Whether you have a will or not, your property will still go through the probate court system. A Transfer on Death Deed conveys property outside of probate, allowing for you to avoid incurring court costs. Also, it excludes real property from Medicaid estate recovery.
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For individuals age 55 or older, states are required by the federal government to seek recovery of payments from the individual’s estate for nursing facility services, in-home care, and related hospital and drug services. A simple will goes through probate and subjects property to being taken by Medicaid estate recovery. Under current law, property passed on by a Transfer on Death Deed is exempted from Medicaid estate recovery.
Supported decision-making allows individuals to make their own decisions and stay in charge of their lives, while receiving the help and assistance they need to do so. All people need and use support to make important life decisions. Even if a person with a disability needs extra help to make significant life decisions, their right to make their own choices should not be taken away. Using a supported decision-making agreement, a person with a disability chooses someone they trust to serve as their supporter.
Under a supported decision-making agreement, the supporter CAN help a person with a disability:
- Understand the options, responsibilities, and consequences of their decisions.
- Obtain and understand information relevant to their decisions.
- Communicate their decisions to the appropriate people.
Under a supported decision-making agreement, the supporter CANNOT make a decision for a person with a disability.
A supported decision-making agreement may be entered into by an adult with a disability, defined as “a physical or mental impairment that substantially limits one or more major life activities.” The adult with a disability must voluntarily agree to the supported decision-making agreement and cannot be pressured into entering a supported decision-making agreement.
The law does not establish a specific level of capacity required for an individual to enter into a supported decision-making agreement. The individual should have the ability to understand that he or she needs assistance in making particular decisions, to choose a trusted friend or trusted family to be his or her supporter and be able to make decisions with the help of the supporter.
Through Supported Decision Making, any adult may be a supporter. Usually it is a family member or friend. The adult with a disability must choose who will serve as his or her supporter. The individual should pick someone they trust. A supported decision-making agreement is based on trust. An adult with a disability cannot be told whom to select as his or her supporter.
In supported decision making, the adult with a disability may allow his or her supporter to:
- Help gather information needed for a life decision
- Support the decision-making process by helping the adult evaluate and understand the options and consequences, and
- Communicate that decision to other parties.
The agreement may be established for one specific decision or for many decisions. The agreement may be customized to fit the situation as long as it is substantially similar to the statutory form.
The supporter has no authority to make the decisions for the adult with a disability. The supporter is only allowed to assist the individual with whatever is specified in the agreement. The supporter helps the individual gather information and understand that information in order to make an informed decision. The supporter can also assist the person with a disability in communicating the decision to the necessary third parties. The supporter merely assists the individual—the individual with a disability is “the decider.”
The adult keeps the right to make the decisions, including where to live, with whom to live, where to work, and what supports and services they want. The individual can reject the advice of the supporter or make life decisions without the assistance of the supporter
A power of attorney grants another person the authority to make decisions and handle matters without input from the individual. A supported decision-making agreement does not give the supporter the power to make decisions. The person with a disability retains right to make decisions for himself or herself.
A Supported decision-making agreement could be used in conjunction with other alternatives to guardianship such as powers of attorney and representative payee for social security or SSI benefits. The use of other alternatives to guardianship with a supported decision-making agreement should be consistent with the goal of promoting self-determination of the person with a disability and avoiding a full guardianship.
All immigrants with authorization to work in the United States may apply for a social security number and card from their local Social Security Administration office. Undocumented immigrants without employment authorization are not eligible for social security numbers, but may still apply for a Taxpayer ID Number from the Internal Revenue Service, which they can use to file and track their federal income taxes.
Service connected disability is a cash benefit for veterans with a disability that is related to their military service. The disability does not need to be so severe that it prevents the veteran from working.
The FAQ section of this toolkit will help you determine if you satisfy the definition of a "veteran"; if your disability is service connected; and how to apply for this benefit.
The Helpful Links section contains other resources to help you gather evidence for your claim and find more information on specific disabilities.
