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MSBA ELDER LAW SECTION E-NEWSLETTER | April 2017

MSBA ELDER LAW SECTION E-NEWSLETTER
April 3, 2017

Vol. 9, No. 28
E-Newsletter Editorial Staff:
Communications Committee Chair:  Margaret Kyle
Editor in Chief:  Rachel Schromen
Web Editor: Bridget-Michaele Reischl
Contributors: Rachel Schromen, Julian Zweber

A MESSAGE FROM THE ELDER LAW SECTION

It is with great sadness that the MSBA Elder Law Section shares the news that attorney Lisa K. Pluto passed away on March 8, 2017.  Ms. Pluto was a well-known and respected elder law attorney, and a dedicated advocate to her clients.  She also served as chair of the Elder Law Section Medical Assistance Committee. 

Ms. Pluto is survived by her husband, Christopher, and their three young children – Morgan, Sydney and Graham.  A fund has been established to help pay for the college education of her children. 

If you would like to make a contribution to the fund, please send a check, payable to the “Pluto Children Education Fund” and mail it to:

Pluto Children Education Fund
c/o Pluto Legal, PLLC
100 E. Highway 14
Tyler, MN   56178

NEWSLETTER HIGHLIGHT: UPCOMING CLE

Save the Date! April 6 CLE on Emerging Issues in Assisted Living and Nursing Homes

On April 6, 2017, from 8:30 A.M. on 11:30 A.M., section member may gain valuable perspective on emerging issues in assisted living and nursing homes--and 3.0 standard CLE credits for $5. Participants may register to attend in person at the St. Paul Town and Country Club or remotely via teleconference or webcast. Breakfast will be provided beginning at 8 A.M. for participants who attend in person.

Five professionals from different sectors serving seniors will each present on an emerging issue observed in their field: Josh Berg (Director of Program Services, Accessible Home Space); Cathy Griffin (Home Care and Assisted Living Manager, Minnesota Department of Health); Lynn Gerard (Director of Nursing at Guardian Angels Care Center); Kris Lohrke (Director of the Office of Health Facility Complaints, Minnesota Department of Health); and Laura Orr (Staff Attorney, Southern Minnesota Regional Legal Services). 

The panel will then discuss questions from the moderator (Suzanne Scheller of Scheller Legal Solutions, LLC) regarding each issue.  Issues discussed will include the relationship of housing and services in residential care environments, care plans based on assessed need, electronic monitoring, consumer fraud, and investigation of suspected maltreatment.

Feel free to forward this announcement to interested colleagues who are not members of the Elder Law Section. They may attend the CLE free by joining the section ($25). They may call Tram Nguyen at 612-278-6316 to register.

Any other participants may register online.

EVENTS SCHEDULED IN THE NEXT MONTH –

EDUCATION COMMITTEE: Thursday, April 13, 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: April 21, 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: April 18, 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: April 21, 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@chestnutcambronne.com.

VULNERABLE ADULT COMMITTEE: April 5, 2017 at 12:00 p.m.  Meetings are held 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.

ELDER LAW NEWS

Hospitals Now Must Tell Medicare Patients When Care Is “Observation” Only

U.S. life expectancy will soon be on par with Mexico’s and the Czech Republic’s  

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: Client owns one-half of cabin property as a tenant in common with his sister. He wants to execute a Transfer on Death Deed to transfer his interest to his two sons. Client is married but spouse owns no interest in the cabin property. Both Client and spouse do not want spouse to take any legal interest in the property and client wants to use a TODD to make sure sons get it.

First, how important is it to identify him as a married man on the TODD if his spouse doesn't have any interest in the real estate and isn't a Grantor Owner? He asked me, and I couldn't answer.

Second, is there anything wrong with also saying in his will: I leave any interest I may have in cabin property in X County, MN, to my sons as tenants in common." I presume the TODD would take precedence and nothing would pass by the will unless somehow the TODD was ineffective. If so, is there any harm or risk in taking a belt-and-suspenders approach? Members for personal care must prove by convincing evidence that the care was needed and the payment was reasonable.  The test for reasonableness is the amount you would have to pay a stranger in the community to do the same thing.

