Medicaid estate recovery program (MERP)

Sam Moak

Editor's Note: The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

You would not believe what I have found right here in Walker County, Texas with regards to “home grown” legal work. Hand written, homemade, or instruments that have nothing to do with what they state they are, all purporting to convey property. 

A person may not practice law in the State of Texas unless they are licensed by the State Bar of Texas per Section 81 of the Texas Government Code. In fact, the unauthorized practice of law is prohibited by Section 83 of the Texas Government Code. However, there is always the person who is going to do it himself/herself. Most of these homegrown documents or instruments end up creating more problems and expense.

I will not accept a new client who comes in and needs me to “immediately give him/her a deed” for their transaction. If they are not patient enough to have the job done correctly, then that is a warning flag. While it is true you can find a form deed on the internet or at an office supply store, that does not mean it is a valid deed, is properly executed and notarized, has a valid legal description or for that matter even conveys the property it purports to convey. Not to mention whether a review of the chain of title or tax status has been performed.

What would you do if one day you received a notice of eviction while sitting in “your home” because it turns out the person you purchased the home from did not pay off their lender? Or perhaps you have decided to sell your property and find out that the conveyance to you when you purchased the property was not valid. Think this could not happen to you? While I cannot imagine spending six (6) figures for a piece of property without having the title examined or purchasing title insurance, I am aware of such an instance happening right here in Walker County. Unfortunately, the seller did not have title to the property and the buyer paid cash. 

Each year thousands of lawsuits are filed involving title problems. Many title problems can arise which cause the complete or partial loss of your home or business property. Even the most careful search of the public records will not find every title problem. Because some problems are hidden, your title may appear to be perfect when in fact there may be a problem that is a land mine waiting to explode. 

However, the purchase or sale of real estate is not the only time you NEED an attorney. Many folks try to represent themselves in family law matters. Again, while you can find forms for divorces and child custody online, this does not mean you understand the subtleties in the law when you complete the forms, that they are completed accurately or if they are even the correct papers. Having the error of your ways pointed out to you in open court is no fun. Finding out years later you did not resolve all the issues of your former marriage is not pleasant either. Still obligated for debt from the marriage? Real estate not conveyed properly? Issues with child custody, visitation or support? All these matters hinge on the divorce being done properly.

Another area the do it yourself person attempts to handle on their own is estate documents. Yes there are a plethora of documents available online in this area. However, the value of having an attorney represent you in preparing these documents is their knowledge of the law. An attorney can help you avoid mistakes and pitfalls in this area and make sure the documents that are prepared will work. Imagine your loved ones finding out after you are injured or incapacitated, that the documents you prepared as a power of attorney will not work. Worse yet, what if they find out after your death the “Will” you prepared is not valid or is lacking in formalities resulting in additional expense. These are not times when you want to add to your loved ones’ burdens. I have handled estates that involved “home grown” legal instruments. While the person who wrote the document may have understood what they wanted, it did not translate as such in the document or could not be done legally without much more work. The additional time and legal expense is not appreciated. 

When building a house you would not do it without the expertise of a builder? Whoops! I’ve seen that happen too. Sure you can act as your own contractor, but you better really know what you are doing. A home is often the largest single investment a person or couple makes. Recently I was relayed an interesting story by a client who drew the house plans for a couple who decided to “sub out” the construction themselves. Seems that the draftsman happened to stop by the job site the day they were pouring their slab. Everything was formed up and as the concrete trucks were arriving, he asked the couple “Is this house going to have indoor plumbing?” “Yes, you know that. It has two (2) bathrooms and the kitchen.” Responded the couple. “Well then you better run the plumbing before he pours that slab.” I’m not making this up! 

If you are planning to purchase/sell real estate, buying/selling a business, starting a business, filing for divorce, working on some estate planning, or building a house, then you should seek the assistance of an attorney before making a potentially big mistake. These are not the times for doing it yourself (DIY) or a shadetree “attorney.” 

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com.