The additional allegation that you have possessed, manufactured or delivered a controlled substance in a drug free zone "DFZ" can have a significant impact on your ability to ultimately receive probation or eventually make parole.  

Texas Code of Criminal Procedure Article 42A.054 (formerly known as 3g offenses) limits the ability to receive probation for such an offense.  Essentially, the Code prevents a court from accepting a straight probation plea.  A judge can only accept a plea for a deferred adjudication probation, which can have its own pitfalls and advantages for the accused.  Only a jury can grant probation for a DFZ offense following a trial  following a final conviction.  

Ordinarily, a person serving time will be eligible for parole once their time of incarceration plus the application of any good time equals one-quarter of their sentence.  However, the DFZ charge changes this calculation.  Texas Government Code Section 508.145 limits the parole eligibility until after the person's actual calendar time served, without consideration of good-time credit, equals one-half of the original sentence.  In other words, the individual must actually serve at least one half of their actual sentence.  

Fighting the addition of a DFZ enhancement to a drug offense can be critical in receiving an effective outcome to your case.  

If you are facing a drug charge and need to understand your rights, contact our office today.  
903.455.1991
​www.councilfirm.com

For many, understanding their last Will and Testament and what it is intended for is complicated.  In many cases, having a Will completes their need for simple estate planning.  A Will is a direction to a probate court as to how and to whom your estate should be divided upon your passing.  However, complications arise for some who need more than just a direction.  Their goals may need to be more directed at limiting the amount of assets that actually come into the probate estate.  There also may be tax benefits for setting up trusts for high net-worth individuals.  However, the need to limit the probate estate is especially high for the millions of Americans who may one day end up on Medicaid.  

The problem comes from a program called the "Medicaid Estate Recovery Program" or (MERP).  Under MERP, the Texas Health and Human Resources Commission or "HHSC" is directed to place a claim against a person's probate estate to reimburse the state for payments made toward that person's healthcare during his or her lifetime.  HHSC is a creditor under the MERP program and is entitled to collect from the "probate estate."  The key here, at least for now, is that HHSC can only place claims against property that is within the probate estate.  This creates great planning advantages for people needing to utilize Medicaid. 

Unfortunately, many think that because they have a Will, their biggest asset--the family home--will be protected and be left to their loved ones when they pass.  This could be true, assuming they do not go to a nursing home or otherwise need to use State Benefits during their lifetime.  The truth is; however, if your home is left to your loved ones by a Will, then it is in jeopardy of being taken by MERP.  The Will commands the home to be part of the probate estate--it's simply what it's designed to do.  

Luckily, there is another way to protect your home and ensure it passes to your loved ones outside of your Will.  The tool often used is called a "Ladybird" deed or Vesting-On-Death deed.  This is a special type of deed which reserves in the grantor an enhanced life estate.  The provisions are such that HHSC will continue to allow the homestead exemption for the Medicaid applicant, while also allowing the home to pass on outside the probate estate.  In other words, Medicaid cannot touch the house when the applicant passes.  

To learn more about this and other planning strategies, contact my office for your estate evaluation.  

On May 17, 2015 a tragic and inexcusable incident occurred outside a Twin-Peaks restaurant in Waco, Texas which left nine people dead.  This particular Twin-Peaks had a history of catering to the "biker" culture.  True to form a biker rally was planned for May 17.  Several biker clubs/gangs were set to convene on the Twin-Peaks location.  It's not clear exactly what sparked the violence, however, shots were fired by both bikers and police which ended in nine dead and at least 170 bikers in jail.  Each had their bond set a one million dollars (1,000,000.00) which brings me to the substance of this article. 

Bonds are intended to secure the presence of an accused person in future court proceedings.  They are meant to be set in an amount sufficient to both secure the defendant's presence in court (i.e. the defendant will appear so the bond money is not forfeited to the Court) and protect the public (i.e. the bond is not set so low that truly bad people can easily free themselves from custody and do more harm to the public).  In some instances, bonds can be denied all-together.  Generally, however, defendant's are entitled to a reasonable bond that is not oppressive or punitive.  Again, the idea is just to secure the defendant's future presence in Court.  

In this case, if the justification for the one million dollar bond is that these are all truly bad people, then the bonds should be denied in total.  However, handing out $1,000,000.00 bonds in a blanket fashion is an injustice to those who just happened to be present at the wrong time.  Applying a small amount of logic and common sense will lead to the conclusion that at least some of of the 170 people had no involvement with criminal activity whatsoever.  In other words, some of these people are INNOCENT.  Still, their bond has been set at one million dollars and they will remain in jail until they can either post the bond themselves, have a bondman post surety on their behalf, or have the bond lowered by the courts.  

