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Elder Law and Medicaid

Jeffry B. Foust - Elder Law

 

 

Texas law provides special rights for citizens age 60 and over. These rights are in addition to those enjoyed by all Texans.
(
§ 102.003 Texas Human Resources Code)

 

 

 

 Rights Of The Elderly

An excerpt from our Texas Code:

(a) An elderly individual has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of this state and the United States, except where lawfully restricted. The elderly individual has the right to be free of interference, coercion, discrimination, and reprisal in exercising these civil rights.
(b) An elderly individual has the right to be treated with dignity and respect for the personal integrity of the individual, without regard to race, religion, national origin, sex, age, disability, marital status, or source of payment. This means that the elderly individual:

  1. has the right to make the individual's own choices regarding the individual's personal affairs, care, benefits, and services;
  2. has the right to be free from abuse, neglect, and exploitation; and
  3. if protective measures are required, has the right to designate a guardian or representative to ensure the right to quality stewardship of the individual's affairs.

If you are a family member, or an elder, and are at the difficult point in time where you feel the need to have "The Talk", a meeting with our firm is a must.

Our firm offers guidance, support and advocacy in bringing legal remedies to the social, medical and financial concerns for our elderly clients and their families.  Our understanding of the special needs of the elderly will provide you access to our professional partners that provide financial, tax planning, counseling, geriatric and social services.  We will provide you knowledge of what specialized elder public and private programs are availbale to your family.

 

"Put it in the Will" 

Nuncupative or oral wills

 

A True Story - 

 

I have a saying at my office, "if it isn't in writing, it didn't happen."  Of course, with the prevalence of video cameras in public places and phone cameras, even hidden cameras, the saying is not completely true.  Still, I have had countless business and estate disputes in my office because someone did not get an agreement or promise in writing.  When it comes to the transfer of property upon death, your wishes must be written down in your Will and/or Trust.

 

Texas law requires that Wills be in writing and contain necessary language to be enforceable.  A friend of mine, whose case I was not the attorney in, has allowed me to share her true story.  She just lost her inheritance in a long court battle.  There never would have been a battle if her mother's true wishes were put into a proper and timely Will.

 

My friend, whom we will call LeAnne (named changed for privacy), moved from her home and life in another state to Texas to take care of her mother, who, at the time, had terminal cancer.  She spent day after day caring for her mother.  LeAnne has three siblings who would often visit and were supportive.  On several occasions, LeAnne's mother promised her that she and her daughter could have mother's house when she passed.  LeAnne took several videotaped conversations with her mother saying she could have the house.  LeAnne's mother also wrote several notes saying that LeAnne and her daughter could have the house to live in when she passed.

 

One day, while LeAnne was away, her brother came to the house with a lawyer and they drafted a Trust document and a Will that gave everything to all four of her children equally.  After the signing of the Trust and the Will, her mother said many times to LeAnne that she did not understand what she was signing and simply trusted her son.  Needless to say, when LeAnne found out about the Trust and Will, she confronted her siblings and showed them the video and notes, but they were unmoved. 

 

After Mom passed away, what ensued was a two-year court battle over whether the Trust was valid and whether LeAnne should get the house. Of course, the biggest problem was the written Will and Trust.  Trying to prove someone did not have the proper mental capacity to execute a Will or a Trust is a very difficult thing to do.  And what was so difficult for LeAnne to deal with was knowing that she had video and handwritten evidence showing Mom's real wishes.  As it is said, hindsight is 20/20. When LeAnne's mother, while of very sound mind, asserted that she wanted LeAnne and her daughter to have the home, Mom should have called an attorney to draft a proper Will.  The Will signing ceremony should have been videotaped and the Will filed with the county clerk.  Texas law does not recognize oral or videotaped Wills, and, if a court did accept one, it would be in very limited circumstances.  You cannot rely on a note or a video.

 

LeAnne did not have the money to hire a firm and put on a proper case. She did most of the legal work herself.  The siblings that were fighting her, by virtue of the Trust, had access to the estate money and could hire a prominent law firm.  LeAnne ultimately lost the house and she was forced to move out of the home.  The family won a judgment against her, essentially for the attorney fees paid by the family to the tune of over $90,000.00.  This money most certainly will come out of her share of the estate.