VA Pension is a cash benefit paid to wartime veterans who are over age 65, totally disabled, in a nursing home, or receiving social security benefits. The FAQ section will help you determine if you served in a statutory period of war, and if you are financially eligible for VA Pension.
A service-connected disability is an injury or illness that occurred while you were on active duty. In some circumstances, it may be an injury or illness that you already had that was aggravated while you were on active duty. The injury or illness must happen in the line of duty.
TDCJ has a precise procedure for inmates to receive medical care. The first step is to submit a sick call form describing your symptoms and requesting treatment. Sick call forms should be available on your housing unit. Sick call requests should be answered within 48 hours.
- Medical powers of attorney go into effect immediately when signed, but can only be used when:
- the principal is incompetent, and
- the principal’s attending physician certifies the principal is incompetent.
- Once the principal regains competency, the agent cannot speak on the principal’s behalf.
- The principal can object to health care decisions at any time.
- The agent’s decisions will not override the principal’s objection—even if the principal is incompetent.
The law says that certain people (such as your spouse, adult children, or parents) can make health care decisions as an “adult surrogate” on your behalf even if you do not have a Medical Power of Attorney. Read the law here: Tex. Health and Safety Code § 313.004.
- With no agent in place, the following people can make decisions, in order of priority:
- your spouse,
- your adult child who has the waiver and consent of all other qualified adult children of yours to act as the sole decision-maker,
- a majority of your reasonably available adult children,
- your parents, or
- an individual you clearly identified to act for you before you became incapacitated, your nearest living relative, or a member of the clergy
However, it is still important to name an agent even if you are married. For example you may want to:
- Name a back-up agent to make health care decisions for you if your spouse cannot.
- You and your spouse could be involved in an accident together
- Your spouse could be unavailable at the time you need an agent
- You may want to name someone other than your spouse to make health care decisions for you.
- You may want to limit the decision-making authority of your agent, and you can do this with a Medical Power of Attorney.
- Without a Medical Power of Attorney in place, the law controls what decision-making authority is allowed.
- If you would like to control the scope of decision-making authority and people that can make health care decisions on your behalf, you should sign a Medical Power of Attorney.
No, not unless you set up your Medical Power of Attorney that way.
The law automatically removes your spouse as agent under the power of attorney if you divorce after signing the power of attorney. However, if you want your spouse to be your agent even after a divorce, do either of the following:
- Specifically state you want your spouse to continue to be your agent even after a divorce when completing the form, or
- Sign a new power of attorney after your divorce that names your ex-spouse as agent.
- Be an adult. (This means you are at least 18 years old, married, divorced, a member of the Armed Forces, or have been declared to be a legal adult by a court order.)
- Be competent (you have to understand the nature and consequences of completing a Medical Power of Attorney the moment you sign it),
- Read, understand, and sign a disclosure statement,
- Complete the Medical Power of Attorney form, and
- Sign the Medical Power of Attorney form in front of two competent adult witnesses or in front of a Texas notary.
Both witnesses must be adults and be competent.
At least one of your witnesses must not be:
- The agent you name in your Medical Power of Attorney,
- Related to you by blood or marriage,
- Someone who will inherit from you if you die, or listed as a beneficiary in your will,
- Your primary physician, an employee of your physician, or an employee of your physician’s health care facility, and
- Someone that, at the time you sign the form, will have a claim on your estate when you die (such as a lien).
Your Medical Power of Attorney is effective until:
- The expiration date you included on the form (if any),
- You revoke (cancel) the form, or
- You die.
Note: If you are incompetent when the expiration date (if any) listed on the form arrives, the Medical Power of Attorney will remain effective until you regain competency or it is revoked (canceled).
There are two ways to cancel or change the agent you chose:
- Revoke (cancel) the Medical Power of Attorney, or
- You can revoke your current choice at any time by telling either the agent or a licensed/certified health care provider.
- This can be done orally, in writing, or by any other act that shows you want to end the Medical Power of Attorney (such as ripping up the form in front of your agent).
