Elderly Law Issues
Many people think that estate planning is only for the elderly or the wealthy, but have you thought about what would happen if you unexpectedly died? Do you really want to leave you wife and kids to figure out how to manage your affairs while they are grieving? If you have a will, then your family has options on how to proceed and it makes the legal process less trying on them. It is even a bigger issue when you are in a blended family. Imagine your minor children living with your ex-spouse becoming a one-half owner of your house with your current spouse. This in it self creates drama for all those involved when it could be avoided with a simple document expressing your desires.
Many people believe that having a will makes their family go through the costly process of probate, however, in Texas the process is not costly and its a lot easier than letting Texas laws decide who gets your stuff.
How does the probate process work? After you pass away, your executor, who you named in your will, will collect and distribute the assets to your beneficiaries during a process known as probate. This will include settling any debts you have with creditors. The process is inexpensive, simple and non intrusive into your loved ones lives.
What happens if you don’t have a will?
- If you are married and all your kids are from your spouse? Your spouse gets your community property and your spouse splits your separate property with your kids.
- If you are remarried and have kids from another marriage? Your new wife and your kids share all your property. In this scenario it is common for your wife and kids to become joint owners of your home.
- If you are single with kids? Your stuff goes equally to your kids and if one is not living then their share goes to their children (your grandchildren from that kid).
- If you are single without kids? Your stuff is divided between your parents, if one of them is deceased then that parent’s share goes to your siblings.
So you can see how the laws in Texas might not be how you want your things to be distributed and having a will leaves the decision solely up to you! We can always find a distant relative to be your heir, but do you really want someone else deciding? So get a will today! My office can help, just call 817-336-2400 and ask for Patricia Cole.
After losing their spouse, many people don’t contact an probate attorney because they believe that everything just goes to them immediately. But this way of thinking may cause more harm down the road. Nothing in life is absolute except death and taxes, so at least consult an attorney to make sure there is nothing you should do or to find out what your time limits are with regards to probate. Here are a few cases where waiting caused more problems:
- Jane Doe dies and her husband Don doesn’t probate her will. Four years pass, and then Don Doe dies. Since Jane’s will was not probated within the 4 year statutes the only alternative is to probate as “muniment of title” to clear title to the house or cars. In this case there is no formal probate of Jane’s estate which may create problems with certain asset at financial institutions and may force the beneficiaries to pay all debts prior to probating.
- Jane Doe dies and her will isn’t probated because her husband, Don Doe, doesn’t want to waste his money. Years later Don learns that there are assets in both of their names that need to be probated. Jane’s will can not be probated after 4 years because Don is the one at fault for not probating. Don goes to an attorney and finds out that since Jane had children from a prior marriage, they take her 1/2 instead of him.
- Sarah Jones dies and she does not have a will. Four years pass, and Mike Jones tries to sell their house. Just prior to closing on the house, Mike finds out that the house is still in both his and Sarah’s name. Mike contacts an attorney to probate and must wait more than 30 days to get the probate finalized, so he loses the sale on the house.
As you can see there are many different situations that warrant consulting an attorney to ensure probate is not necessary after the death of a loved one. While there are many different reasons that may take you into probate court, there are ways to avoid probate court such as:
When there is a will:
Muniment of Title – while this process requires you to file in probate court, you are not opening a formal administration so once the court signs an order you are done with the probate court. So if you find that all the deceased person’s unsecured debts are paid and you just need to transfer title to the assets, have your attorney probate the will as a “muniment of title” which transfers title only and does not open a formal estate.
When there is no will:
Affidavit of Heirship – when there is no will, there is an informal process of having an “affidavit of heirship” prepared by an attorney and filed in the county real property records. This is not a costly process and it will benefit the parties in the long run. Don’t try to do one yourself, as mistakes will end up costing more in the long run. Do this now rather than later because witnesses may die, move away, not remember, etc. This document will clear up title to property and vehicles so that the parties can move forward in life and not be held back when trying to sell such assets.
