Elder Law and Guardianship Update

Elder Law? No, but its pretty

As lawyers, the bar makes us take "Continuing Legal Education" or CLE every year so, in theory, we stay up to date on changes in the law. One of classes I try to take every year is the Advanced Elder Law and Guardianship seminar, and this year didn't disappoint. 

Here were the highlights and some important take-aways:

1. The Probate Code is gone, so you better check and make sure the new Estates Code says what you think it says. It probably does, but just check. It  is also SLIGHTLY better organized, with most relevant sections clumped together so you don’t have to jump around as much.

2. MEDICAID

a.       Lady Bird Deeds still work, but record them early, and don’t include a bunch of flowery language.

b.      Disclaimed amounts are countable resources: Government’s position is “if you don’t need them, well you don’t need our help either.”

c.       Have substantial assets and just one spouse that needs Medicaid? The “community” or other spouse can keep upwards of $100k if you do it right.

d.      Estate recovery/MERP: There are a ton of exemptions. Use them. Also, they are (generally) not filing probates, so take that as you will.

4. VA Benefits

a.       Are not the same as Medicaid: you can make all the transfers you want with no penalty periods to qualify.

5. Trusts

a.       Special Needs and other Trusts: Transfer to a Trustee, not a “Trust”, and if anticipating the need for government benefits one day, make sure distributions are completely discretionary. It is tough to decant a trust with mandatory distributions.

b.      Concerned about remainder beneficiaries causing issues? Non-testamentary powers of appointment are a good solution.

6. Elder Abuse, Adult and Child Protective Services

a.       Depending on the circumstances, it can be a felony (and at least a misdemeanor) not to report abuse. Don’t wait!

7. Real Estate Transfers

a.       All Title Companies and underwriters are not created equal: if one won’t accept your deed or affidavit of heirship, just try another.  You might be surprised at the results.

8. Special Needs Children

a.       If getting a divorce, you can request “spousal support” that is essentially care for a special needs child that will remain in the home, even past his/her 18^th birthday.

9. Contested Guardianships

a.       § 1155.054 of the Estates Code has adopted a “loser pays” rule if it can be shown that a contest was in bad faith or without just cause: fees, the ad litem, costs, EVERYTHING. It must be specifically plead though. 

Special thanks to the Honorable Steve King (Tarrant Co. Probate Court #1) for running a good program, and it was good to finally meet the Honorable Guy Herman (Travis Co. Probate Court #1), who put on a solid presentation as well. Both of these judges put out great articles and their websites are more than helpful.