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MSBA Elder Law Section E-Newsletter | July 2017

MSBA ELDER LAW SECTION E-NEWSLETTER
July 3, 2017

Vol. 9, No. 31
E-Newsletter Editorial Staff:
Communications Committee Chair:  Rachel Schromen
Editor in Chief:  Emily Flesch
Web Editor: Bridget-Michaele Reischl
Contributors: Rachel Schromen, Julian Zweber, Emily Flesch, Laura Orr 

NEWSLETTER HIGHLIGHTS

A Note from the Section Chairperson

After the Elder Law Section's annual meeting adjourned on Friday, June 23, I called to order the first meeting of the 2017-18 section governing council. Having benefitted from knowing many of our section’s hard-working, committed, and talented members, I view it as a great honor and responsibility to help guide the section’s work in the coming year. Two themes guide my approach to section objectives:

  • Access. Access to justice and legal information for older Minnesotans. Access to information and support for attorneys serving older Minnesotans.
  • Engagement. Engagement of section members in meeting the needs of older Minnesotans and supporting fellow members of the bar. Engagement of attorneys (including future attorneys) in serving populations not yet adequately represented in Minnesota's bar.

To provide context to these themes, I want to introduce you to recent profiles of our section, our bar, and the state of access to justice in Minnesota:

  • Our section profile produced in June 2017 shows that we are a somewhat U-shaped section with our two largest demographics having 1) less than 10 years in practice and 2) more than 30 years in practice.
  • A 2016 survey of registered attorneys shows that racial and ethnic minority communities remain underrepresented in Minnesota's bar.
  • A 2015 infographic produced by Minnesota Bench & Bar reflects that civil legal aid programs must turn away two-thirds of individuals eligible for services due to a lack of resources.

I approach these themes as a 34-year-old legal aid attorney. I've never known Medicaid without transfer penalties. Post-Barg amendments to Minn. Stat. 256B.15 had passed before I took the bar exam. I've never sent a client a bill. I've never drafted a will. I want to acknowledge that I don't know what I don't know. And that's why I need you.

I'd like to see your experiences in advocacy and client service in our newsletter and on my.mnbar.org. I'd like to see your name on the roster for any of our section's 15 standing committees, especially our newest Diversity Committee. I'd like to hear your ideas for the new MSBA year as our section prepares its work plan for 2017-18.

The MSBA requests work plans from each section by August 31,2017. The Elder Law Section's executive committee will meet on Wednesday, July 26, 2017, to draft a work plan for review and approval of the governing council at its August 18 meeting.

If you'd like to share thoughts, ideas, or concerns for the year, feel free to send me at line at laura.orr@smrls.org or give me a call at 651-894-6924. Thank you for your work serving older Minnesotans.

Laura Orr
laura.orr@smrls.org

Annual Meeting and Election Results

The Section’s Annual Meeting was held on June 23, 2017 at Estate and Elder Law Services in Minneapolis, Minnesota.

The following council members were elected to serve on the Section’s Governing Council from July 1, 2017 to June 30, 2019:

Stuart Bear
Callyn Bedker
Lauren Fink
Genevieve Gaboriault
Brenna Galvin
Jean Gustafson
Richard Hawke
John Kantke
Kenneth LaBore
David Rephan
Jill Sauber
Jeff Schmidt
Rachel Schromen
Lori Skibbie
Laura Zdychnec

Law Student Members:

Traci Sherman – Mitchell Hamline
Francine Kuplic – University of St. Thomas

Committee Chairperson Appointments:

MSBA Assembly: Mary Ebb, Voting Representative: Dan Steinhagen, Alternate Representative
Advocacy Support: Laura Zdychenec, Chairperson
Awards: Julian Zweber, Chairperson: Stuart Bear, Vice Chairperson
Bylaws: Lauren Fink, Chairperson
Communications: Rachel Schromen, Chairperson
Diversity: Jean Gustafson, Chairperson
Education: Genevieve Gaboriault, Chairperson
Elder Law Institute: Laura Orr, Chairperson
Law Student: Jack Austin, Chairperson: Dan Steinhagen, Vice Chairperson
Legislative: Julian Zweber, Chairperson: Mark Anderson, Vice Chairperson
Medical Assistance: Callyn Bedker, Chairperson
New Lawyers: Jill Sauber, Chairperson: Pook Grathwol, Vice Chairperson
Nominating: Marit Peterson, Chairperson
Pro Bono: Maya Missaghi, Chairperson
Strategic Planning: Brenna Galvin, Chairperson; Dick Hawke, Vice Chairperson
Vulnerable Adult: Marit Peterson, Chairperson

