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Seniors and the Law

Elder Law

This article provides information about laws that affect senior citizens in Texas.

Here, learn about topics that affect senior citizens, including Social Security benefits, financial assistance, housing, health benefits, elder abuse, planning ahead, transferring property, and avoiding consumer scams.  

The information in this article was written by Texas Health and Human Services, Texas Young Lawyers Association and the Houston Bar Association. It has been edited for style.  

Revised by TexasLawHelp.org on December 12, 2022. 

What is Social Security?

Social Security pays a monthly benefit to older Americans, workers who become disabled, and families in which a spouse or parent dies. When you retire, your Social Security payment is based on your average earnings over your working career. If you are disabled, your benefit is based on the amount of income on which you’ve paid Social Security taxes. 

How much will I receive from Social Security?

Every year, about three months before your birthday, you should receive a statement from Social Security. 

This statement will tell you if you have enough credits to be eligible to receive benefits. Assuming you do, the statement will provide an estimated monthly benefit. Remember, this is only an estimate. If you are many years from retirement, drastic changes in your earnings can affect the estimate.  

If you have not received this statement, you can submit form SSA-7004, called Request for a Social Security Statement. 

The benefits that you receive from Social Security depend upon several factors:  

  • your age at retirement,  

  • your earnings during your lifetime, and  

  • the calendar date of your retirement.  

It is also affected by offsets such as retirement benefits from certain government-related jobs like teaching.  

For more information, you can contact Social Security at 1-800-772-1213 or go to the Social Security website

When can I start drawing Social Security?

You can start drawing benefits as early as age 62 years old. However, at 62 years of age, you will not be at “full retirement age” and as a result, you would receive a reduced benefit. Full retirement age is between the ages of 65 and 67 depending on your date of birth. Social Security benefits are increased by a certain percentage (depending on your date of birth) if you delay your retirement beyond full retirement age. However, the benefit increase no longer applies when you reach age 70, even if you continue to delay receiving benefits. 

How do I apply for Social Security benefits?

You can apply for benefits: 

  • online at www.socialsecurity.gov

  • by calling the Social Security hotline at 1-800-772-1213, or  

  • in person at your local Social Security office. If you visit the office, you are often given a telephone appointment.  

You will need certain information and certified copies of documents in order to apply, such as your Social Security number, your birth certificate, your military discharge papers if you have had military service, and your W2 form or self-employment tax return for last year.  

It takes time to process the application, so you should file at least three months prior to the date you intend to retire. 

Where can I learn more about Social Security benefits?

To learn more, visit the Social Security website or read the Income section of the Elder Law Handbook, beginning on page 3.  

What are Supplemental Security Income Benefits?

Supplemental Security Income (SSI) is a monthly cash benefit paid to elderly or disabled adults and/or to disabled children, all of whom must meet strict tests of income and assets. SSI entitles the recipient to Medicaid. 

You can read more about SSI on the Supplemental Security Income Home Page on the Social Security website.

What if I need help paying for my utilities?

To view a list of programs that may be able to provide help with the cost of utilities, visit the Help with Utilities page, provided by TexasLawHelp.org. 

What if I need help affording food?

  • Supplemental Nutrition Assistance Program (SNAP) (formerly known as food stamps) is available for both low-income single people and families. To find out if you might be eligible for SNAP, visit the Your Texas Benefits website. Households in which all members are either older adults (age 60 and older) or people with disabilities are eligible to participate in the Texas Simplified Application Project (TSAP), which makes the SNAP application process easier and provides three years of benefits at a time instead of six months. 

  • Area Agencies on Aging in Texas provide a Nutritional Program, which serves nutritionally balanced meals to seniors who are age 60 or older and their spouses, regardless of age, through a network of congregate meal sites. The meals are free of cost. The Nutrition Program in your area may provide transportation as well. Also, for seniors who are eligible, home delivered meals are available. Contact your county’s local Area Agency on Aging for more details or call 1-800-252-9240 for automatic referral by phone to the Area Agency on Aging in your area. 

Where can I learn about tax relief for seniors?

Read the Special Tax Relief for Seniors section on page four of the Seniors and the Law guide provided by TYLA.  

