common issues of dispute among siblings.  You can avoid these issues with careful planning.

 We are all human and anyone is susceptible to a life altering accident or illness.  You should seek the advice of your financial planner and an attorney experienced in elder law for these events.  With careful planning you can live to enjoy, comfortably, the Golden Years.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

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