Submitted by: Rachel Schromen, rachel@schromenlaw.com

2017 Elder Law Institute

The 2017 Elder Law Institute is scheduled for October 12 and 13, 2017.   Registration is now open on Minnesota CLE’s website.

EVENTS SCHEDULED IN THE NEXT MONTH –

COMMUNICATION COMMITTEE MEETING: July 12, 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 Rachel Schromen, rachel@schromenlaw.com

NEW LAWYERS COMMITTEE MEETING: July 13, 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@chestnutcambronne.com or (612) 336-2919.

ELDER LAW NEWS

Senate Health Care Bill Includes Deep Cuts to Medicaid

If You Need Long-Term Care, It Matters Where You Live – Minnesota named one of the best states to get care according to a new report by AARP

Please submit news articles of interest to emily.flesch@mitchellhamline.edu.

QUESTIONS AND ANSWERS FROM THE MSBA COMMUNITIES

Q1:  The community spouse has come into some funds and would like to make gifts to grandchildren. Other spouse has been on Elderly Waiver programs for a number of years with no breaks in coverage. Considering that once a case is approved for a married individual, the annual reviews are concerned with asset values of the spouse receiving benefits, is there no restriction of the community spouse’s use of their own assets?

A1:      Starting in the month after the MA spouse is approved for benefits, the assets of the community spouse are no longer taken into account in determining the eligibility of the MA spouse. 42 USC 1396r-5(c)(4); Minn. Stat. 256B.059, subd. 5, clause (c). The community spouse then can do whatever he or she wants to do with his or her assets EXCEPT make uncompensated transfers (gifts). Uncompensated transfers made by either spouse before, during or after an application for benefits will cause a penalty period for the spouse applying for or receiving MA. 42 USC 1396p(c)(1)(A); Minn. Stat. 256B.059, subd. 1.

Q2:      I have my first estate with Section 256B.15 since the 2009 amendments.

H and W married and own homestead in joint tenancy.  W enters nursing home after 2009 and receives MA. W dies 2015.  H resides in the homestead for the rest of his life and dies 2016.  Client initiates probate of H's estate and is appointed PR.  Homestead only significant asset.  County files a statement of claim in probate in excess of value of homestead.  I understand the county may use Section 256B.15 to argue it is entitled to all of the proceeds of the sale of the homestead despite Barg and Perrin.  I am trying to get my arms around the hurdles of an argument that the county is only entitled to the value W's undivided one-half interest at the time of her death

I wish to confirm I did not miss any cases on point.  In my research I did not turn up any case overturning Barg or Perrin or interpreting Section 256B.15 since 2009.  Also, does anyone know of any cases pending on this issue challenging the statute?  Has the federal government approved subdivision 2b?

A2:      The Court of Appeals in the Estate of Grote case says that the claim extends to the full value of the homestead, citing the old maxim that a joint tenancy is "an interest in the whole and an interest in the half." Here is a link to it:

http://caselaw.findlaw.com/mn-court-of-appeals/1185529.html

This case was decided shortly after Barg, but without taking Barg into account. It fails to consider whether anything transfers in a joint tenancy from the MA spouse to the Community Spouse when the MA spouse dies, as Barg requires to allow a claim in the Community Spouse's estate. I believe it was wrongly decided based on the analysis of federal law in Barg. Grote probably gave DHS the idea for the 2009 amendments to avoid the result in Barg. The 2009 amendments give the MA spouse an interest in all of the Community Spouse's estate so nothing transfers to the Community Spouse when the MA spouse dies--the Community Spouse and the MA spouse already own all marital assets together. See Minn. Stat. 256B.15, subd. 2b. I'm not sure that you have enough equity at risk to justify a challenge to Grote. It cost the Barg estate over $62,000 to win the Barg case. Within a year DHS persuaded the Legislature to amend 256B.15 to avoid any other Barg cases. A challenge to Grote would have to start with a challenge to the Legislature's power to amend 256B.15 to avoid the result in Barg.