Bondsmen generally charge 10% of the stated bond amount.  Meaning each defendant would have to pay a bondsman one $100,000.00 before securing their freedom.  This is money they will NOT get back even if their case is later dismissed or they are acquitted by a jury.  How many of us really have a spare hundred grand lying around for bond money?  How many even have a spare $1,000.00? 

The reality is that these people, some of whom are innocent, could sit in jail for months before the Courts work through their cases.  Each will likely lose their job, car, motorcycle, apartment or even their house while waiting for the process to complete.

Truthfully, we hold people in jail daily who likely shouldn't be there, but if they don't have the bond money, they will stay in jail.  Many who are indigent, are in the same boat.  Their 10,000.00 bond might as well be one million.  

This is just another example of how those with financial wealth have an advantage in the legal system.  At least as far as pre-conviction, if you have the money, you get your freedom.  If you don't, you're stuck.  

This is why you should not deal with the state alone.  You should seek the help of a competent attorney who will fight for you.  No attorney can guarantee that they can get your bond reduced or secure your freedom with personal recognizance.  However, an attorney can ensure that you get before the Court, that the Court hears your side and that you are portrayed in the best light possible.  Innocent people go to jail everyday.  Often for just being in the wrong place and the wrong time.  If this happens to you, don't sit and wait.  Call for help.  

One realization we will likely all come to is that one day, if we are lucky, we will reach retirement.  Then, soon thereafter, we will most certainly reach an age where we can no longer refer to ourselves as young.  In fact, we will just be old.  That doesn't mean we will be slowed down, or feeble, or unhealthy; just, old.  

With getting old comes a new realization--the realization that we are going to need additional healthcare to keep going.  This may even mean one day being placed in a nursing home or having healthcare aides assist us at home.  Further, someone will have to pay for that care, and increasingly, it is likely going to be the state, and the state = Medicaid.

Statistically, between 50 and 65 percent of all people who reach age 65 will go into a nursing facility in their lifetime.  Most of these people will receive their care through Medicaid--whether they like it or not, it's just the reality of the world we live in.  

The real danger, though, is not getting services through Medicaid, but rather, what Medicaid can and WILL do after that person dies.  The Medicaid program has what is called MERP or (Medicaid Estate Recovery Program).  This program is designed to recoup the costs Medicaid spends on behalf of a patient by placing a claim against the deceased person's probate estate.  Through MERP, Medicaid can take and sell the patient's home after he or she passes away.  

One way to protect yourself from MERP is by transferring your home prior to death via a ladybird deed.  This is a highly specialized document that allows you to still qualify for Medicaid benefits, continue living in your home, keep your tax benefits, and control who the home eventually transfers to, all the while, shielding your home from Medicaid recovery.  

Many people do no realize that the new Obamacare law is essentially an expansion of Medicaid for the fully-subsidized recipients.  Even these people will likely own a home and pay it off over their lifetime.  If and when they go to their doctor and receive medications, surgeries or any other type of medical care through the Obamacare program, Medicaid may be able to lay a claim against their estate as well--even if they never step foot inside a nursing home.  

This Obamacare Medicaid expansion just shows how EVERYONE should have their home in a Ladybird deed in order to protect their assets for future generations.  To not do so is to leave your life's work subject to being confiscated by the state.  

To learn more about this special deed and how we can help you protect your home, visit us at www.councilfirm.com 

The first and most important thing to understand  about the current government shut-down and how it may affect program  beneficiaries is the difference between mandatory and discretionary spending.  Certain programs like Medicare, Medicaid and the Affordable Healthcare Act (ACA) are mandatory programs—meaning they are not subject to annual appropriations.  In other words, these programs are not dependent upon Congress to fund them year after year.  This is not to say that the shutdown has no effect. 

Many of the workers who help administrate the Medicare and Medicaid programs are considered non-essential. Therefore, many of those government workers will be furloughed during the shut-down.  This in turn can impact processing times for applications and payments to vendors.  Luckily, because Medicaid is primarily administrated by state agencies, rather than federal, this shutdown will have less impact on Medicaid than Medicare.  
 
