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MSBA Elder Law Section E-Newsletter | January 9, 2017

MSBA ELDER LAW SECTION E-NEWSLETTER

January 09, 2017

 

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, Laura Orr

 

NEWSLETTER HIGHLIGHT

CLE Free to Section Members: "Recent Changes in Internet-Based Resources"

If you are still adjusting to the MSBA's new communities or DHS' new Eligibility Policy Manual, you are not alone. On Tuesday, January 24, 2017, from 12 P.M. to 1 P.M., section members may attend a free one-hour CLE on the new Minnesota Health Care Programs (MHCP) Eligibility Policy Manual (EPM), the new listservs, and the legal research platform made free to MSBA members. Participants may attend via webcast or in person at the MSBA's Presidents Room at 600 Nicollet Mall, Suite 380, in Minneapolis.

Amber Hildebrandt, Esq. of Brouse, Woodke & Hildebrandt, PLLP will present for 30 minutes about the new Eligibility Policy Manual. Ms. Hildebrandt gave a well-received presentation on this subject at the 2016 Minnesota Elder Law Institute. She will address both structural and content changes to the manual as well as practical insights about handling appeals and disputes since the new manual became effective.

Joe Kaczrowski, Esq., Online Services Director for the MSBA, will present primarily about Communities, the MSBA feature that replaced listservs, includes practicelaw, and functions as a searchable archive of insights and resources contributed by MSBA members across the state. Mr. Kaczrowski will also explain the legal research platform currently available free to MSBA members. (The MSBA transitioned from Fastcase to Casemaker--and back again--during the past seven months.)

Anyone may register to attend this CLE at 

https://www.mnbar.org/Meetings/Meeting?ID=1383#.WGvYRBsrKUk

 Registration is free for section members. People who are not currently section members may attend for free by becoming a section member ($25.00). Please invite people who are not section members to call Tram Nguyen at 612-278-6316 to take advantage of this offer. 

Newsletter highlight submitted by Laura Orr, laura.orr@smrls.org.

EVENTS SCHEDULED IN THE NEXT MONTH –

COMMUNICATIONS COMMITTEE: January 11, 2017 at 8:30 a.m. at the law office of Margaret Kyle at 2332 Lexington Ave. N., Roseville, MN 55113.

The Communications Committee oversees the weekly Elder Law E-Newsletter and the Elder Law Section website.  All members are welcome, and new members encouraged to join!  For more information, please contact Margaret Kyle at margaret@kylelawmn.com

VULNERABLE ADULT COMMITTEE: January 11, 2017 at 12:00 p.m. at Ken LaBore's office located at 5001 Chowen Avenue South, Minneapolis, MN 55410.  Ken always provides pizza and drinks.  Contact Ken for more information at Klabore@MNnursinghomeneglect.com or 612-743-9048.

EDUCATION COMMITTEE: Thursday, January 12, 2017 from 9:30 AM to 10:30 AM via conference call.  Attendees should 1-877-226-9607 and use Conference ID 8157976029#. Questions may be directed to Laura Orr at laura.orr@smrls.org.

NEW LAWYERS COMMITTEE:  January 12, 2017 at 12:00 p.m. at Chestnut Cambronne PA 17 Washington Ave N #300, Minneapolis, MN, 55401.

Each meeting has a different topic based upon input from the new lawyers committee.  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.

This month will be a “question and answer” session, and new lawyers are encouraged to bring all of their “burning questions” to be answered by experienced elder law attorneys.  

For more information, 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.

SECTION CLE:  "Recent Changes in Internet-Based Resources for Elder Law Attorneys," Tuesday, January 24, 2017 from 12:00 PM to 1:00 PM either remotely or at the Presidents Room of the MSBA Office at 600 Nicollet Mall, Suite 380, Minneapolis, MN 55402.  Register at http://www.mnbar.org/Meetings/Meeting?ID=1383#.WGvSTBsrKUk. Registration is free for section member.

