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MSBA ELDER LAW SECTION E-NEWSLETTER | February 6, 2017

MSBA ELDER LAW SECTION E-NEWSLETTER
February 6, 2017

 

Vol. 9, No. 26

E-Newsletter Editorial Staff:

Communications Committee Chair:  Margaret Kyle

Editor in Chief:  Rachel Schromen

Web Editor: Bridget-Michaele Reischl

Contributors: Rachel Schromen, Julian Zweber, Traci Sherman, Laura Orr, Jack Austin

NEWSLETTER HIGHLIGHTS

DHS ANNOUNCES NEW ESTATE RECOVERY RESTRICTIONS ON PAYMENT OF FUNERAL EXPENSES

Under Minnesota law, when a deceased person has received Medical Assistance (MA) for payment of “Long-Term care services” those benefits are subject to estate recovery under  Minn.Stat. § 256B.15 subd 1a(e) (2016).

The law also clarifies the order in which claims against the estate are collected. Minn. Stat. § 524.3-805(a)(2).   “Reasonable” funeral expenses have priority over payment of the MA claim. Unfortunately, the statute is silent regarding the definition of “reasonable.”

On January 25, 2017, the Department of Human Services (DHS) released a Bulletin that attempts to clarify what “reasonable” means for purposes of MA estate recovery.  Bulletin #17-21-02 lists several restrictions that may surprise and cause problems for the survivors of individuals who receive MA benefits.

The Bulletin divides funeral items into several categories:  “Reasonable Expenses,” “Reasonable Costs,” and “Unreasonable Expenses.”  Under the category of “Reasonable Costs,” the Bulletin provides the following guidance:

Casket (get a quote for the least expensive casket from two funeral homes within the county and set the expense guideline at the less expensive of the two quotes).

Cemetery plot (get quote from two cemeteries to determine reasonable cost of plot).

Grave marker-Lowest-cost stone marker.

DHS Bulletin # 17-21-02, DHS explains: Changes to MA estate recovery resulting from CMS approval of revised state plan amendment; a new statewide funeral expenses policy.

The Bulletin appears to place the burden on the county collection unit  to obtain the quotes and does not appear to take into consideration the difficulties this could pose, in particular, for out-state communities.  The county collection units may try to shift this burden to the survivors of the recipient of the MA benefits.

The Bulletin is not clear whether this policy is supposed to be enforced against pre-paid burial plans created and funded before implementation of the new restrictions.  Also unclear is whether the new policies will affect funds set aside in pre-paid plans or only affect use of the funds remaining in the decedent’s estate at death to pay for funerals.  It is clear that this policy covers privately funded funerals and not just county funded funerals.

This Bulletin does not apply to DHS guidelines for setting aside funds to pre-pay for funeral if the pre-payment plan is established prior to application for MA benefits.  The guidelines for pre-payment of funeral expenses prior to application are less restrictive than the new estate recovery guidelines.

If you have any concerns about implementation of these new estate recovery policies, you may want to discuss these concerns with your local state representative and senator.  You can find the names and contact information for your state representative and senator at: http://www.gis.leg.mn/iMaps/districts/.

Submitted by Traci Sherman in collaboration with Julian Zweber

WHAT YOU NEVER KNEW YOU NEVER KNEW: COMMUNITIES

The Elder Law Section's first sponsored CLE of 2017 occurred on Tuesday, January 24, 2017. Predictably, a presentation on technology-based resources had technical issues, specifically with the transmission of sound to the CLE's many remote participants. Anyone who was registered to attend should have received a follow-up e-mail from Tram Nguyen, our section services manager, including links to videos related to the CLE's content.

Whether you attended the CLE or not, I would like to highlight three characteristics of communities at my.mnbar.org shared in the CLE that are important for managing your digital footprint. What is your "digital footprint"? Dictionary.com will tell you its "one's overall impact, impression, or effect as manifested on the Internet."  Essentially, it is what can be found if someone searches for you or through content that you've posted.

While messages to the MSBA's old listservs dwelled in e-mail messages that your peers reviewed, deleted, or archived at will based upon their personal e-mail habits, messages to the Elder Law or Estate Communities live in the "cloud."

1. You can search anyone's available past posts to communities. The following how-to guide is written to apply to practicelaw, but know its information about performing a search applies equally to all forums to which you have access generally as a MSBA member or specifically as section member: http://my.mnbar.org/viewdocument/how-to-search-the-ne?CommunityKey=29af76bc-8932-490b-b55d-8b88276792f0&tab=librarydocuments.

 For example, if you would value the Estate Community's input on something that you are sure must have been discussed before, you can start with a search rather than a post.

2. Anyone can search your available past posts to communities. If you log into communities at my.mnbar.org, enter your profile, and click "My Contributions" --> "List of Contributions," you can view anything posted and searchable in your name in communities at my.mnbar.org. You can look up the same information for anyone else. If you want to edit any of your own posts, click into the specific post, click the downward arrow on the right side of the blue "Reply to Discussion" button and select "Edit." You can then modify the post's content or delete its content field-by-field.