Determination of Heirship – This process is similar to the Affidavit of Heirship above, but it involves going to the probate court, having them appoint an attorney ad litem to verify the heirship information and signing an order on who the heirs are in an estate. This process may be required of certain financial institutions that do not want to rely upon a “Affidavit of Heirship” and who may want the Judge to make a formal finding.
Small Estate Affidavit – This process is for very small estates under $75,000.00 (not counting exempt assets) or when trying to transfer the decedent’s homestead to their spouse. The form is prepared and filed with the probate court. The judge will then approve the Small Estate Affidavit to allow the transfer of assets to occur. Keep in mind that this form will not transfer title to real property (other than the homestead), so if there is no spouse (so no homestead) or other rental real estate then this form won’t work.
On the death of the husband or wife, leaving a spouse surviving, the homestead shall descend and vest in like manner as other real property of the deceased.” TX PROB CODE § 283. Also, the surviving spouse is entitled to retain a constitutional survivor’s homestead right for life or for so long as the survivor elects to use the homestead. This right is not affected by the deceased spouse conveying the property to a third party through their will.
Here are a few questions which are regularly asked with regards to surviving spouse’s homestead rights:
1. Can the deceased spouse’s administrator force the sale of the house?
Constitutional rights protect a homestead against forced sale and partition so long as the surviving spouse chooses to use and occupy the homestead. TX PROB. CODE § 284.
2. Does the surviving spouses rights end when move out of the property? Have they abandoned their homestead rights?
The surviving spouse’s right to occupy or use the homestead for life or for so long as the surviving spouse chooses to do so. It is not required that the surviving spouse continuously reside in the property to be considered as using it.
3. Who is responsible for maintenance on the property?
The surviving spouse will be responsible for making repairs and generally maintaining the property, but the duty to repair does not go so far as to require that the property be maintained in the same condition that existed when the homestead right was originally established.
4. Who is responsible for the mortgage on the property?
The spouse is responsible for the mortgage interest and the heirs/beneficiaries is responsible for the mortgage principal. A purchase money lien is not subject to the homestead exemption, thus the property could be foreclosed upon default. TX PROP CODE § 41.001(b)(1).
5. Who is responsible for the insurance premiums on the property?
The surviving spouse is not responsible to insure the property against loss. Even if the surviving spouse did insure the property, the insurance proceeds upon fire or damage would be made to the surviving spouse and not to the heirs/beneficiaries. The heirs/beneficiaries (children) would be responsible to carry insurance on the property to preserve their asset.
6. Who is responsible for paying the taxes on the property? The heirs/beneficiaries are usually responsible for all tax payments, however, if the spouse or minor children retain a homestead right then they would be responsible for the property taxes. The homestead is not exempt from forced sale to pay delinquent taxes. TX PROP CODE § 41.001(b)(2).
Disclaimer: The content of this article is provided for informational purposes only and does not constitute legal advice.
I was recently asked a specific question as to how the Transfer on Death deed affects the spouses homestead rights.
Example: A party is married and they execute a transfer on death deed to their children on their separate property which is their homestead.
The deed would not displace the spouse at death because the homestead right is attached to the separate property and community property. Therefore, while the children might own the property upon their parent’s death, the spouse has the right to live in the house.
The Texas Medicaid program pays almost half the cost of all nursing home and other long term care expenses. So in March of 2005, Texas implemented the Medicaid Estate Recovery Program (MERP) to comply with federal laws. This program allows the state to file a claim against the estate of a deceased Medicaid recipient, age 55 or older, who received payments for certain long-term care services. Claims can include the cost of services, hospital care and prescription drugs paid for by Medicaid. However, the state will not file claims in the following situations:
a) where there are estates valued less than $10,000,
b) where the costs were less than $3,000,
c) where the cost of selling the property would be result in no value.
The state will not file a claim when there is a surviving spouse, there is a surviving child under 21 years of age, there is a child who is blind or totally disabled, or where there is a an unmarried child living in the Medicaid recipient’s homestead for at least one year prior to the death. The state also allows a hardship waiver to be filed in certain situations.