- Complete a new Medical Power of Attorney.
- This is the preferred method of canceling an agent because your intent will be clear, and because you will have named a new agent.
- Completing a new Medical Power of Attorney will replace the one before it.
- Canceling a power of attorney will not revive the one before it. You must complete a new form to choose a new agent.
Yes, unless you prefer to have an “adult surrogate” make decisions on your behalf during your incompetency up until the time a guardian is named for you (if ever).
- A Medical Power of Attorney takes effect the instant you are declared incompetent. With both a Declaration of Guardian and Medical Power of Attorney in place, your Medical Power of Attorney agent will make health care decisions on your behalf so long as the power of attorney is effective and until a judge signs a court order naming a guardian for you.
- A Medical Power of Attorney agent can act during the gap between incompetency and the time a court names a guardian, or longer if no guardian is ever named for you.
- Naming an agent in a Medical Power of Attorney can also save you money, because it can often help avoid the expense of a court-ordered guardianship.
- A guardian of the person takes time because the guardian must be approved by a court. If a court approves a guardian, the guardian will then have sole authority to make health care decisions, unless the court determines that the agent should continue.
The main difference is the range of medical treatments the documents cover.
An Out-of-Hospital Do-Not-Resuscitate Order (or OOH-DNR, for short) is limited to out-of-hospital settings (for example, long-term care facilities or care given in transport vehicles) to refuse the following life-sustaining treatments should you suffer from respiratory or cardiac arrest:
- Cardiopulmonary resuscitation (CPR),
- Advanced airway management,
- Artificial ventilation,
- Transcutaneous cardiac pacing, and
- Other life-sustaining treatments.
The Medical Power of Attorney, however, is not limited to the above treatments. If your agent’s decision conflicts with your OOH-DNR, the OOH-DNR controls; if no OOH-DNR exists, your agent may make any decisions about an OOH-DNR and may even execute an OOH-DNR on your behalf.
A Declaration for Mental Health Treatment is strictly limited in scope of treatments and in time.
- A Declaration is limited in scope to the following decisions:
- Electroconvulsive or other convulsive treatment
- Treatment of mental illness with psychoactive medication
- Emergency mental health treatment
Note: A Medical Power of Attorney agent, however, cannot consent to voluntary inpatient mental health services, convulsive (electroshock) treatment, and psychosurgery.
In addition, if the medical treatment you need may be consented to by a Medical Power of Attorney agent, but there is a Declaration for Mental Health Treatment in place for that treatment, the Declaration will override the Medical Power of Attorney.
- A Declaration is strictly limited in the length of time that it is effective:
- A Declaration is effective only for 3 years from the date it is signed (unless you become incompetent, in which case it remains effective for as long as you are incompetent).
Note: A Medical Power of Attorney remains effective until the expiration date listed by the principal (if any) or until revoked.
An Advance Directive is strictly limited in scope to:
- Instructions about continuing or withholding life-sustaining treatment if you have a terminal condition (expected to die within six months), or
- Instructions about continuing or withholding life-sustaining treatment if you have an irreversible condition, you cannot care for or make decisions for yourself, and you are expected to die without life-sustaining treatment.
Note: The Medical Power of Attorney, however, is not limited to life-sustaining treatment. If your agent’s decision conflicts with your Advance Directive, the Advance Directive controls. If no Advance Directive exists, the agent’s decision controls.
A Medical Power of Attorney completed in Texas may or may not be valid in another state.
- A Texas Medical Power of Attorney is only valid out-of-state if the other state’s laws allow it.
- The other state’s laws may limit what it covers even if it is allowed in that state.
If you are considering moving to another state, you should look up that state’s laws or talk with a lawyer in that state to determine if you need to update your Medical Power of Attorney.
Note: A Medical Power of Attorney (or similar document) that was validly executed in another state is valid in Texas, but only to the extent the document, agent, or treatment is allowed under Texas law.