Documents Required While Incapacitated:

Durable Power of Attorney

A Durable Power of Attorney is a contract between two individuals where one party (the principal) gives to the other (the agent) the authority to make any number of decisions (e.g. financial, business, real estate) on his or her behalf, even if the principal later becomes mentally incapacitated.

Medical Power of Attorney

A Medical Power of Attorney gives another person the authority to make medical decisions for you if you are unable to make them for yourself. Unlike a Healthcare Directive, this document does not necessarily state what type of treatment you want to receive. You can leave those decisions to your proxy (sometimes called an attorney-in-fact, agent, or representative) if you feel comfortable doing so. Ideally, however, the two documents will work together.

Healthcare Directive

A Healthcare Directive, also known as a Living Will, Directive to Physicians, or Medical Directive, sets your wishes about what extended medical treatment should be withheld or provided if you become unable to communicate those wishes. The Directive creates a contract with the attending doctor. Once the doctor receives a properly signed and witnessed Directive, he or she is under a duty to either honor its instructions or to make sure that the patient is transferred to the care of another doctor who will. Many people mistakenly believe that healthcare directives are used only to instruct doctors to withhold life-prolonging treatments. In fact, some people want to reinforce that they would like to all medical treatment that is available; a healthcare directive is the proper place to do so.

Hipaa Authorization to Release Medical Records

The Health Insurance Portability and Accountability Act (“HIPAA”) limits disclosure of “Individually Identifiable Health Information.” Pursuant to federal regulations, an Authorization To Release Medical Records allows healthcare providers to disclose and openly discuss individually identifiable health information with members of your family and/or friends designated in the authorization, regardless of your state of health. An Authorization To Release Medical Records also survives your death, unlike a Medical Power of Attorney.

Designation of Guardian

A Designation of Guardian is the document you use when deciding who shall be your guardian, whether it be of your person, your estate, or both. This document becomes effective if you are declared incapacitated and there are no valid powers of attorney naming an individual whom you have indicated to make decisions on your behalf. The Court will use this document when determining who should be named as your guardian and make decisions on your behalf.

Documents Required After Passing:

Will

A Will is a document which directs how you wish your property to be disposed of upon your death. This document remains valid unless or until it is revoked by you. A Will can range from a simple one, where you bequeath your property to your spouse, or other loved ones, to a complex one, where you may place your property in a trust for the benefit of your heirs.

Agent to Control Disposition of Remains

An Agent to Control Disposition of Remains, also known as Body Disposition Authorization Affidavit. An Agent to Control Disposition is written instructions that outline many different requirements according to the decedent’s wishes. Such specifications are not limited to the following: where the body shall be buried, where the ashes shall be scattered after cremation, budget for a memorial service or funeral, as well as the type of ceremony to be performed (religious, etc). The Texas Health and Safety Code, Section 711.002(a) provides a priority list of individuals who have the right to control the disposition of the decedent’s remains in the absence of written instructions or a named agent. The priority list follows in this order: the decedent’s surviving spouse; any one of the decedent’s surviving children; either one of the decedent’s surviving parents; any one of the decedent’s surviving adult siblings; or any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent. It is important to note that this list does not grant this right to a surviving partner. Therefore, it is essential for same-sex couples to execute this document. Planning for the disposition of remains will help save surviving parties of any disagreements on how the body should be handled after death. It will also ease the emotional burden by helping these individuals focus their energies on dealing with the loss of their loved one.

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Many families fear losing their homes due to the Medicaid Estate Recovery Program (MERP) after receiving long-term care benefits. However, with proper planning, you can safeguard your assets. At Townsend Allala Coulter & Kludt, we help families in El Paso, TX, navigate Medicaid planning to protect what matters most.

What Is the Medicaid Estate Recovery Program

MERP allows the state to recover costs from the probate estate of a Medicaid recipient after their death. This recovery only applies under certain conditions, and there are several ways to avoid it.

How to Protect Your Home from MERP

Use a Lady Bird or Transfer on Death Deed

These tools transfer ownership of your home automatically upon death, bypassing probate and eliminating MERP claims.

• Lady Bird Deed retains control of the property during your lifetime while ensuring transfer to heirs.
• Transfer on Death Deed allows for changes during your lifetime while avoiding probate.

MERP Exceptions and Waivers

Even without special deeds, you may qualify for an exception or waiver:

• A surviving spouse prevents MERP recovery.
• Disabled children, children under 21, or an unmarried adult child living in the home for at least a year before the recipient’s death are protected.
• Low-income heirs may qualify for a waiver or partial waiver.

Consult an Attorney Before Paying MERP Claims

Never pay a MERP claim without consulting a Medicaid planning attorney. Many claims can be negotiated or eliminated entirely, ensuring your family retains its assets.

Secure Your Future with Expert Planning

Don’t let the fear of MERP prevent you from accessing necessary Medicaid benefits. With proper planning, you can protect your home and secure your family’s financial future. Contact us by visiting our Medicaid planning page for personalized legal guidance in El Paso, TX.

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