Estate planning is an essential part of safeguarding your wishes for you property, assets and health care. Every adult needs to make decisions regarding:
- Powers of attorney for finances and health care
- A will outlining distribution of property and assets
- A funeral representative
- Living wills and end-of-life care
- Living trusts and possibly Special Needs trusts
A NAELA attorney is specially equipped to help you execute your plans so that you and your loved ones are protected.
Planning for long-term care, Medicare and Medicaid
Elder law and special needs planning attorneys help with navigating the confusing and complicated rules regarding Medicaid and Medicare. NAELA members will assist you and your loved ones in preserving your assets and minimizing the impact of Medicaid estate recovery.
Financial Powers of Attorney and Health Care Powers of Attorney:
In the event that you're unable to make decisions about finances and property, this document allows you to designate a person you trust to handle those matters. You're able to choose how much power your agent has and what they can do with your assets.
Like financial powers of attorney, health care powers of attorney is a document that specifies who makes healthcare decisions on your behalf if you are unable. Generally, two health care professionals determine if you are not capable of decision-making.
Conservatorships and Guardianships:
In order to avoid court and protect your wishes it's imperative to plan your estate and designate powers of attorney before it's too late. If you become legally incapacitated and have no agent appointed:
- A conservatorship is established by a probate court judge to handle your finances. The judge decides who your conservator is and what they have the power to do.
- A guardian makes decisions about your health care and is appointed in court by a judge.
HIPAA authorizations allows your representative to have access to your confidential medical information so he or she can talk to your doctors, access medical records and make informed decisions about your care and treatment. HIPAA authorizations also allow your patient advocate to release your confidential medical information to others, such as other health care providers or health insurance companies.
Living Wills/Advance Directives:
Living will provisions, also called advance directives or advance medical directives, specify your wishes regarding end-of-life care when you can no longer speak for yourself. This includes the withholding or withdrawing of medical treatment at such time.
A will is a set of instructions that are carried out after death. Wills designate who receives property and assets and a personal representative. Your personal representative’s duty is to preserve and protect the assets of your estate, pay all creditors and estate expenses and then distribute the remainder in accordance with your wishes. Your will:
- Only governs assets or property that are owned in your sole name and not joint property. Joint property goes to the surviving owner. Similarly, with beneficiary or payable/transfer-on-death designations, the person whom you designate becomes the owner of the property.
- Not give anyone the authority to transfer assets until it goes to probate court. Before your personal representative can act, he or she must be appointed by the probate court. Your personal representative’s duty is to preserve and protect the assets of your estate, pay all creditors and estate expenses and then distribute the remainder in accordance with your instructions you leave in your will.
The person you choose who makes decisions about your funeral arrangements and the handling, disposition, or disinterment of your body, including decisions about cremation, and the right to possess your cremated remains. If you do not designate a person, then all persons at the same relationship level, such as the kids, would have an equal say and would have to agree. Sometimes, having one person in charge can make things easier for your loved ones.
Medicaid Estate Recovery Program (“MERP”):
On March 1, 2005, Texas implemented the Medicaid Estate Recovery Program in compliance with federal Medicaid laws. The Texas Department of Aging and Disability Services (DADS) manages the program.
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 under the following programs:
- Nursing facility care (nursing homes)
- Care Facility for Individuals with an Intellectual Disability or Related Condition (ICF/IID)
- and Community-based Services (HCS)
- Living Assistance and Support Services (CLASS)
- Home Living (TXHmL)
- Waiver Program (CWP)
- Blind with Multiple Disabilities (DBMD)
- Based Alternatives (CBA)
- +PLUS (long-term care services)
- Care Management (ICM)
- Attendant Services (CAS)
MERP also affects the costs of certain hospital and prescription drug services you receive. Primary Home Care (PHC) is not affected by MERP.
Revocable Living Trusts:
A revocable living trust is a document with instructions to manage and distribute your property both during your lifetime and after your death. You, as trustmaker, create and control the trust. You, as trustee, while you’re alive and well, manage the trust property. You as beneficiary receive trust property when and how you determine. In the event that you become incapacitated, your chosen successor trustees manage your trust property on your behalf.
Special Needs Trusts:
A special needs trust ensures that government benefits are still available despite asset amount. There are provisions in both federal and state statutes and regulations that are friendly to special needs individuals. If you make a gift or leave an inheritance to your special needs loved one in what is generally called a third-party special needs trust, what you leave to your loved one will not be counted against him or her for these governmental benefits, such as Supplemental Security Income or Medicaid.
Your special needs loved one may have already received a gift, inheritance or a personal injury award that has disqualified him or her from governmental benefits. You can set up a certain special needs trust called a Medicaid Pay-Back special needs trust so that your loved one does not have to spend down all of those assets before he or she can reapply for governmental benefits. The pay-back provision provides that, after the death of your special needs loved one, the remaining assets in the trust are used to pay-back or reimburse the governmental program for the lifetime benefits paid for the benefit of your loved one.