Also read the Tax Information for Seniors and Retirees page, on the Internal Revenue Service website

Also read the Age 65 or Older or Disabled Persons section of the Property Tax Exemptions page on the Texas Comptroller website

What if I need help paying for home repairs?

To learn about programs and resources that help homeowners with home repairs and improvements in Texas, visit the Home Repairs: Texas page on the U.S. Department of  Housing and Urban Development website.  

What are Medicaid and Medicare?

  • Medicaid provides health coverage to eligible low-income adults, children, pregnant women, and people who are older or who have disabilities. Each state has its own rules about who’s eligible and what Medicaid covers. Some people qualify for both Medicare and Medicaid. To find out if you might be eligible for Medicaid in Texas, visit the Your Texas Benefits website

  • Medicare is our country’s health insurance program for people age 65 or older. People younger than age 65 with certain disabilities or permanent kidney failure can also qualify for Medicare. The program helps with the cost of health care, but it doesn’t cover all medical expenses or the cost of most long-term care. To learn more about Medicare, visit the Medicare website. You can also read more about Medicare in the Elder Law Handbook, written by the Houston Bar Assocation. The Medicare section begins on page 14. 

What types of housing subsidies exist?

There are a number of publicly and privately subsidized apartments and homes. The U.S. Department of Housing and Urban Development maintains a comprehensive list of subsidized housing.  

You can also contact your local Public Housing Authority or call 2-1-1 for more information. 

What is independent living?

Independent living (also known as Senior Apartments, Retirement Communities, or Congregate Living) is ideal for individuals who do not require personal or medical care. These private pay facilities are a place for seniors to be with others who share similar interests. They generally include apartment-style residences with the benefit of a general dining room, where full meals are offered along with beauty shops, libraries, transportation services, and organized recreational activities. Recreational activities are planned by the community including field trips, shopping excursions, and on-premises projects. Most facilities offer optional meal plans for residents and the majority of apartments are equipped with a small kitchen so the resident may prepare his or her own meals.  

What is assisted living?

Assisted living is a special program offered by some retirement centers to seniors who may not need 24-hour supervision but may need some assistance with activities of daily living. Meals are provided along with such services as administration of medication, assistance with bathing, group activities, and routine outings.  

What are personal care homes?

Personal care homes are generally private residences where a limited number of seniors or disabled individuals reside. These facilities have 24-hour care providers who prepare meals, dispense medication, and assist the residents with bathing, dressing, personal grooming, and eating.  

You should request to see the home’s state license and local health and fire inspections. 

Personal care homes are an alternative to nursing home placement with a less institutionalized feeling. 

What are nursing homes?

Nursing homes are the most familiar type of residential placement facility for seniors who require skilled nursing care and continuous supervision, but their residents have much less independence than other types of facilities. They offer the most sophisticated level of nursing care, short of hospitalization. Nursing homes are licensed and monitored by the Texas Department of Health.  

Where can I find information on assisted living facilities, skilled nursing and/or nursing homes?

How can I provide in advance for the management of my financial affairs if I become incapacitated?

A Statutory Durable Power of Attorney is a legal document in which one person (called a principal) appoints another person (called the attorney-in-fact) to manage the principal’s financial affairs.  

As an alternative to a Statutory Durable Power of Attorney, you could sign a Supported Decision Making Agreement. This gives the agent the ability to be involved in the conversations, request documents from schools, banks, and doctors, and work with you on these decisions, but it does not give them the ability to make decisions on your behalf.  

A Supported Decision Making Agreement does not replace the need for a Statutory Durable Power of Attorney once you are incapacitated, but it may be a useful tool before you are incapacitated. 

Who will make medical decisions for me if I become incapacitated?

By executing a Medical Power of Attorney, you can appoint one or more persons whose judgment you trust to make your medical and healthcare decisions if you are unable to do so yourself.  

You can give your agent complete authority to make medical decisions or you can limit his or her authority.  

Without a Medical Power of Attorney, an adult surrogate can consent to medical treatment on your behalf if you become incapacitated or comatose.  

The adult surrogate, in the following order of priority, is:  

  • your spouse,  

  • your adult child,  

  • your parents,  

  • an individual identified to act on your behalf before incapacity,  

  • your nearest living relative, or  

  • clergy. 

What is a living will?

A living will is a common name for a document called Directive to Physicians and Family or Surrogates.  

