E-Newsletter of June 4, 2013 | Vol. 6, No. 22
ARTICLE OF THE WEEK
When Your Clients Physical Limitations Prevent Them from Signing Documents
We’ve all had the experience of receiving a call from a family member asking if you will meet with their, parent, aunt, or grandfather and help them execute some basic estate documents, generally a Healthcare Directive, Durable Power of Attorney and Will. Usually this involves a house call to the potential client in a nursing home or assisted living residence.
In these situations there are several issues that must be addressed before any representation can take place, specifically ensuring attorney-client confidentiality and assessing client capacity. When I arrive at the home, there are usually several persons present with the potential client. I ask the other persons present to leave the room while I speak to the potential client to retain confidentiality and to help ensure there is no undue influence or coercion. Assessing capacity is not an all or nothing proposition. There are differing levels of capacity with each document and even a person diagnosed with dementia can have moments of lucidity that allow them to make their wishes know and to execute the documents. But what if your client is mentally capable, understands and expresses her wishes and wants to execute the appropriate documents, but is physically unable to do so?
If a person is unable to physically execute a Will, her or she can, per MN Stat. 524.2-502(2), legally execute the Will by directing another person to sign the testators name in the testators conscience presence and have that signature witnessed by two (2) witnesses.
What about executing a Healthcare Directive or a Durable Power of Attorney? Yes, these documents can also be signed by a person with physical limitations, see MN Stat. 359.091-Accommodations of Physical Limitations. This statute provides the guidelines that allow a person with physical limitations, i.e., difficulty signing a document, to execute and sign documents.
According to this statute, a notary public may certify the signature of an individual when it appears that the individual has a physical limitation that restricts the individual's ability to sign by writing or making a mark (MN Stat. 359.091 (a). The statute outlines the specific instructions for the notary public to follow.
1. The signature of the individual, made by another person, must be in the presence of the individual whose name is being signed and in the presence of the notary public, and
2. The words Signature written by followed by the name of the person who signed on behalf of the individual executing the document, in the presence of followed by the name of the individual executing the document on whose behalf the signature was written must also be included on the document.
Working with a person with limited physical ability can be challenging but by following MN Statutes, 524.2-502(2) and 359.091, physical limitations should not prevent any individual from effectively executing any estate or other documents.
Submitted by Sheila J. Kelly, Esq.
Report ranks Minnesota as healthiest state for seniors | Echo Press
Elder Abuse: Minnesota S.A.F.E. Elders Launches in June | Aging Services of Minnesota
Grandparents visitation rights | The ECM Post Review
Minnesota Legislature Increases Long Term Care Funding | Aging Services of MN
Do America's seniors really need those discounts? | Star Tribune
Trustees: Medicare trust fund will be exhausted in 2026, 2 years later than previous estimate | Star Tribune
Submitted by Joel Smith, Esq.
[Correction: The Huber case published in last week's newsletter was released by the COA on May 20, 2013, not May 29, 2013.]
The following two cases were released on Tuesday, May 28, 2013.
In re: Estate of Perry Rosenbrook, Deceased.
Affirmed in part, reversed in part, and remanded.
In this appeal from a probate order regarding the management of a trust established by a will, appellant argues that the district court erred by (1) refusing to remove respondent trustees; (2) determining that certain assets were properly merged into the trust; (3) refusing to order the trustees to reimburse the trust for mileage resulting from their unauthorized use of a trust vehicle; and (4) refusing to require the trustees to personally pay the attorney fees in this matter. Because the district court erred by holding that certain assets were properly merged into the trust, we reverse and remand that portion of the district courts order. We affirm the remaining portions of the district courts order. The opinion is available here.
Robert L. Larson, Personal Representative of the Estate of Marion Levine, Respondent,
vs. Rebecca Caron, et al., Appellants.
Reversed and remanded. Judge Carol A. Hooten.
Concurring specially, Judge Edward J. Cleary.
Appellant challenges the district courts grant of summary judgment to respondent, arguing that the district court erred by concluding that forgiveness of debt must be in writing to be enforceable as a gift, and rejecting other evidence that the decedent forgave the debt. Respondent cross-appealed, arguing that the district court erred by barring the recovery of the interest accrued on the debt on the basis of the doctrine of laches.
We reverse and remand. The opinion is available here.
These opinions will be unpublished and may not be cited except as provided by Minn. Stat. 480A.08, subd. 3 (2012).
Submitted by Andrea Palumbo, Esq.
There are no new statutes, regulations or bulletins to report this week.
This summer, Hamline Law is offering Elder Law both for law school credit and for CLE. It will be taught by former Elder Section chair Suzy Scheller, and runs from June 14-17. To view the schedule and course description, click here.
Submitted by Thaddeus Pope, J.D., Ph.D.
MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, June 25, 2013. 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. Cathryn D. Reher of Long, Reher & Hanson, P.A., is Committee Chair. For directions, or to attend by phone, please contact Tracie Fenske with Long, Reher & Hanson, P.A., at 952-929-0622 at least 24 hours in advance of the meeting. Topics for the meeting may be submitted to email@example.com under the subject heading “MA Committee Topic”, or faxed to 952-542-9201. Please be reminded that the meeting location is: Estate & Elder Law Services (formerly MAO Legal 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 which faces directly into the meeting room.
GOVERNING COUNCIL: The next meeting of the Elder Law Section Governing Council, and the Annual meeting, will be on Friday, June 21, 2013 at 3:30 pm. Please be reminded that the meeting location is: Estate & Elder Law Services (formerly MAO Legal 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 which faces directly into the meeting room. For further information, please contact Laura Zdychnec, Chair, at: firstname.lastname@example.org.
DON'T FORGET THAT THE ELDER LAW WEBSITE IS A GREAT RESOURCE. Here’s what you can find on the Website: Links to the DHS Health Care Programs Manual, the DHS Bulletin on treatment of uncompensated transfers, the Minnesota Bankers Association Compliance Bulletin on Powers of Attorney, legislative summary; Practice Links to organizations such as NAELA, ABA Commission on Law and Aging, Links to Federal and State Government Agencies, Statutes, and Regulations; Meeting Notices, Listings of Officers and Council Members, Section Bylaws, and more.
Go to the Section Website