DEBT-CEILING—THE REAL ISSUE

 What is likely to be more impactful on these benefits programs are the coming negotiations to raise the debt ceiling.  In order for the Medicare and Medicaid programs to continue to receive funding, our country will have to continue to borrow money.  In turn this mean we will have to raise the debt ceiling yet again. 
The issue will be by how much.  It is likely that these programs will undergo large cuts in order to curb
back government spending as politicians on both sides begin to realize the government cannot continue to spend at its current rate. 
 
SUMMARY

 For now, the government shut-down is likely to have little effect on programs you rely on like Medicare and Medicaid. However; changes to these programs are inevitable and only time will tell just how drastic those changes will be.  

For many, all they really know about Medicare is that it will eventually, (after I work all my life), pay for my healthcare.  However, it is important to know what Medicare is and what it is not.  Still, even with its draw-backs, Medicare provides a great amount of services for millions of Americans.

Medicare is the federal health insurance program for people who are 65 or older, certain younger people with disabilities, and people with End-Stage Renal Disease (permanent kidney failure requiring dialysis or a transplant, sometimes
called ESRD).

The different parts of Medicare help cover specific services:

Medicare Part A (Hospital Insurance)
Part A covers inpatient hospital stays, care in a skilled nursing facility, hospice care, and some home health care.

Medicare Part B (Medical Insurance) 
Part B covers certain doctors' services, outpatient care, medical supplies, and preventive services.

Medicare Part C (Medicare Advantage Plans)
A Medicare Advantage Plan is a type of Medicare health plan offered by a private company that contracts with Medicare to provide you with all your Part A and Part B benefits. Medicare Advantage Plans include Health Maintenance Organizations, Preferred Provider Organizations, Private Fee-for-Service Plans,  Special Needs Plans, and Medicare Medical Savings Account Plans. If you're enrolled in a Medicare Advantage Plan, Medicare services are covered through the plan and aren't paid for under Original Medicare. Most Medicare Advantage Plans offer prescription drug coverage.

Medicare Part D (prescription drug coverage)
Part D adds prescription drug coverage to Original Medicare, some Medicare Cost Plans, some Medicare Private-Fee-for-Service Plans, and Medicare Medical Savings Account Plans. These plans are offered by insurance companies and other private companies approved by Medicare. Medicare Advantage Plans may also offer prescription drug coverage that follows the same rules as Medicare Prescription Drug Plans.

How Medicare relates to DME (Durable Medical Equipment)
Most seniors know Medicare covers their prescriptions and doctor visits (at least the standard 80%).  However many may be surprised to learn that Medicare will also cover many items classified as durable medical equipment or DME.  This benefit becomes increasingly valuable as we age and our mobility decreases.  Durable Medical Equipment covers a vast array of items including home oxygen equipment, hospital beds, walkers, wheelchairs, etc.  Anyone with traditional Medicare or Medicare Part B will be able to receive DME under Medicare.  To qualify for payment, the recipient will need to have a doctor's prescription for the item.  For some equipment, the doctor must also fill out a form and send it to Medicare for approval of the equipment.  You can expect to pay 20% of the Medicare rate for the items. 

How Medicare relates to Home Health
Medicare will also pay for skilled nursing and therapy services in your home.  These are provided under your home health benefits.  In order to qualify you must meet certain conditions.  These include factors like being under the care of a physician; having your doctor certify you need wither intermittent skilled nursing, physical therapy, speech-language pathology services, or continued occupational therapy; whether you are homebound and others.  Medicare pays a Medicare-certified home health agency for 60 days of care.  These 60 day intervals are called the "episode of care."  It is important to note that Medicare will only pay for skilled nursing services.  It does not pay for non-skilled services like home-care (cooking, cleaning, bathing, laundry), even though you may not be able to complete these activities of daily living.  There are now new Medicaid programs, which may provide assistance with these needs. 

If you have questions regarding your Medicare coverage or the services you may be able to receive, give us a call.  The Council Law Firm may be able to help you receive the care you need.  www.councilfirm.com  Call us today!  (972) 423-1025. 

