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Medicaid Asset Protection Trusts in Texas & New Mexico | Long-Term Care Planning | The Longhorn Law Firm
Estate Planning · Trusts · Medicaid Asset Protection

Medicaid asset protection trusts: planning for long-term care.

Nursing home care can cost more than most families can pay for long. Set up early, a Medicaid asset protection trust can help preserve a home and savings while keeping Medicaid eligibility possible.

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Texas & New Mexico
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The problem: long-term care costs.

Medicare generally doesn't pay for long-term custodial care. Medicaid does — but only once your countable assets are below strict limits. Without planning, families often spend down savings built over a lifetime before help arrives.

How the trust works.

You transfer assets — often your home or savings — to an irrevocable trust and give up any right to the principal. A trustee, often an adult child, manages it for your beneficiaries. Depending on how it's drafted, you may keep the right to live in the home or to receive the trust's income. Because you no longer own or control the principal, it can stop counting as your asset for Medicaid once the look-back period has passed.

The five-year rule
Medicaid looks back 60 months.

When you apply for long-term-care Medicaid, the state reviews transfers made in the five years before the application (42 U.S.C. § 1396p(c)). Assets moved into the trust within that window can trigger a period of ineligibility. That's why this trust works only when it's set up well before care is needed.

What to know first.

  • It's irrevocable. You can't take the principal back.
  • Income still counts. Income the trust pays you is generally still your income for Medicaid.
  • Choose the trustee carefully. It should be someone you trust completely — usually not you.
  • It isn't always needed. Your home may already be protected in some situations, such as while you or your spouse live there.
  • Estate recovery. Both states can seek repayment of Medicaid costs from certain estates, so the plan must account for it.

Qualified income trusts (Miller trusts).

A different trust solves a different problem. Texas and New Mexico are both income-cap states for nursing home Medicaid: if your monthly income is over the limit, you can't spend down to qualify. Instead, the excess income is deposited each month into a qualified income trust — called an Income Diversion Trust in New Mexico — and used toward your care. It doesn't shelter savings, and the state is repaid from what's left at death, but it can make Medicaid possible when income is the obstacle.

Texas vs. New Mexico.

TexasNew Mexico
Look-back period60 months60 months
Income over the capQualified income trust (QIT)Income Diversion Trust
Estate recoveryTexas Medicaid Estate Recovery ProgramNew Mexico Medicaid estate recovery
Who handles itJeff Barnett, Of Counsel (Texas Practice) — a long-standing part of his practiceShawn Barnett, Managing Attorney

Pricing.

Trusts are quoted after a consultation, because the right design depends on your family, your property, and your goals. The documents that usually accompany a trust are flat-fee:

Texas

Jeff Barnett, Of Counsel (Texas Practice) · Austin
Will$600
Statutory Durable Power of Attorney$150
Medical Power of Attorney$150
Directive to Physicians (Living Will)$100
TrustsQuoted after consultation

New Mexico

Shawn Barnett, Managing Attorney · Albuquerque
Will$600
Durable Power of Attorney$150
Health-Care Power of Attorney
Part 1 of the NM Advance Health-Care Directive
$150
Living Will / Treatment Instructions
Part 2 of the NM Advance Health-Care Directive
$100
TrustsQuoted after consultation

Flat fees are per person and cover preparation of each document. The first hour of an estate planning consultation is free; if a consultation runs longer than one hour and you don't purchase an estate planning package, additional time is $300 per hour, prorated to the nearest quarter hour. Court filing and county recording fees, if any, are separate. Prices effective through December 31, 2027.

Common questions.

When should I set one up?+
Ideally at least five years before you expect to need long-term care. Many people plan in their 60s or after a diagnosis that suggests care may be needed later.
Can I put my house in the trust and keep living there?+
Often, yes. The trust can be drafted to let you keep living in the home.
What if I already need care?+
A trust set up now won't clear the look-back in time, but other options may still help — spousal protections, a qualified income trust, or planning around exempt assets. Call us before transferring anything.
Is this hiding assets?+
No. It's a planning tool that Medicaid's own rules account for through the look-back. Done early and correctly, it's legal.

Texas estate planning services are provided by Jeff Barnett, Of Counsel (Texas Practice), of Barnett & Leuty, PC, Austin, Texas, licensed in Texas. New Mexico estate planning services are provided by Shawn Barnett, Managing Attorney, licensed in New Mexico. This page provides general information, not legal advice; reading it does not create an attorney-client relationship.

Plan for care before you need it.

Call or text. The first hour of an estate planning consultation is free, and we'll quote your trust before you commit. Help in English or Spanish.