A1:  Response to First Question  :

The spouse has marital rights in the cabin even though she is not an owner. She retains her marital rights if she does not join in the TODD conveyance. Minn. Stat. 507.071. subd. 2:

Subd. 2.Effect of transfer on death deed.

A deed that conveys or assigns an interest in real property, to a grantee beneficiary and that expressly states that the deed is only effective on the death of one or more of the grantor owners, transfers the interest to the grantee beneficiary upon the death of the grantor owner upon whose death the conveyance or transfer is stated to be effective, but subject to the survivorship provisions and requirements of section 524.2-702. A transfer on death deed must comply with all provisions of Minnesota law applicable to deeds of real property including, but not limited to, the provisions of sections 507.02507.24507.34508.48, and 508A.48If a spouse who is neither a grantor owner nor an owner joins in the execution of, or consents in writing to, the transfer on death deed, such joinder or consent shall be conclusive proof that upon the transfer becoming effective, the spouse no longer has or can claim any statutory interest or other marital interest in the interest in real property transferred by the transfer on death deed. However, such transfer shall remain an interest as identified in section 256B.15 for purposes of complying with and satisfying any claim or lien as authorized by subdivision 3.

If she does not join in the TODD, a question also could arise at some point whether the cabin is the couple's homestead.  A deed conveying title to a homestead must include the signatures of both spouses.  See Minn. Stat. 507.02 (in part):

507.02 CONVEYANCES BY SPOUSES; POWERS OF ATTORNEY.
If the owner is married, no conveyance of the homestead, except a mortgage for purchase money under section 507.03, a conveyance between spouses pursuant to section 500.19, subdivision 4, or a severance of a joint tenancy pursuant to section 500.19, subdivision 5shall be valid without the signatures of both spouses.

The spouse will not acquire any new rights in the cabin by signing the TODD. She will relinquish her rights by signing it. There is a special TODD form for this situation. See UCB Form 10.8.2.  Here is a link to the form:

https://www.cards.commerce.state.mn.us/CARDS/security/search.do?method=viewDocument&documentId=%7bC975821A-74E1-43D3-91E9-A1C6DDF7E991%7d&documentTitle=96600&documentType=7

This form is also available on MSBA practicelaw.

A1  Response to Second Question  :

A Will does not revoke a TODD.  The TODD prevails over the terms of a Will.  See Minn. Stat 507.071, subd. 19:

Subd. 19.Nonrevocation by will.

A transfer on death deed that is executed, acknowledged, and recorded in accordance with this section is not revoked by the provisions of a will.

Q2: While a purely discretionary trust would protect the availability of assets while the assets are held in the trust, are assets distributed from the trust to or for the benefit of the beneficiary taken into account for MA purposes?

A2: As Dick Hawke noted in a previous response, a discretionary trust (also called a "restricted access" trust) is another possibility. A fully discretionary trust, if properly drafted, does not require disability to make trust assets unavailable under MA guidelines.

To qualify for basic MA, the son must have a basis for eligibility. MA is available for persons with a disability, but there would then be an asset test. Expanded MA (called MA for adults without children) does not have an asset test, but the applicant is not eligible for Expanded MA if he would be eligible for another MA program.

MA applies Social Security disability criteria to determine whether an individual qualifies as a person with a disability. Even when a person might not qualify for Social Security disability benefits because of lack of work credits the person might still qualify as a person with a disability through the State SMRT process (Statewide Medical Review Team). The SMRT process applies Social Security disability criteria without regard to work credits. If the son is between 21 and 65, the failure to be able to prove disability might work to his advantage to allow him to receive Expanded MA benefits. This fact situation requires more review than a posting to this discussion board can provide.

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 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:

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 Kyle Law 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

The education committee will meet Thursday, April 13, 2017 from 9:30 AM to 10:30 AM via conference call.  Attendees should 1-877-226-9607 and use Conference ID8157976029#. 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:

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:

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 the member’s 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.

The Committee is hosted by Estate & Elder Law Service at Monroe Village, 1900 Central Avenue NE, Minneapolis, MN 55418 and meets at the nearby Monrie Village 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:

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:

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.