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MSBA ELDER LAW SECTION E-NEWSLETTER | December 5, 2016

MSBA ELDER LAW SECTION E-NEWSLETTER

December 05, 2016

Vol. 9, No. 25

E-Newsletter Editorial Staff:

Communications Committee Chair:  Margaret Kyle

Editor in Chief:  Rachel Schromen

Web Editor: Bridget-Michaele Reischl

Contributors: Rachel Schromen, Julian Zweber

 

NEWSLETTER HIGHLIGHT

Please be sure to join the MSBA Elder Law Community to engage in discussions regarding questions and advice from members of the Minnesota State Bar Association Elder Law Section. 

Much like the elder law listerv, the MSBA Elder Law Community allows for questions to be posted on a discussion board, which is searchable and all discussions are archived.  You may also choose to receive discussion posts and updates via email be selection the option in your preferences. 

For additional information regarding the MSBA Elder Law Community, or if you have any questions, please contact the Minnesota State Bar Association.  

EVENTS SCHEDULED IN THE NEXT MONTH –

GOVERNING COUNCIL: December 16, 2016 at 3:30 p.m. at Estate & Elder Law Services, Monroe Village, 1900 Central Avenue NE, Minneapolis, Minnesota 55418. All are welcome.  For further information, please contact John Kantke Chair, at john.kantke@voamn.org.  The meeting takes place in the building’s conference room, enter from the parking lot and wait for someone to open the security door.

MA COMMITTEE MEETING: December 20, 2016 at 3:30 p.m. at Estate & Elder Law Services, Monroe Village, 1900 Central Avenue NE, Minneapolis, Minnesota 55418.  This study group analyzes Elder Law Section member questions and case studies and discusses MA administrative policies and procedures. For directions, or to attend by phone, please contact Tracy Sherman with Pluto Legal, PLLC, at tsherman@plutolegal.cHYPERLINK "mailto:tsherman@plutolegal.com"om or 50HYPERLINK "tel:612-336-2948"7-247-5900 at least 24 hours in advance of the meeting. Topics for the meeting may be submitted  to tsHYPERLINK "mailto:tsherman@plutolegal.com"herman@plutolegal.com under the subject heading “MA Committee Topic”, or faxed to 507-247-5868.

PRO BONO COMMITTEE: December 16, 2016 at 12:00 p.m. at Chestnut Cambronne PA 17 Washington Ave N #300, Minneapolis, MN, 55401. Cheryl Hennen from the Office of Ombudsman for LTC will present and discuss potential pro bono opportunities.  Questions may be directed to Jill Sauber at jsauber@maserlaw.com.

ELDER LAW NEWS

Dementia Rates Decline Sharply Among Senior Citizens

What would block grants or limits on per capita spending mean for Medicaid?  

Submitted by Rachel Schromen, Rachel@SchromenLaw.com

Please submit news articles of interest to Rachel@SchromenLaw.com

QUESTIONS AND ANSWERS FROM THE MSBA COMMUNITIES

Q1: Husband's wife received long-term care and medical assistance.  While wife was in nursing home, shortly before she died, husband sold homestead and purchased a new home in his name alone.

Questions:

1.  How do we find out if there is a M.A. lien on husband's current homestead?

2.  If there is a lien, how is it enforced upon husband's death?

One further note:  Recently husband signed a Transfer on Death Deed to his daughter as grantee.

A1: There should be no lien against the homestead.  If there is, it was recorded improperly and DHS should release it.  

There will be a claim against the husband's estate when he dies, to recover the MA paid on behalf of his wife.  See Minn. Stat. 256B.15.

All transfer on death deeds require a clearance certificate from the county MA collection unit to determine whether an MA claim exists against the decedent's estate.  Title will not be marketable without a clearance certificate.  If the certificate shows a claim against the decedent's estate, the claim will have to be resolved before a "clean" clearance certificate will be issued.

Q1a: What would prevent husband from taking out a second mortgage to reduce the equity in the homestead so the M.A. claim would be less collectible?  Or what if he just signed a Quit Claim Deed to his daughter now, so that he owns no homestead subject to a M.A. claim upon his death?