Practice tip: Never ever, if possible, allow real property to remain in joint tenancy between spouses when one spouse applies for MA. Transfer the applicant's interest to the Community Spouse or to another protected relative. There is no transfer penalty for transfers of the homestead between spouses or to a disabled child, a child under age 21, to a sibling with an equity interest in the property who was residing in the homestead for a year prior to the transfer, or to a child who provided two years of needed care. Alternatively, the joint tenancy can be transferred to anyone for fair value. See Minn. Stat. 256B.0595, subd. 3.

Submitted by: Rachel Schromen, Rachel@SchromenLaw.com and Julian Zweber, julianzweber@qwestoffice.net

NEWLY FORMED DIVERSITY COMMITTEE

On August 16, 2016, the Elder Law Council established our section’s Diversity Committee, with Jeanine Hill as its original    chairperson. Jean Gustafson of Brainerd will be chairing the committee for the coming year.  If you would like to join the committee, please contact  Jean Gustafson at jean@guslaw.net.

ELDER LAW CASES

Please submit Elder Law cases of interest to emily.flesch@mitchellhamline.edu

STATUTES, REGULATIONS, BULLETIN

Please submit statutes, regulations, or bulletins of interest to emily.flesch@mitchellhamline.edu

ELDER LAW SECTION ACTIVITIES

ADVOCACY SUPPORT COMMITTEE:

Contact   Laura Zdychnec at lzdychnec@mnelderlaw.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:

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 Rachel Schromen, rachel@schromenlaw.com

GOVERNING COUNCIL: 

The Elder Law Section Governing Council will meet at the following dates and times during the MSBA year ending in June 2018:

August 18, 2017 3:30 pm @ Monroe Village Community Room
October 12, 2017 7:30 am @ MSBA Presidents Room
December 15, 2017 3:30 pm @ Monroe Village Community Room
February 16, 2018 3:30 pm @ Monroe Village Community Room
April 20, 2018 3:30 pm @ Monroe Village Community Room
June 15, 2018 3:30 pm @ Monroe Village Community Room

Monroe Village is located at 1900 Central Avenue NE, Minneapolis, Minnesota 55418. Parking is available behind the building and along adjacent streets. In-person attendees should enter through the door facing the parking lot behind the building. This door leads directly into the community room. For further information, please contact Tram Nguyen, section services manager, at tnguyen@mnbar.org or 612-278-6316.

MA COMMITTEE MEETING: 

The 2017-2018 Medical Assistance (MA) Committee meetings will be at 3:30 p.m. on the third Tuesday of even-numbered months:

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 members’ questions and case studies and to discuss administrative policies and procedures in relation to Medical Assistance in Minnesota.  For directions, or to attend by phone, please contact Traci Sherman with Pluto Legal, PLLC, at tsherman@plutolegal.com or 612-336-2948 at least 24 hours in advance of the meeting. Topics for the meeting may be submitted to tsherman@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. Parking is available behind the building and along adjacent streets. In-person attendees should enter through the door facing the parking lot behind the building. This door leads directly into the community room.

NEW LAWYERS COMMITTEE:

Meetings will be held the second Thursday of even-numbered months 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:

July 13, 2017 at 12:00 p.m.
September 14, 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@chestnutcambronne.com or (612) 336-2919.

PRO BONO COMMITTEE:

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

Upcoming meeting dates:

August 18, 2017 at 12:00 p.m.
October 20, 2017 at 12:00 p.m.
December 15, 2017 at 12:00 p.m.

Questions may be directed to Maya Missaghi at mayamissaghi@gmail.com

VULNERABLE ADULT COMMITTEE:

Contact Marit Peterson  at marit.peterson@elderjusticemn.org or 651-440-9303, if you are interested in participating in this committee. 

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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 Emily Flesch at emily.flesch@mitchellhamline.edu.

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.