For other helpful resources on Medicare, visit the following:

http://www.medicare.gov/sign-up-change-plans/decide-how-to-get-medicare/whats-medicare/what-is-medicare.html
http://www.medicare.gov/Publications/Pubs/pdf/10969.pdf

Some material for this article was obtained from www.medicare.gov 

    It's true.  A man's home is his castle.  So when it comes to paying for assisted living, nursing, or some other type of long-term care, a man will do most anything to avoid losing it to the the state or to the rising cost of medical care.  Unfortunately, a man will also transfer it to a trust under some misguided advice thinking he is doing the right thing. 
    Recently, I have had a couple of clients come into the office and tell me that in order to qualify for future Medicaid benefits, they should transfer their house to an irrevocable trust and simply wait out the penalty period.  While this seems like a simple and straight forward option, it is certainly not, and since I have had a couple people come in after being told it was the right thing to do, I feel it is worthy of a deeper discussion.  So, let's start from the beginning. 
    Medicaid is the largest payor of long-term care (nursing home care) in the United States.  This is primarily due to the exhorbitant cost of service; in some areas a facility can easily cost over $6,000 per month.  Rather than pay all that out of pocket, sometimes it is better to let Medicaid pick up the tab--other times there is no other alternative.  Still, the risk in using Medicaid benefits (without proper planning) is that Medicaid can lay a claim against a recipient's probate estate and recoup its costs from the probate assets.  This is where the trust idea comes into play. 
    The idea is that you transfer your home to a trust and wait out the Medicaid "look-back" period.  Once you are past the look-back period, the home (which is in the trust) will not be part of the recipeint's probate estate after death, and therefore, free from the claws of Medicaid.  The problem with this is two fold: First (1) the home loses its exempt asset status when transferred to a trust; and Second (2) the applicable look-back period.  
           (1) The Home's loss of Exempt Status: 
    It is important to note that Medicaid requires an applicant to have less than $2,000 in countable resources in order to qualify for benefits. Ordinarily, the homestead of an applicant or couple is exempt from this determination.  If it wasn't, no one would ever be certified for Medicaid.  However, the home loses its exempt status if it is transferred to a trust.  This is because the home is only exempt so long as it is in the applicant's name or the name of his/her spouse.  The idea is that Medicaid will be able to place a claim against it when the recipient dies.  This means that if you transfer your home to a trust and then need to apply for Medicaid within 60 months of that transfer, the full value of the home in the trust will be counted against you for application purposes.  The application will be denied until either the value of the home is spent down (which would be difficult to do) or the home is transferred back to the applicant.  Since the only self-settled trust that would exempt the applicant's assets after the penalty period is an irrevocable trust, this creates a huge problem because the house could not be transferred back to the applicant.  This brings us to the other issue. 
            (2) The 60 month "look-back" period:
    Many of you know and have heard of the Medicaid look-back period.  Basically, it works to create a Medicaid penalty for any transfers occuring within a certain time period before the Medicaid application date.  In 2005 Congress passed the Deficit Reduction Act (DRA).  Part of the act's provisions was an extension of this "look-back" period from 36 to 60 months--meaning that if an applicant transferred assets to someone or something, i.e. a trust, within 60 months of making an application for Medicaid benefits, Medicaid will levy a penalty on that applicant to the tune of $142.92 per day up to the transferred amount.  However, even more detrimental was the change to the start date of the penalty.  Before the DRA the penalty started from the month of transfer; however, after the DRA the penalty doesn't begin until the month the applicant is in a facility and would have received benefits, but for the penalty. 
    These two issues work together to create a real risk losing Medicaid eligibility entirely when considering the transfer of a house to a trust.  It sets up the "perfect storm" if you will.  Imagine you tranfer your home worth $120,000 to an irrevocable trust in order to begin waiting out the 60 month look-back period.  However, after just two years you find you need to make an application for benefits based on long-term care needs.  Now, the home, which would have been an excluded resource if it were still in your name, is counted as a $120,000 uncompensated transfer against you and Medicaid assess a penalty of (120,000/142.94) = 839 days; or 2.3 years.  During this time, you (or your family) will have to pay for the nursing home out of pocket--something that may not be financially feasible.  To make matters worse, because the trust is irrevocable, you cannot transfer the home back to your name in order to fix the problem.  
    Luckily, there are better options in Texas.  One way may be to use what is called a Lady Bird Deed.  This is a deed with a special type of life estate reservation.  It grants the grantor the right to nullify the conveyance, name subsequent or alternate grantees, etc.  Because these powers are reserved and because the conveyance is not final until death, Medicaid views this as if the home were still in the Grantor's name.  That way, the Grantor/Medicaid applicant gets to exclude the home for application purposes, and since the home is deeded prior to death, when the Medicaid recipient passes away, Medicaid cannot place a claim against it as a probate asset.  Win win. 
    My firm is dedicated to helping seniors protect their independence and prepare for these types of issues.  We work to make sure our planning fits your values, needs and intentions.  If you have questions about protecting your assets from Medicaid or how to best plan for use of state benefits, give our office a call or visit us online at www.councilfirm.com.  Thank you. 