The State will not collect certain types of assets that fall outside a person’s estate. Therefore it may be necessary to do your estate planning with consideration given to Medicaid rules.
The personal representative of an estate (executor or administrator) is required by law to give the State of Texas notice of Medicaid recipient’s death thereby allowing the state to file a claim. Such a claim by the State of Texas is a Class 7 claim which is paid after funeral bills, administration expenses, secured claims, child support, taxes, and it is paid before all other creditors and before the beneficiaries are compensated.
The Department of Aging and Disability Services administers the MERP and they provide a wonderful guide for those with additional questions.
Earlier this month, the news reported on a 911 call that was taken by a nurse in California who refused to give emergency CPR assistance to a dying senior in her care. The refusal of this nurse to assist a dying resident is nothing less than shocking, however, the facility was within its rights to refuse care.
In Texas, facilities, even licenses facilities such as those regulated by Adult Protective Services, have the option of not providing CPR. However, they are required to notify individuals during the admissions policy process that they will not administer CPR.
The question is whether notifying people upon admissions is reasonable. It is likely that facilities around the state have a form that is signed during admissions stating they are aware of the policy of the facility. However, during the admissions process, there are tons of documents to sign and many people do not even read them. Does this constitute notice?
Does the nurses refusal to administer aid constitute a criminal case in Texas? Failure to stop and render aid (FSRA) is governed by Chapter 550 of the Texas Transportation Code. The penal code typically governs criminal offenses resulting in possible confinement and a conviction for FSRA can result in jail time, probation and a fine. However the Texas nurse is not likely guilty of FSRA because the rules are pretty clear that the facility is not required to provide CPR. If this were you or me, we would be required if we knew CPR. Funny! So beware of the facilities policy before you place your love one in a senior living facility!
This is a common question I get asked by a variety of different types of clients. The simple answer is YES! A living will is not really a will, but is a physician’s directive (also known as an advanced directive or Do Not Resuscitate). An advanced directive is governed by the Texas Health and Safety Code to allow people to choose what type of care they want if they need life-sustaining treatment. I believe that everyone should have a Physician’s Directive to ensure that they get to make the decisions about life support and not burden their family with such decisions.
Arlington police have confirmed that the body found on January 5, 2013 was that of Maria Arrocha, an Alzheimer’s patient who was reported missing in December. The Tarrant County Medical Examiner ruled that Maria Arrocha died from exposure to the elements. Arrocha was found near the 1500 block of E. Abram Street near Stadium Drive in east Arlington. Officers were searching for Maria Arrocha who has been missing since Dec. 18, said Arlington police Sgt. Christopher Cook.
More than 5 million Americans have Alzheimer’s or similar dementias, and that number is expected to rise rapidly as the baby boomers age. The Texas adult population with disabilities has grown to 1,683,350, which is a 300,000 jump in the last 10 years. As more and more of our citizens, reach retirement age there are going to be more dementia related problems.
Therefore, both the Texas House and Senate 2013 budget plans include $5.2 million for the Darrell K Royal Alzheimer’s initiative in 2014. The private fund, announced last year to spur Alzheimer’s research, was named for the iconic University of Texas football coach who died in November after living with dementia for several years.
One of the largest burdens on American’s health care system is caused by Alzheimer’s disease and other related dementia. Currently over 5.4 million people are living with the disease and more than 15 million Americans are caring for persons with Alzheimer’s and other dementias. Alzheimer’s disease is the sixth-leading cause of death in the US and the ONLY cause among the top 10 that has no cure, prevention treatment or can even be slowed. Is Alzheimer’s our new Cancer?
A strategic plan is being developed by the Journal of Alzheimer’s Association. States across the country are vamping up their APS departments, elderly abuse divisions of district attorneys offices are popping up, and drug companies are trying to find cures, ways to predict the disease and even ways to slow the disease down.
