Category: Elder Care

Houston Elder Lawyer Answers, “When should I start planning for long-term care?”

One of the most frequently asked questions our Houston elder lawyers receive is, “When should we start planning for long-term care?” The short answer is, “Long before you need it!”

When it comes to your home, your health and your finances, you want to be in the driver’s seat. That is why it is so important to plan now for any future care you may need. Even if you have a nice nest egg set aside for retirement, it could quickly become cracked and scrambled if you require a stay in a nursing home or need assisted living. A nursing home stay could easily cost you $6,000 to $12,000 per month. How long would your money last at that rate?

Many people realize that long-term care is a rising concern for elderly individuals. While it is true that most people living in long term care facilities are older, planning for long-term care is not something you should put off. At any point, any one of us could require long-term care. Just one accident could place you in long-term care facility for the reminder of your life.

Unfortunately, we have seen families forced into debt and even bankruptcy to meet the needs of their loved ones. This is why we discuss the need for long-term care insurance with all of our clients. Additionally, we make sure that you have all of the proper legal documents such as powers of attorney and healthcare directives in place in the event something happens to you and someone has to step in and make financial and medical decisions on your behalf.

A solid Medicaid Plan and/or Irrevocable trust may also be a wise idea in order to protect your family’s finances from the grasp of long term-care facilities, without jeopardizing your loved one’s access to benefits such as Medicaid down the road.

When setting up your plan, it is important to meet with an attorney that not just handles estates, but also elder law issues, in order to create a strategy for long-term care that will protect your family and provide total peace of mind.

If you have any questions about a long-term care plan or would like to discuss the documents that you need, contact our Houston elder attorneys at (281) 218-0880.

Mom Might Have Dementia, Can She Still Write a Will in Texas?

If your elderly parent is becoming more forgetful or is demonstrating other unusual behavior, you should get them to a doctor right away to be checked for dementia. More than 3 million cases of dementia are diagnosed each year and is most prevalent among people 65 years old or older. Dementia is often overlooked at the beginning because sometimes the symptoms are very vague, but if caught early, there are steps that you can take to improve your loved one’s cognitive health.

Unfortunately, many people fail to put an estate plan in place and only take action during a medical crisis or after a diagnosis such as dementia. In some of those cases, it is too late due to the client’s diminished capacity. You should not, however, assume that it is always too late.

In order for the legal documents to be valid you must be able to prove that the signer had mental capacity at the time they signed. So even if an individual is suffering from dementia as long as they still have periods of lucidity they may still be competent enough to sign a will in Texas.

The following criteria must be met in order for an individual to be considered mentally competent:

  1. They understand the nature and extent of the property that they own.
  2. They remember who their relatives and descendants are and are able to select who should inherit their property.
  3. They understand the function of a will.
  4. They understand how all of these things are put together to form and estate plan.

It is extremely important that all 4 of these criteria are met when executing the will or you could be leaving the door open for other family members to contest the will. If the will is successfully contested it will be considered invalid and the estate would have to pass through the state’s intestacy laws. Or, if there was a prior valid will, that would be used to settle your parent’s estate. If your parent is showing early signs of dementia, call our office right away for a free consultation. We can make sure that your parent’s wishes are known and documented in a way that will avoid a court challenge.

Alzheimer’s Patient Spoon-Fed Because Directive Wasn’t Specific

In 40 years, Bill Harris built up a lifetime of memories with his wife, Nora, but since she was diagnosed with early onset of Alzheimer’s seven years ago, things have changed.

“She doesn't really make words sometimes,” said Harris in an article on KGW.com entitled “Man says state ignoring wife's wishes in advance directive.” 11-07-16

For Harris, this tough situation got even more difficult with the decision of a southern Oregon judge this summer. The judge, in effect, “condemned her to ride out Alzheimer’s to the bitter end,” said Harris. He says it’s exactly what she didn’t want.

When Nora was told of her diagnosis, she completed an advance directive to be certain that her illness wouldn’t be prolonged. She believed when it wasn’t mechanically possible to eat by herself then she wanted to let nature take its course. However, now she’s stopped eating by herself and is being spoon-fed at a nursing home because, according to the judge’s ruling, her advance directive wasn't specific enough.

Still, the advance directive forms usually only cover getting fed through a tube, creating a conflict between two laws. An advance directive allows you to elect what happens if you become incapacitated, but the state law is there to make sure that care facilities do their job.

Advanced directives should be as specific as possible.

“What they did was basically sentence her to have to experience the full gamut of Alzheimer's,” said Harris. He said he also wishes the judge would have ruled in the spirit of the law and not the letter.

The advance directive law has limitations, but the legislature could amend the law so someone can make decisions on a loved one's behalf. However, now the best option is to be as specific as possible when filling out an advance directive.

Reference: KGW.com (Sept. 19, 2016) “Man says state ignoring wife's wishes in advance directive”

Saving the Home with Long-Term Health Care Demands

The largest asset most people have is their family home. If a senior is in a situation where his or her long-term care insurance is exhausted and the other assets are used to pay for care, how does one protect the home from being taken?

Long-term care insurance is important; however, it’s also critical to review and revise your financial and estate plans regularly as your situation changes, according to NJ 101.5’s article “Medicaid and protecting your home.” 10-27-16

Speak with an experienced estate planning or elder care attorney to plan for your individual circumstances. You should also have your will, general power of attorney, advance health care directive or other estate planning documents reviewed or drafted.

As far as how Medicaid works, it has both income and asset limitations that require a recipient to become impoverished to qualify. For Medicaid eligibility, your primary residence is exempt provided you or your spouse live in the house or intend to return to the house to reside. That said, Medicaid will have an automatic lien on any interest in a residence in your name equal to the amount of Medicaid funds you receive. The program will execute on that lien when the home sells or upon death—unless the recipient’s spouse remains an owner of the residence.

To keep people from giving away their property to qualify for Medicaid, there’s a penalty for the transfer within five years of applying for Medicaid. The penalty is calculated by dividing the value of the assets transferred by the state’s Medicaid average monthly cost of a nursing home. The penalty period starts only after an individual enters a nursing home and would otherwise be eligible for Medicaid, not at the time of the transfer. During that time, Medicaid won’t pay for the nursing home. Private funds have to be used.

There are exceptions for undue hardship but these are rare. One exception is for the transfer of a residence to a child who has lived in the home for at least two years before the applicant enters a care facility and who during that period provided the applicant with care and services that enabled that person to live at home. In that situation, the transfer of the house to the child doesn’t result in a penalty. The house won’t be subject to a Medicaid lien.

Similarly, gifts and sales that are less than fair market value within five years of applying for Medicaid are subject to a penalty. But before a transfer is made, there are also income tax considerations which may significantly impact both the transferee and the applicant. If there is no mortgage, another option is a reverse mortgage, which lets you withdraw the equity in the property with the loan being paid back at death or once the property is permanently vacated.

Medicaid is a complex and constantly changing area, so talk with an experienced elder law or Medicaid planning attorney who is current on all the rules that may impact your decisions.

Reference: NJ 101.5 (September 12, 2016) “Medicaid and protecting your home”