When many people hear the word Medicaid, their first reaction is, “I’ll never.”  “I have worked my whole life, and I’ve got too much pride to take some hand-out from the government.”  This sentiment is commendable, and it’s the attitude bread into each of us as Americans, and moreover, as Texans. 
That independent spirit is what built our country, and what gives Texas its unique culture and community.  Yet, Medicaid still remains the largest single payer of Long-Term Care (LTC) services in Texas and America as a whole.  This is due largely to the high cost of services and the bleak reality that you, your spouse, your mom, your dad or someone else you know will eventually live the final days, weeks or even years of their life in a nursing home.  Considering these eventualities, it may be time to take a fresh look at your attitude toward the Medicaid system.  

According to a study by the U.S. Department of Health& Human Services’ Agency for Healthcare Research and Quality, roughly 43% of all people who reach age 65 will need long term care services in their lifetime.  This means that almost every couple in the state will face the dilemma of paying for nursing home care for one or both spouses.  Of those who go into a nursing facility, it’s projected that 21% will remain there for at least five (5) years.  Overall, the average length of stay in a nursing facility is around three (3) years. Given the fact that the average American can only pay privately an average of 26 weeks, how the person is going to pay for their remaining stay becomes not just a problem, but a matter of life and death.  
 
The cost of this care is exorbitant.  For example, in the Greenville, Texas area the daily rate of a private
room is around $165.00 per day. These rates increase as you move closer to the Dallas/DFW metro-plex.  The total annual cost can be over $70,000 per year and even more if paying for an in-home
service.  Many people work diligently and save their whole life only to see their savings wiped out in a
few short months due to the cost of care and still-present expenses at home.  To compound the problem,
Americans are living longer, and the Elder population is increasing. In 2010 America had 40 million citizens over age 65.  That number is projected to increase to at least 55 million by 2020.  The demand for nursing services will necessarily increase with this additional growth, and that increase can only
raise the cost of nursing facility services.  

To the surprise of many, neither Medicare, nor traditional health insurance will pay the cost of nursing facility care.  This leaves Medicaid as the only alternative for most.  In addition, even people who attempt to self-pay, eventually wind up on the Medicaid system once their money runs out.  Because of these realities, Medicaid has become the primary payer for Long-Term Care services for a majority of the
population.  Therefore, it makes sense to recognize the importance of this system early, and plan ahead for the use of Medicaid and other state benefits before depleting your entire nest-egg.  Pre-planning can save you thousands of dollars as well as your home and other assets.  Qualifying for Medicaid is often complicated, and therefore, you should seek out the advice of an experienced attorney to help you develop a plan that fits your individual situation.   

Still, planning for long-term care with Medicaid doesn’t have to be a nightmare.  In fact, planning
to pay for your LTC expenses with Medicaid does have some advantages to other methods of payment.  As mentioned already, the average nursing home resident can only pay privately for 26 weeks.  Pre-planning may be able to allow you to preserve those assets for future generations, rather than paying
  those funds to a nursing facility or on insurance premiums.  Second, and most important, planning with Medicaid will allow you to protect the spouse at home from “Spousal Impoverishment.”  Medicaid  rules allow the spouse at home to keep, in some cases, all of the couples’ assets, and where the assets are low in value the spouse at home can keep all of the couple’s joint income as well.  
 
You often hear horror stories about Medicaid taking a person’s home after they pass away. While it is true that Medicaid Recovery Program does have the power to lay claims against your probate estate, with proper planning your home can likely be shielded from any seizure and instead, passed to your heirs or other recipients as you choose, outside of the probate process. 

In conclusion, aging is inevitable.  We can hold back the hands of time no more than we can hold back the tide with a push-broom.  The real fact is we all will need some type of assistance when we get  older. That assistance is going to cost money, and likely more than we can anticipate.  Medicaid offers a reasonable alternative to consuming all your resources on the expense of nursing care.  Rather than viewing this program as a stigmatizing form of welfare, perhaps it’s time to view planning for the use of the benefit as another strategy of the prudent investor.  Still, before you make any decisions, you should seek the counsel of a knowledgeable and experienced Elder Law attorney.  Only then will you truly understand your options and what’s best for your particular situation.