The pharmaceutical company Eli Lilly & Co. show promise with new experimental Alzheimer’s treatment due to decline of cognition in some patients. Read the Article. Researches find promise in attacking a key building block of the Alzheimer’s disease. Read the Article. TauRx Therapeutics is conducting a clinical trial on a new treatment for Pick’s Disease (a form of Dementia which is similar to Alzheimer’s. Read the Article.
I. WHAT IS A GUARDIANSHIP?
A. Basic Definition A guardianship is a Court supervised procedure where the Court gives one person the legal authority to make personal or financial decisions for a person who can no longer make such decisions for himself or herself.
B. Incapacitated Person A person for whom a guardianship is necessary is known as an “incapacitated person” (“IP”) which is defined in TPC 601(14) to mean a minor or an adult individual who, because of a physical or mental condition and is substantially unable to provide food, clothing or shelter for himself or herself; or to care for the individual’s own physical health; or to manage the individual’s own financial affairs.
C. Policy – Purpose of Guardianship Unless a Court determines that a guardian with full authority over an IP is necessary, the Court should limit the authority of the guardian so that it is the least restrictive authority possible. Section 602 of the TPC provides that a court may appoint a guardian with full authority over an IP; or a court may appoint a guardian with limited authority over an IP: as indicated by the incapacitated person’s actual mental or physical limitations, and only as necessary to promote and protect the well-being of the person. Except for minors, the Court may not use age as the sole factor in determining whether to appoint a guardian for the person. In creating a guardianship that gives a guardian limited power or authority over an IP, the Court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person.
D. Guardian A guardian is the person who accepts the Court’s appointment to be responsible for making decisions for the IP. A guardian has only those powers specified in the Order Appointing Guardian. Generally, two types of guardians exist:
1. Guardian of the Person – A guardian of the person has the right to have physical possession of the IP and to establish the IP’s legal domicile; duty of care, control and protection of the IP; duty to provide the IP with clothing, food, medical care and shelter; and power to consent to medical, psychiatric, and surgical treatment other than the in-patient psychiatric commitment of the IP.
2. Guardian of the Estate – A guardian of the estate of the IP has the following powers and duties to possess and manage all property of the IP; to collect all debts, rentals or claims that are due to the IP; to enforce all obligations in favor of the IP; and to bring and defend suits by and against the IP.
II. WHEN IS A GUARDIANSHIP NECESSARY?
A. Common Situations mental retardation, Alzheimer’s dementia, multi-infarct dementia, Down’s syndrome, Parkinson’s disease, closed head injuries, chronic mental illness, excessive short term memory loss.
B. Guardianship Not Used treatable mental illness, drug addiction, alcoholism, homelessness, spendthrifts, persons receiving only social security benefits (no Guardian of the Estate is necessary).
C. Less Restrictive Alternatives Court Investigators are to investigate the circumstances of each application to determine if a less restrictive alternative to guardianship is available. In counties without a Court Investigator, the attorney ad litem for the IP should examine these alternatives. A list of some of the most common Less Restrictive Alternatives is attached to this paper.
III. HOW DOES ONE GET A GUARDIANSHIP STARTED?
A. Courts Statutory Probate Courts, County Courts at Law and County Courts (in that order) have jurisdiction of guardianship cases.
B. Attorneys Most Courts will allow only attorneys to file a guardianship application. In an ideal situation, a concerned family member will contact an attorney to file an application to be appointed as guardian of an IP.
C. Court Initiated Guardianships The Texas Probate Code provides that “if a Court has probable cause to believe that a person domiciled or found in the county in which the Court is located is an incapacitated person, and the person does not have a guardian in this state, the Court shall appoint a guardian ad litem or a court investigator to investigate and file an application for the appointment of a guardian of the person or estate, or both, of the person believed to be incapacitated.”