ELDER LAW NEWS

Study Ranks States on Elder Abuse Protections: MN Ranks 25th

Why the Recently-Revised Nursing Home Regulations are Vital for Nursing Home Residents

Rule Change Could Push Hospitals to Tell Patients About Nursing Home Quality

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: I have elderly clients who own real estate that is part of a Minnesota Land Trust.  Does anyone know if this asset would be exempt for purposes of MA?

A1: You will need to do more digging to see who/what actually owns what.  The trust could own everything, in which case your client is more akin to a renter.  On the other hand, the trust could just own the land and the individual own the structures that are on the land.  Land Trusts set up under HUD are this way.  So, while there may be restrictions on sale, or other encumbrances, your client would still have an ownership interest in the property to be disclosed to MA.  This would be exempt property as long as it was used as the homestead of the CS or a dependent or qualifying family member per the usual MA provisions.  It is doubtful that trust restrictions by themselves would make the property exempt, but any legal impediment that prevents the property from being used to pay for care would be sufficient to make the property unavailable and therefore not to be counted against asset limits.

Q2 - What special consideration should I be taking when drafting a will for the community spouse after the other spouse has gone on MA-LTC?

A2 - There is no requirement under MA law or Minnesota statute that the community spouse leave any part of his or her estate to the MA-LTC spouse.  Instead, MA requires that the MA-LTC spouse claim and receive from a predeceased community spouse's estate everything that the MA-LTC spouse is entitled to claim as a surviving spouse.  If the community spouse's Will leaves nothing to the surviving spouse, the surviving spouse must claim a life estate in the deceased spouse's homestead, one car, household goods and furnishings, personal effects and other personal property up to $15,000 in value (as of August 1, 2016), and half of the rest or the first $75,000 (as of August 1, 2016), whichever is less.  The surviving spouse might also be entitled to the family allowance while the deceased spouse's estate remains open.  The surviving spouse has special election rights and an extended period to claim them under Minn. Stat. § 524.2-215.  The penalty for failure to elect is a period of ineligibility for long-term care services under medical assistance.  The failure to elect is treated the same as a transfer of assets by the surviving spouse for less than fair value.

    If there are family members who would benefit from a share in the community spouse's estate, after the MA-LTC spouse's elective share rights are satisfied in full, the community spouse's Will should leave nothing to the MA-LTC spouse.  If the MA-LTC spouse dies first, no harm is done.  If the community spouse dies first, this provides an opportunity for the remainder interest in the homestead to devolve to the children instead of to the MA-LTC spouse.  This might be the only opportunity to protect any part of the couple's marital assets for their children or other descendants.

    A simple Will that leaves the decedent's estate to his or her "descendants per stirpes" will disinherit the surviving spouse, subject to the surviving spouse's right to claim an elective share of the decedent's estate.  I never draft a Will that gives the elective share to the surviving spouse.  I prefer to wait to see whether there is a surviving spouse on MA when the community spouse dies and let the surviving spouse or the surviving spouse's legal representative exercise the election rights.  The Will can include language explaining why nothing is being left to the surviving spouse.  I use the following language:  "I leave nothing to my spouse in the belief that she will have sufficient resources available to her from other sources [and that her descendants will see to her needs]." 

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 monthly 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

EDUCATION COMMITTEE: Thursday, January 12, 2017 from 9:30 AM to 10:30 AM via conference call.  Attendees should 1-877-226-9607 and use Conference ID 8157976029#. Questions may be directed to Laura Orr at laura.orr@smrls.org.

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:

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 2016-2017 MA Committee meeting will be at 3:30 p.m. on the third Tuesday of every other month:

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

April 18, 2017 at 3:30 p.m.

June 27, 2017 at 3:30 p.m.

August 15, 2017 at 3:30 p.m.

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

December 19, 2017 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 Traci 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:

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.