Elder and Disability Law Planning & Strategies

     Member-National Academy of Elder Law Attorneys,  Inc.                                    www.texaselderlawattorney.com

Richard M. Barron Attorney at Law 209 E. Main St. Whitesboro, Tx. 76273 903-564-3663 or 940-612-3663 [email protected]

November, 2004

Can a Married Couple go through Division of Assets, Qualify for Medicaid....and Still Keep Everything? The Answer May Surprise You....


    Ralph and Alice were high school sweethearts who lived in Texas their entire adult lives. Two weeks ago Ralph and Alice celebrated their 51st Anniversary. Yesterday Ralph, who has Alzheimer's, wandered away from home. Hours later he was found sitting on a street curb, talking incoherently. He was taken to a hospital where he is being treated for dehydration.

    Alice comes to see you after their family doctor tells her she needs to place Ralph in a nursing home. She tells you they both grew up during the Depression and have always tried to save something each month. Their assets, totaling $120,000, not including their house, are as follows:

Savings Account $35,000

CDs $65,000

Money Market Account $17,000

Checking Account $ 3,000

Residence (no mortgage) $80,000

    Ralph gets a Social Security check for $800 each month; Alice's check is $300. Her eyes fill with tears as she says A At $3,500 to the nursing home every month, our entire life savings will be gone in less than 3 years! What's more, she's afraid that she won't be able to pay her monthly bills, because a neighbor told her that the nursing home will be entitled to all of Ralph's Social Security check.

    You have good news for Alice. You tell her that it's possible she will get to keep everything...all of their assets and all of the income...and still have the state Medicaid program pay Ralph's nursing home costs. And, you tell her that, while the process may take a little while, the end result will be worth it.

    To apply for Medicaid, she will have to go through the Texas Department of Aging and Disability Services (DADS). If she does things strictly according to the way DADS tells her, she will only be able to keep about 1/2 of their assets plus she will be entitled to a minimum monthly income to pay her expenses as she always has.

    But the results can actually be much better than the traditional spend-down, which everyone talks about. That's because Texas does not follow the an Income First Rule, which normally says that Alice would be entitled to her income and then Ralph's income, and then to the income off their assets. Instead, Texas law allows her to go to her income and then the earnings off Ralph's assets, to generate the income to meet her monthly needs. Based on a 5% rate of interest, their entire savings, plus their Social Security will still not generate enough income to bring her up to the current allowable minimum monthly income of  $1,515. Therefore, if she does it properly, Alice will be entitled to keep their entire savings, and there will be no spend-down, and Medicaid will pay for Ralph's nursing home.

    The challenge is that this cannot be accomplished at the case worker level. It can only be done on an appeal. So she will have to get advice from someone who knows how to navigate the system. But with proper advice she'll be able to avoid the spend-down and keep everything she and Ralph have worked so hard for.

    After talking with you, Alice is calmer and says she will find a good nursing home for Ralph. You have helped her to understand that the law does not intend to impoverish one spouse because the other needs care in a nursing home. This is certainly an example where knowledge of the rules, and how to apply them can be used to resolve Alice's dilemma.

    Of course, as you know, proper Medicaid planning differs according to the relevant facts and circumstances of each situation as well as the state law. Texas law is changing with the implementation of estate recovery. Additionally, Texas is changing to an  Income First Rule, which could make it more difficult to preserve assets and all of this may be accomplished at the case worker level.

Free In-Service Training Available:

The Law Firm offers free in-service training on topics related to:

  • Division of Assets

  • Medicaid Planning

  • Guardianship

  • Powers of Attorney

  • Other Elder Law Issues

  • This information is for general informational purposes only and does not constitute legal advice. For specific questions, you should consult a qualified attorney.

    Elder and Disability Law Planning & Strategies is made available and published as a service of Richard M. Barron, Attorney At Law, 209 East Main Street, Whitesboro, Texas 76273, 903-564-3663.

    Richard M. Barron, Attorney at Law encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Richard M. Barron. If you are interested in a free subscription to the Elder and Disability Law Planning & Strategies, then please e-mail us at [email protected]  or call us at 903-564-3663, or fax us at 903-564-5562.


    Hosting Older Relatives

    at Home for the Holidays


    The holiday season is an opportunity for families to enjoy time together. Being the host for your family's festivities is a time consuming process. Along with the preparation that comes with hosting such an event, thought should also be given to preparing your home for your aging parents or older relatives. It is common for older adults to have unique needs including physical limitations or cognitive losses, putting them at risk for falls. Making some simple adjustments to your home and routine can make the holiday season more safe, comfortable and enjoyable for all.

    Review your relative's routines prior to the visit. Ask them if they have any special needs. Do they use a walker, go to the bathroom at night, need assistance with bathing or require a particular diet? The answers will guide your planning. Make every attempt to maintain their regular schedule of meals and sleep. The stress of travel can easily aggravate chronic health conditions. You may have to rent equipment or rearrange the house to meet their special needs. Below are suggestions for making your home safe and secure for your older relatives over the holidays:

    1. Obtain information about preferred routines for meals, medications, sleep, etc. Make every attempt to help maintain their regular schedule it will make for a more enjoyable stay.
    2. Try to provide a bedroom on the lower level, ideally with easy access to the bathroom.
    3. Provide space in the bathroom for medications, personal care items, etc.
    4. Ensure safe accessibility by installing handrails, removing snow and ice, rearranging furniture to create safe pathways and removing throw rugs.
    5. Ensure adequate lighting, including night-lights in bedrooms, hallways, and bathrooms.
    6. Consider renting a tub bench for bathing and apply non-skid strips in the tub.
    7. Consider a commode in a discreet location, if the bathroom is inaccessible.
    8. Keep a list of emergency numbers next to the phones, including the number of your parent's regular physician.
    9. Provide adequate heat but avoid space heaters if possible.
    10. Make sure your guest know where things are in the kitchen and they feel comfortable helping themselves. Many older adults are accustomed to eating small portions several times each day.


    Legal Disclaimer

    This information has been provided for informational purposes only.  It does not constitute legal advice.  The receipt of this information does not establish an attorney-client privilege.  Proper legal advice can only be given upon consideration of all the relevant facts and the law.  Therefore, you should not act upon any information contained herein without seeking appropriate legal counsel.  


    Richard M. Barron

    Attorney at Law

    209 E. Main Street

    Whitesboro, Texas 76273

    903-564-3663, 940 612-3663, 800-939-9093

    Fax - 903-564-5562

    Email- [email protected]

    Not certified by the Texas Board of Legal Specialization

    Licensed to Practice Law by the Supreme Court of Texas