3. Any attachment to a post is automatically posted to the community's library. Beware of this feature if you post to a community via your usual e-mail platform (rather than from within 

my.mnbar.org) and incorporate a graphic or another file as part of your e-mail signature. You may have uploaded content to a community's library without ever knowing it. 

The MSBA's new platform for intra-organization communication, communities at my.mnbar.org, is a robust and powerful tool for networking, support, and education. Take care to understand where your posted content exists, who can see it, and how you can modify it.

Submitted by Laura Orr, laura.orr@smrls.org.

CALL TO LAW STUDENTS

Dear Law Students:

The Elder Law Section of the Minnesota State Bar Association (MSBA) is seeking students interested in ELDER LAW and ESTATE PLANNING to sit on the Section’s Governing Council. If you are interested in this area of the law, sitting on the Governing Council is a fantastic way to meet eminent attorneys practicing in the field and to get valuable experience! Membership in the Section is FREE for students! Positions on the governing council last for 2 years and begin July 1, 2017. The time commitment is minimal: the Governing Council meets on the 3rd Friday of every other month, and members can attend meetings by phone. It looks great on a resume, and it’s fun too!

If you are interested in the Governing Council, contact the Nominations Committee co-chairs Jennifer Wright (jlwright1@stthomas.edu) or Marit Peterson (marit.peterson@elderjusticemn.org) before May 1, 2017.

In addition, the Elder Law Section’s Law Student Committee is also seeking law students to participate in our committee. The Law Student Committee traditionally plans panel events at each law school at which local elder law attorneys talk to students about working in the field. This is another great way to meet elder law practitioners! Students applying for a seat on the Governing Council are encouraged to participate in this committee as well. Can’t be on the Governing Council? Don’t sweat it – join our committee anyway! The time commitment is very minimal. As of January 2017, the committee has only St. Thomas students. This means that St. Thomas is the only school that will host a panel event this Spring. If you attend Mitchell Hamelin or the U of M and want a panel event at your school this Spring, join our committee and help us make it happen!

If you are interested in the Law Student Committee, contact chair Jack Austin (Jack@LarsonEbbLaw.com). Please contact me soon, as there is not much time left to plan panel events for the Spring semester!

EVENTS SCHEDULED IN THE NEXT MONTH –

EDUCATION COMMITTEE: Thursday, February 9, 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: February 17, 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: February 21, 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.  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.

PRO BONO COMMITTEE: February 17, 2017 at 12:00 p.m.  Meeting will be held at Chestnut Cambronne PA 17 Washington Ave N #300, Minneapolis, MN, 55401.  Questions may be directed to Jill Sauber at jsauber@maserlaw.com.

ELDER LAW NEWS

Estate Tax Won’t Be Repealed This Year, Predicts Top Estate Tax Attorney

Aid-in-Dying Laws Don’t Guarantee that Patients Can Choose To Die

What Medicaid Block Grants Would Mean for Seniors  

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: This is a simple one. What do you do when the address/contact information of a health care agent changes (or Attorney in Fact for that matter). I would view this as identifying information and contact information in the case of an emergency or the like.  I assume the forms are still valid, but in this case, I know the address will change in a couple months, so I may have to be proactive. Thanks!
 
A1:  I would either leave the old forms alone or do new ones.  If it is too late to do new ones, I would attach a separate sheet to the old forms to show the new contact information.  Change in address does not affect appointment of agents.  Clients often think old forms need to be re-done when addresses change.  There is no harm in doing new forms, if possible, or relying on the old forms when new ones are not possible.
 
Q2: I have an estate with one of six children named in a TODD predeceasing the Grantor.  The deceased Grantee had one son, so he should get 1/6th interest under the anti-lapse provisions of the statute.  I can try to work that into the Affidavit (Form 50.2.3) – how do you handle this?  I was considering an additional Affidavit of Survivorship to be signed identifying the grandson – or could add that language to the TODD Affidavit.  Do I need to file a Clearance Certificate for the deceased Grantee/son?”

A2: I think you're going to have to open a probate to identify the grandson's relationship to the predeceased son before the anti-lapse statute will apply.  An affidavit can be used to identify a person, but I don't believe an affidavit can be used to establish that the grandson is the deceased son's only child.  See Minn. Stat. 507.29.  You can open the son's estate informally.  The Regisrar's Statement should identify the grandson as the son's only child.  A certified copy of the Registrar's Statement should then be recorded to show that the grandson is the only child of the predeceased son.   

At first I did not think a clearance certificate would be required for the predeceased son, but after reviewing Minn. Stat. 507.071, subd. 23, I began to think that a separate clearance certificate for the son's interest in the property might be needed.  But then I remembered that the TODD had no effect until the grandfather died, at which time the son was already dead, so the son never held or acquired an interest in the property.  So there is no need for a clearance certificate to show that no MA claim exists against the son or the son's predeceased spouse.  Title would pass directly from the grandfather to the grandson under the anti-lapse statute.

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:

March 1, 2017 at 8:30 a.m.

May 10, 2017 at 8:30 a.m.

July 12, 2017 at 8:30 a.m.

September 13, 2017 at 8:30 a.m.

November 8, 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, February 9, 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:

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:

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 tnguyen@statebar.gen.mn.us

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