FAQ
Elder law questions we hear most often.
Direct answers to Medicaid planning, guardianship, and long-term care questions for Houston families. Call +1 713-424-0804 for advice specific to your situation.
FAQ
Medicaid & Long-Term Care
Texas Medicaid for nursing facility care pays for room, board, and skilled nursing services at participating facilities for residents who meet HHSC income and asset limits. A single applicant must generally reduce countable assets below $2,000. A married couple has additional protections for the spouse remaining at home.
Texas Medicaid is administered by the Health and Human Services Commission (HHSC), not the federal government directly. Income and asset limits are updated annually. For married applicants, federal law protects a portion of the couple's combined assets for the community spouse, called the Community Spouse Resource Allowance, and protects a monthly income floor called the Minimum Monthly Maintenance Needs Allowance. The institutionalized spouse's income above HHSC's threshold goes to the nursing facility as a patient pay amount; Medicaid covers the gap between the patient pay amount and the facility's Medicaid rate.
Medicare covers short-term skilled nursing care after a qualifying hospital stay, up to 100 days with cost-sharing after day 20. Medicaid covers long-term nursing home care for residents who meet income and asset requirements. They are separate programs with different eligibility rules.
Many families arrive at an elder law consultation believing Medicare will pay for nursing home care indefinitely. It does not. Once the Medicare skilled nursing benefit is exhausted, residents must pay privately, draw on long-term care insurance, or qualify for Medicaid. Understanding this distinction early is one reason elder law planning has value even for families who believe their insurance coverage is adequate.
When a Texas resident applies for Medicaid nursing facility benefits, HHSC reviews the prior 60 months of financial records for asset transfers made below fair market value. Gifts and transfers within that window can create a penalty period during which Medicaid will not pay for care.
The look-back period is the central reason elder law attorneys counsel families to plan as early as possible. Transfers made more than 60 months before the Medicaid application date fall outside the review window and do not affect eligibility. Transfers within the window are evaluated individually. The penalty period is calculated by dividing the transferred amount by the average monthly cost of nursing home care in Texas. During the penalty period, the applicant is ineligible for Medicaid even if they otherwise meet the income and asset limits, and the family must cover care costs privately.
Medicaid crisis planning applies when a person needs nursing home care immediately but has not done advance planning. Even at that stage, Texas Medicaid rules leave room for legally sound strategies to protect some assets for a healthy spouse or family, because not every transfer triggers a look-back penalty.
Crisis planning is more constrained than proactive planning, but it is not without options. Strategies that may be available depending on the family's asset picture include paying off mortgages or other debts, making home improvements to an exempt residence, purchasing an exempt vehicle, converting countable assets into Medicaid-compliant annuities under specific HHSC rules, and spousal asset transfers permitted under federal Medicaid law. An elder law attorney reviews the family's specific situation before any transfers are made, since unadvised transactions during the look-back period can worsen the eligibility picture.
The most effective time to start Medicaid planning in Texas is at least five years before nursing home care is anticipated, because the 60-month look-back period limits what transfers can be made once care is imminent. For families managing a diagnosis of Alzheimer's, Parkinson's, or another progressive condition, planning should begin promptly after the diagnosis.
Even families who cannot realistically anticipate a nursing home need in the near term benefit from reviewing their powers of attorney, estate plan documents, and asset structure with an elder law attorney. That review surfaces issues that would become costly in a crisis: a power of attorney that a financial institution will not accept, an asset titled in a way that complicates Medicaid eligibility, or the absence of documents needed to authorize someone to act during incapacity.
FAQ
Guardianship
To obtain guardianship of an elderly parent in Texas, you file an application in the county where the proposed ward lives, submit a physician's certificate of medical examination, complete a background check, and attend a court hearing. In Harris County, adult guardianship cases are heard in the statutory probate courts.
The court appoints an attorney ad litem to independently represent the proposed ward's interests before deciding whether guardianship is warranted. The judge considers whether a less restrictive alternative, such as a supported decision-making agreement or an existing durable power of attorney, is adequate. If guardianship is granted, the guardian files annual reports and accountings with the court for as long as the guardianship continues. The process from filing to appointment typically takes two to four months in Harris County. An attorney guides the family through the filing requirements, the required documentation, and the hearing.
A Texas guardianship of the person authorizes the guardian to make healthcare, residential, and personal decisions for the ward. A guardianship of the estate authorizes the guardian to manage the ward's financial affairs. Courts may grant both, or only one, depending on what the ward's circumstances require.
Texas courts are directed to limit guardianship to the least restrictive alternative. A guardian of the person does not automatically control finances, and a guardian of the estate does not make medical decisions. When the person has a valid durable power of attorney covering finances, the court may deny a guardianship of the estate on the ground that an existing legal arrangement is adequate. The same applies to a valid medical power of attorney for personal decisions. This is one reason having those documents in place before capacity is lost is so important.
A Texas supported decision-making agreement names a supporter who helps an adult with a disability understand and communicate their own decisions, without taking over decision-making authority. It is a less restrictive alternative to guardianship and does not require court involvement.
Texas law added supported decision-making agreements to the Estates Code in 2015. A court considering a guardianship application must determine whether a supported decision-making agreement is adequate before appointing a guardian. The agreement must be in writing, signed by both the supported person and the supporter, and witnessed. It can cover personal, medical, or financial decisions, and can be revoked by the supported person at any time. For adults who have some decision-making capacity but need assistance understanding information or communicating, a supported decision-making agreement can be a meaningful alternative to the more invasive guardianship process.
FAQ
Asset Protection & Long-Term Care Costs
Protecting assets from nursing home costs in Texas depends on how much time is available. Families who plan five or more years before care is needed have the broadest set of lawful options. Families already in a care crisis still have options, but they are narrower because of the Medicaid look-back period.
For proactive situations, strategies may include irrevocable trusts, Lady Bird deeds to protect a home from estate recovery, converting countable assets into exempt ones, and coordinating with an existing estate plan. For crisis situations, strategies may include paying off debt, purchasing exempt assets such as a vehicle or home improvements, spousal asset transfers under federal Medicaid law, and in some cases Medicaid-compliant annuities. No single strategy fits every family. The starting point is a consultation with an elder law attorney who reviews the actual asset picture.
Yes. Texas participates in the federal Medicaid estate recovery program. After a Medicaid recipient dies, the state may file a claim against their probate estate to recover the cost of benefits paid. Certain assets, including a home passing to a surviving spouse or a dependent child, are protected from recovery.
Estate recovery applies only to the probate estate, not to assets that pass outside of probate such as those held in trust or transferring through beneficiary designations. This is one reason elder law planning often involves converting assets to non-probate forms when appropriate. The surviving spouse's assets are not subject to estate recovery during the spouse's lifetime. An executor who distributes estate assets before satisfying a Medicaid estate recovery claim can become personally liable for the improperly distributed amount.
FAQ
The Planning Process
An elder law attorney may prepare or update a durable financial power of attorney, medical power of attorney, directive to physicians, Lady Bird deed, revocable or irrevocable trust, and other instruments the client's situation requires. The specific documents depend on the client's care situation, assets, and goals.
Elder law is not a separate set of documents from estate planning. It is an approach that applies estate planning tools with a focus on incapacity, long-term care, and Medicaid eligibility. A client coming to an elder law attorney often needs their estate planning documents reviewed and updated, their asset titling reviewed for Medicaid implications, and a care plan that addresses both the legal and the practical dimensions of aging or illness.
SEE ALSO
- Elder Law area of guidance pageFull description of all sub-services
- All articles and guides
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