 

It is a classic case scenario that, when a parent becomes infirm, a sibling moves in with the parent to care for them.  Make sure, as a family, that the "caregiver" sibling is compensated through their estate distribution or in some other fashion.  LeAnne also could have entered into a contract for compensation with her mother as a caregiver, if she was qualified.  Put your wishes in writing in your Will or Trust.  If your parent promises you a specific gift, politely assert and remind your parent that it should be in their Will to be legally enforceable.  The Will can then be discussed with all the family members, and disputed issues can be resolved while the parent is healthy and of sound mind. Make certain your loved one's wishes are clear, and they are put in their Will. 
 

 "Take Care of Your Mother - or Your Mother May Get Taken"

Another True Story - 

Beth's mother, Ms. Tate, passed away and Beth had not spoken to or visited her mother in several years. When her mother died, Beth went by her mother's home and found that her mother's home was in a seriously dilapidated condition. Although Beth was aware her mother had a substantial amount of funds set aside, she was shocked when she discovered that she and her two sisters were not mentioned in her mother's will. Beth and her sisters received nothing from their mother's Estate, not her house or any of her personal property, not even a simple heirloom. All of her property went to someone else. As Beth would later discover, someone had been visiting Ms. Tate.

In the year prior to her passing, Ms. Tate's nephew and his wife began making frequent visits with her. During that time they influenced and maybe even deceived Ms. Tate into signing a new will and a new Power of Attorney. The new will did not grant any gifts to Beth and her sisters. The new Power of Attorney made the nephew the legal agent of Ms. Tate and authorized him to make financial transactions on Ms. Tate's behalf. They now could essentially do anything financially that Ms. Tate could do and were able to transfer Ms. Tate's funds and property. The nephew's wife understood the significance of a Power of Attorney (because she apparently had worked for an attorney at one time) and what kind of powers it granted, so the two were quickly able to transfer a substantial amount of Ms. Tate's funds and the ownership of Ms. Tate home to themselves. They then used Ms. Tate's funds to purchase new cars, expensive gifts for their children, and even a brand new home of their own.

By the time Ms. Tate passed away her estate had depleted significantly. Immediately after Ms. Tate died, the nephew submitted the new will to probate, and what was left of Ms. Tate's estate was given to the nephew and to Ms. Tate's two brothers. Beth and her sisters were left with nothing.

An empty toothpaste tube is a good illustration of the unfair and often times illegal transfer of someone's estate. When you hold an empty toothpaste tube, you know there is no chance that you are going to get the toothpaste back in the tube. This toothpaste illustration applies to Ms. Tate's estate and so many others. The nephew and his wife had completely depleted Ms. Tate's estate by the time Beth became aware of what happened to her mother. Beth was now faced with challenging the capacity of her mother to execute a will or sign a Power of Attorney. It would also be extremely difficult to undo any transaction that was done under the Power of Attorney. What further complicated matters was that neither Beth nor her two sisters had any funds available to pay an attorney to contest the validity of the will or to challenge the Power of Attorney. The nephew and his wife had transferred to themselves enough funds to hire a large law firm to draft the new will, and also defend against any will contest or challenge to the authenticity of the documents signed by Ms. Tate.

It would be difficult to prove, now that she is gone, that Ms. Tate did not intend to give the nephew and his wife practically everything she owned. And of course, the position of the nephew and his wife is that they were there taking care of her and were entitled to compensation. However, this explanation begs the question, why was her home in such a dilapidated condition at the time of her death? After her mother died, and Beth was able to visit her mother's home, she found the condition was so bad that squirrels had been living there. In her old age, Ms. Tate was not taken care of but rather taken advantage of. Her nephew and his wife clearly understood what they could get away with. What they did is morally wrong and possibly criminal. However, providing the necessary proof of their wrong doing would be very difficult and costly.

Perhaps it is the unpleasant subject matter of death and dying - writing your will is one of those things that can always be postponed until some "later date down the road." Whatever the reason, people too often overlook planning for their future care, should they become incapacitated, or for the appropriate distribution of their property when they pass away. Failing to plan ahead for yourself or your family can have dire consequences for everyone involved. It is critical that you encourage your loved ones to record their wishes in a will and/or trust to protect and preserve their property. You must be careful about who is appointed as your parent's agent with "power of attorney." This will prevent unscrupulous people from hijacking your parent's estate and/or your future inheritance. Proper Estate documents and planning provides protection against unfortunate situations like Beth has faced. You must be proactive in protecting your family's interests.  And....call or visit your mother.

Our firm can assist you with these extraordinarily difficult topics regarding the needs of the elderly and their family members.

 

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