A Directive allows you to direct that life-sustaining procedures such as use of a respirator be withheld or withdrawn if, in the judgment of your physician, you are suffering with a terminal condition from which you are expected to die within six months, or you are suffering from an irreversible condition such that you cannot care for or make decisions for yourself and you are expected to die without life sustaining treatment. 

Can I designate in advance who I wish to serve as my guardian if a guardianship of my person or my estate should become necessary?

Yes. As long as you are not incapacitated, you can execute a Declaration of Guardian in the event of later incapacity or need of a guardian. You can designate a guardian of your person and of your estate in this form.  

Additionally, you can disqualify a particular person or persons from serving as your guardian. The Courts are not required to appoint the guardians you prefer, but the Court may not appoint any person who you have declared that you do not want. The designation can be revoked or changed any time before you become incapacitated. 

When a person is unable to provide food, clothing, or shelter for himself or herself, to care for his/her physical needs, or to manage his or her own financial affairs due to a mental or physical condition, the court may find that he or she is incapacitated and needs a guardianship. A minor, anyone under 18 years of age, is legally incapacitated. 

What types of guardians are there?

Generally, there is a guardian of the person and a guardian of the estate.  

The guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter.  

The guardian of the estate has the duty and power to manage the incapacitated person’s financial affairs.  

One person can fill both positions. And, you may have a guardian of the person only or a guardian of the estate only; you do not have to have both. 

What is elder abuse?

The following are common types of abuse inflicted on the elderly or disabled:  

  • Injury to an Elderly Individual is the act or omission that causes a person 65 years or older serious bodily injury, serious mental deficiency, impairment or injury and any kind of bodily injury.  

  • Neglect is the failure to provide for one’s self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services.  

  • Exploitation is the illegal or improper act or process of a caretaker, family member, or other individual who has an ongoing relationship with the elderly or disabled person using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain without the informed consent of the elderly or disabled person. Exploitation often comes from family members. 

How can I transfer real property when I die?

There are three methods that you can transfer real property: 

  • through your will,  

  • via the intestate laws of Texas (if you do not have a will), or  

  • by a deed in advance of your death that will transfer the property at your death. Unlike a will, deeds must be filed before death in the real property records to be effective. 

Read more about transfer of real property in the Transferring Property section of the Elder Law Handbook, beginning on page 45. 

What deeds can transfer real property when I die?

A Transfer on Death Deed (TODD) must be filed before your death to be effective. With a properly recorded Transfer on Death Deed, no probate is needed to transfer real property.  

It can be set up three different ways: 

  • It can direct your share of the property to your spouse if he/she survives you, or to others if your spouse does not;  

  • It can direct your share of the property to primary beneficiaries and then to alternate beneficiaries if the primary beneficiaries are no longer alive; or  

  • It can transfer to primary beneficiaries only.  

TODD transfers are specifically exempt from Medicare Estate Recovery Program (MERP).  

You can also have a Ladybird Deed or Enhanced Life Estate Deed in which you retain a life estate for yourself and designate who will receive the property when you die. This type of deed also exempts your homestead from MERP. 
 

To learn more about the TODD, visit the Transfer on Death Deeds page on TexasLawHelp.org. 

Where can I learn more about transferring property?

To learn more about your options for transferring property at death, read the Transferring Property section of the Elder Law Handbook, beginning on page 45.  

Where can I learn about avoiding scams?

Where can I lean about what to do if I lose a loved one?

To learn about steps to take when a loved one dies, burial provisions, and probate and estate administration, read the After Death section of the Elder Law Handbook, beginning on page 56.

More information

For more information on the above topics and more, read the Elder Law Handbook and the Seniors and the Law guide.  

 

Contact your local Area Agency on Aging to inquire about the following services, available to anyone 60 and older – and their caregivers:  

  • Finding and accessing community resources, programs, and services 

  • Understanding Medicare and other federal benefits 

  • Coordinating short-term services for people who are recuperating at home after a health care crisis 

  • Providing support to people who care for an older person or someone with a disability 

  • Educating people and offering advice about insurance issues, benefits and consumer problems 

  • Providing meals at home or in group settings 

 

You can also check the with AARP Elder Care Locator online or call 1-800-677-1116. 

 

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