A1a: If you review Minn.Stat. 256B.15, subd. 2b, you will see that a surviving community spouse is not supposed to divest assets to avoid an estate recovery claim.  Converting homestead equity into cash will not protect the cash from an estate recovery claim.  On the other hand, there is no restriction against using homestead equity to pay for the surviving spouse's ordinary living expenses and other needs.  Gifting is not permitted.

Notwithstanding the fact that these restrictions on what a surviving spouse can do with his or her property are probably unconstitutional, the purpose of these provisions is to allow tracing of divested assets to make them subject to estate recovery.

Q2: Client wanted to transfer his home to his longtime girlfriend prior to his death.

 I prepared a quit claim deed from client to client and girlfriend as joint tenants which was signed and recorded in Hennepin County. 

 After he died, I prepared an Affidavit of Survivorship for the girlfriend to sign, and sent it to the county to be recorded but have not gotten it back.

We now noticed that in the QCD, the girlfriend's name is misspelled.  It says "Burnes" but should have been "Burns".  It is spelled correctly in the taxpayers section at the bottom and also on the Affidavit of Survivorship.

Is this OK or do have do something to correct the QCD, and if so, what could I do since the grantor is now deceased.

A2: Title Standard No. 1 [Names Sounding the Same] applies.

"Names of individuals which sound the same should be presumed identical unless there is evidence to the contrary."

An Affidavit of Identity by the girlfriend could also be used to verify that the person spelled "Burns" in the Affidavit is the same person as the grantee spelled "Burnes" in the QCD.

Contributing attorney: Julian J. Zweber, julianzweber@qwestoffice.net

This new section highlights common questions and answers that arise in the MSBA Communities regarding elder law.   Please submit any interesting questions/answers you see to  Rachel Schromen at Rachel@SchromenLaw.com

NEWLY FORMED DIVERSITY COMMITTEE

At the most recent Elder Law Council Meeting, a Diversity Committee was formed.  Jeanine L. Johnson is serving as chair of this committee.  The committee is seeking additional members.  Being that the committee is newly formed, meeting dates and times are to be determined.  Please contact Jeanine L. Johnson at jjohnson@meyernjus.com.

ELDER LAW CASES

Please submit Elder Law cases of interest to Rachel@SchromenLaw.com

STATUTES, REGULATIONS, BULLETINS

Please submit statutes, regulations, or bulletins of interest to Rachel@SchromenLaw.com

ELDER LAW SECTION ACTIVITIES

ADVOCACY COMMITTEE:

Contact David Rephan at drephan@HYPERLINK "mailto:drephan@chestnutcambronne.com"chestnutcambronne.com or Suzy Scheller at suzy@schellerlegalsolutions.HYPERLINK "mailto:suzy@schellerlegalsolutions.com"com for more information.

COMMUNICATIONS COMMITTEE:

The Communications Committee oversees the weekly Elder Law E-Newsletter and the Elder Law Section website.  The committee is re-forming, and is composed of the newsletter editor, web editor, associate editors and contributors, and any other interested section members.  Meetings are to be held every other month to review issues related to the newsletter and the website, and to conduct an annual member survey.  Upcoming meetings for the Communications Committee are as follows:

January 11, 2017 at 8:30 a.m.

The meeting location is at the law office of Margaret Kyle at 2332 Lexington Ave. N., Roseville, MN 55113.

Anyone interested in serving on the committee or suggesting ideas for the newsletter or website may contact Communications Committee chair Margaret Kyle at margaret@kylelawmn.com

GOVERNING COUNCIL: 

Meetings for the Elder Law Section Governing Council are set every other month, on the third Friday of that month, at 3:30 p.m.  The remaining meetings for the Elder Law Section Governing Council for the year ending in June 2017 are as follows:

December 16, 2016 at 3:30 p.m.

February 17, 2017 at 3:30 p.m.

April 21, 2017 at 3:30 p.m.

June 16, 2017 at 3:30 p.m.