In Tarrant County, the Courts require an information letter and a doctor’s letter to establish probable cause. If the IP’s incapacity is mental retardation, the Court must be provided with a Determination of Mental Retardation or “DMR” pursuant to §687(c) of the Texas Probate Code. This section states that if the basis of the Proposed Ward’s incapacity is mental retardation a physician or psychologist shall conduct an examination according to the rules adopted by the Texas Department of Mental Health and Mental Retardation and shall submit written findings and recommendations to the Court. This report must be based upon an examination conducted not earlier than twenty-four months before the date of a hearing to appoint a guardian for the proposed ward. Unless the IP is in imminent danger, Court Initiated Guardianships take at least 4 to 6 weeks from the date the Court receives the proper letters.
D. Social Worker Involvement
1. Adult Protective Services If there is concern that an adult is being abused, exploited or neglected, Adult Protect Services should be called (1-800-252-5400). APS sends a worker to investigate. If APS believes a guardianship is necessary, the worker will take a doctor to examine the IP. If no emergency action is necessary, APS should make a referral to the Texas Department of Aging and Disability Services for a guardianship investigation.
2. Nursing Home and Hospital Social Workers Social Workers at nursing homes and at hospitals have also used the court initiated guardianship procedure to begin the guardianship process for clients or patients who are IP. Hospital discharge planners should determine if the patient is an IP as soon as possible since the procedure may take a while. Stating that the IP will be in imminent danger when discharged is not considered imminent danger by most courts.
E. Guardian Appointment Process
1. Application for Guardianship is filed by a private attorney, guardian ad litem or court investigator. Only attorneys can file applications.
2. The Sheriff or Constable personally serves the IP with a copy of the Application.
3. The Court appoints an Attorney Ad Litem to represent and advocate for the IP.
4. The known relatives of the IP must receive statutory notice of the application.
5. Unless the application is for the appointment of a temporary guardian, the guardianship cannot be established until the Monday following ten days from the date the IP is personally served.
6. The Attorney ad litem must personally visit the IP and determine if the IP wants to contest the guardianship.
7. The applicant’s attorney must file a doctor’s letter with the court which states that the IP is incapacitated and generally describes the nature of the incapacity.
8. A hearing date is set with the Court. The IP must attend the hearing unless the Court determines that it is not in the best interests of the IP to attend.
9. The Judge or jury hears testimony and decides if a guardianship is necessary, what powers the guardian should have, how the IP’s rights should be limited and whether the person seeking to be appointed guardian is suitable.
10. The Judge then signs an Order Appointing Guardian. The Guardian must file an Oath and Bond in order to qualify. The Clerk then issues Letters of Guardianship to the guardian.
IV. WHO WILL SERVE AS GUARDIAN?
Statutory Priority Texas Probate Code, Section 677 provides a legal priority as follows:
1. a person selected by IP on a declaration of guardian;
2. IP’s spouse;
3. nearest of kin;
4. any suitable person.
V. GUARDIANSHIP MONITORING
A. Annual Reports A guardian of the person is required to file a guardian of the person report each year concerning the IP’s mental and physical condition and stating any change of the IP’s or guardian’s residence. A guardian of the estate is required to file an annual account stating all receipts, disbursements, cash on hand, and assets being administrated. Failure to file either of these reports may lead to fines and/or removal.
B. Court Visitor Program Each statutory probate court is required to establish a Court Visitor Program. As a part of this program a volunteer makes an annual visit on each IP who is the subject of a guardianship. The Court Visitor personally visits the IP and the guardian and reports his or her findings and conclusions to the Court concerning the IP’s social and intellectual functioning as well as living conditions. If the Court Visitor recommends an increase or decrease in the guardian’s powers or removal of the guardian or guardianship, the Court will appoint a Court Investigator or Guardian ad litem to investigate, and, if necessary, to file a petition to modify the guardianship order or to remove the guardian or guardianship.
C. Annual Determination Each Court is required to make an annual review and determination of whether a guardianship should be continued, modified or terminated. In making this annual determination, the Court reviews the Court Visitor report and the guardian of the person report.