Do You Need a Lawyer to Set Up a Miller Trust in Texas?
HHSC doesn't say an attorney is required. It publishes a model trust for "people applying for Medicaid and their attorneys," and points anyone with questions about the legal consequences to an attorney of their choice. HHSC publishes its own fill-in form, so the core setup is completing it, naming a trustee, and opening the trust's bank account. Families with significant assets, gifts made in the last five years, a second marriage, or property in more than one state commonly bring in a Texas-licensed elder-law attorney anyway. This guide is informational only and is not legal advice.
What usually happens
You find the free HHSC form, and it looks simple. Then an elder-law attorney quotes $1,000–$2,500 to handle it. So you fill it in yourself, get it signed, and take it to the bank, where the branch has never opened one of these and says no.
Meanwhile the month is running out. In Texas, coverage can't start before the month the trust is funded, so a month that slips is another month of private-pay nursing care at $7,500–$11,000.
This applies when the person who needs care has gross monthly income over Texas's income cap of $2,982, whether you're their child, their spouse, or a professional helping them.
Free: the questions to ask a Texas bank before your first visit
7 questions for a five-minute phone call, so you find out whether a branch knows how to open this account before you make the drive. Emailed now, then 4 short follow-ups over the next 10 days — then we stop.
What HHSC's own materials say
HHSC's Appendix XXXVI to the MEPD Handbook says it helps people applying for Medicaid and their attorneys, and links a model QIT that meets MEPD requirements when properly completed but is not the only acceptable QIT form. HHSC does not say whether an attorney is required. It says HHSC attorneys may not give legal advice to the public, that staff recommending specific actions may constitute the unauthorized practice of law, and that "People seeking information on the legal consequences of these documents should consult an attorney of their choice." HHSC legal staff review every QIT. The model has settlor and initial-trustee signature lines and no notary block.
What the HHSC form involves
Texas Health and Human Services Commission publishes the trust as a fill-in form: HHSC Qualified Income Trust form . HHSC publishes a Sample QIT PDF linked from Appendix XXXVI of the MEPD Handbook. HHSC notes the sample meets the basic MEPD requirements for a QIT when properly completed, but is not the only acceptable QIT form.
Completing it means entering the information it asks for and signing it the way its instructions say. After that come the parts that are banking rather than law: the trustee opens a dedicated account and moves the applicant's income into it each month. See the step-by-step setup for the full sequence.
When families bring in an attorney anyway
The trust itself is one document, but it sits inside a larger Medicaid application. These situations raise questions the trust doesn't answer, and they're where an elder-law attorney's fee usually earns its keep:
- Significant savings or property beyond the applicant's monthly income.
- Gifts or transfers in the last five years, which Medicaid's look-back reviews.
- A spouse still living at home, whose own income and allowances affect the numbers.
- Property or accounts in more than one state.
- An applicant who can't sign for themselves and has no one holding a power of attorney or guardianship. State agencies generally ask whoever signs for the applicant to show that legal authority.
Finding an elder-law attorney in Texas
State Bar of Texas Lawyer Referral and Information Service is the lawyer referral service for Texas. Other resources for Texas families: Local legal aid office; Local area agency on aging; Local bar association; National Academy of Elder Law Attorneys (NAELA); Advocacy Inc.. The National Academy of Elder Law Attorneys also lists its members by state. For what attorneys typically charge, see what it costs in Texas.
With or without an attorney, the bank is the next hurdle
Whoever writes or completes the trust, the trustee still has to open the account, and most branches have never opened one. Free one-pager: the questions to ask before you drive to a branch, emailed now. Then 4 more short emails over the next 10 days — then we stop.