Please be reminded that the meeting location is: Estate & Elder Law Services, Monroe Village, 1900 Central Avenue NE, Minneapolis, Minnesota 55418. The meeting takes place in the building’s conference room. There are a few parking spaces behind the building and lots of street parking. People should walk to the back of the building and come to the back door that faces directly into the meeting room. For further information, please contact John Kantke at john.kantke@voamn.org or 612-676-6300.

MA COMMITTEE MEETING: 

The 2015-2016 MA Committee meeting will be at 3:30 p.m. on the third Tuesday of every other month:

December 20, 2016 at 3:30 p.m.

The Medical Assistance Committee is a study group to analyze Elder Law Section member questions and case studies and to discuss administrative policies and procedures in relation to Medical Assistance in Minnesota, Lisa Pluto, of Pluto Legal, PLLC, is Committee Chair.  For directions, or to attend by phone, please contact Tracy Sherman with Pluto Legal, PLLC, at tsherman@plutolegal.cHYPERLINK "mailto:tsherman@plutolegal.com"om or 50HYPERLINK "tel:612-336-2948"7-247-5900 at least 24 hours in advance of the meeting. Topics for the meeting may be submitted to tsHYPERLINK "mailto:tsherman@plutolegal.com"herman@plutolegal.com under the subject heading “MA Committee Topic”, or faxed to 507-247-5868.

Please be reminded that the meeting location is: Estate & Elder Law Services, Monroe Village, 1900 Central Avenue NE, Minneapolis, Minnesota 55418. The meeting takes place in the building’s conference room. There are a few parking spaces behind the building and lots of street parking. People should walk to the back of the building and come to the back door that faces directly into the meeting room.

NEW LAWYERS COMMITTEE:

Meetings will be held the second Thursday of every other month at noon.  Each meeting has a different topic based upon input from the new lawyers committee.  Minutes of past meetings are available. The meetings are formatted so that a seasoned elder law attorney will speak for the first half hour, and the second half hour will be questions and answers.

Upcoming meeting dates:

January 12, 2017 at 12:00 p.m.

March 9, 2017 at 12:00 p.m.

May 11, 2017 at 12:00 p.m.

Meetings will be held at Chestnut Cambronne PA 17 Washington Ave N #300, Minneapolis, MN, 55401. Please contact Pook Grathwol at pgrathwol@chestHYPERLINK "mailto:pgrathwol@chestnutcambronne.com"nutcambroHYPERLINK "mailto:pgrathwol@chestnutcambronne.com"nne.com or (612) 336-2919 or Jeanine Johnson at jjohnson@meyernjus.com or (612) 630-3254.

PRO BONO COMMITTEE:

Meetings will be held every two months, on the third Friday of that month, from 12-1pm. Meetings will be held at Chestnut Cambronne PA 17 Washington Ave N #300, Minneapolis, MN, 55401.

Upcoming meeting dates:

December 16, 2016 at 12:00 p.m.

February 17, 2017 at 12:00 p.m.

April 21, 2017 at 12:00 p.m.

June 16, 2017 at 12:00 p.m.

Questions may be directed to Jill Sauber at jsauber@maserlaw.com.

VULNERABLE ADULT COMMITTEE:

Meetings are held from 12:00 – 1:30 at Ken LaBore's office located at 5001 Chowen Avenue South, Minneapolis, MN 55410.  Ken always provides pizza and drinks. 

Upcoming meeting dates:

January 11, 2017 at 12:00 p.m.

April 5, 2017 at 12:00 p.m.

Contact Ken for more information at Klabore@MNnursinghomeneglect.com or 612-743-9048.

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The MSBA Elder Law Section’s Website contains information about section committees and leadership.  It also contains useful practice resources.

You may email Bridget-Michaele Reischl at bridget@decorolaw.com to suggest changes to website content.

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Please send E-Newsletter contributions by 10 p.m. on the last day of each month to Rachel Schromen at Rachel@SchromenLaw.com.

If you do not wish to receive this E-Newsletter, send your request to be removed from the mailing list to Tram Nguyen at nguyen@statebar.gen.mn.us

Current and prior E-Newsletters are posted on the website for the MSBA Elder Law Section and are available here