Edited by Mark Anderson, Amber Hildebrandt, Cathryn Reher & Suzanne Scheller
Beginning with the premise that the essential challenge in elder law is developing and implementing a broad skill set spanning numerous practice areas, the Fifth Edition of Minnesota CLE’s Elder Law Handbook is an impressive guide that helps users develop the base of knowledge needed to address concerns of individuals and families who are suffering or planning for the impact of significant and chronic illness or disability. The chapters are organized to address issues in the same order a lawyer might address them with a client, and with sufficient thoroughness to avoid leaving critical issues off the checklist. The Handbook traces the entire arc of elder law practice in Minnesota, a topic of greater concern with the rise of the age 65+ community. The Handbook covers planning for long-term care, marital issues for elderly clients, and tax implications. Explore the nexus of Medical Assistance and long-term care – and learn how to maximize your clients’ results. Order yours today!
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PART A: REPRESENTING SENIORS
Ethical Considerations in Representing Seniors
Introduction; Who Is the Client?; Representing Clients With Diminished Capacity
– Eric T. Cooperstein
Introduction to the Planning Notebook; Contents of a Planning Notebook
– Laurie Hanson
The Planning Process: Surrogate, Substitute, and Supported Decision-Making and Basic Estate Planning
Introduction; Financial Management; Health Care Management; Supported Decision-Making; Planning for Death; Appendix A – Minnesota Statutory Short Form Power of Attorney; Appendix B – Minnesota Bankers Association Legal Compliance Bulletin LC-7-2006
– Megan Kelly & Laura Zdychnec
Introduction; General Rules Regarding the Sale of Capital Assets; Other Miscellaneous Income Tax Issues; Gift and Estate Tax Provisions; Qualified Retirement Accounts; Appendix A – Life Estates Mortality Table – EPM Appendix G; Appendix B – Information on IRS Applicable Federal Rates and Actuarial Tables; Appendix C – Chronically Ill Certification; Appendix D – Tax Return Samples; Appendix E – Important Rules and Deadlines Summary
– Richard Baum
Vulnerable Adults and the Vulnerable Adults Act
Introduction and Background; The Vulnerable Adults Act; Vulnerable Adults Act – Reporting Suspected Maltreatment; Vulnerable Adults Act – Processing a Maltreatment Report; Application of the Act; Limitations of the Act; Other Minnesota Vulnerable Adult Legislation; Federal Vulnerable Adults Legislation; Summary of Legislative Changes to the Act and Related Provisions
– Suzanne M. Scheller
Resources for Serving Older People in Economic Need
Introduction; Fee-Generating Cases; Legal Aid; Other Nonprofit Organizations; Government Agencies; Appendix A – Map of Minnesota Legal Services Coalition (MLSC) Programs by Region; Appendix B – Legal Services Coalition Programs Listed by County; Appendix C – Listing of Other (Non-MLSC) Civil Legal Services Providers; Appendix D – Listing of Non-Legal Advocacy Services
– Laura Orr
PART B: PAYING FOR LONG-TERM CARE WITHOUT MEDICAL ASSISTANCE
Medicare for Nursing Home or Community Care
Overview and Regulatory Reference; Organizations within the Medicare System; Who May Receive Medicare; Hospital Stays; Skilled Nursing Facilities; Home Health Care; Hospice Care; Ambulance Service; Temporary Changes Effective During COVID-19 Pandemic; End-Stage Renal Disease and Medicare Coverage; Appendix A – Medicare Monthly Premiums; Appendix B – What Services Are Covered; Appendix C – Abbreviations
– Kelli Jo Greiner
Long-Term Care Insurance
Introduction; Qualified Long-Term Care Insurance Policy; Partnership Long-Term Care Insurance Policies; Regulation of Insurance Companies, Agents, and Agencies; Consumer Information and Enforcement Action Websites; Claim Disputes, Premium Increases, and Litigation; Appendix A – Glossary of Long-Term Care Insurance Terminology
– Jody A. Cohen-Press & Elizabeth I. Wrobel
Introduction; Minnesota Veterans Benefits; Federal Veterans Benefits; VA Health Care Benefits; Veterans with Service-Connected Disabilities; Pension; Burial and Memorial; Dependents and Survivors Benefits
– Mary Frances M. Price
Alternative Care and Essential Community Supports
Introduction; Eligibility for Alternative Care; Changes Affecting Lower Need Individuals (Case Mix “L”); Essential Community Supports for those Ineligibility for Alternative Care; Services Covered Under Alternative Care; Alternative Care Program Administration and Case Management; Care Providers; Alternative Care Program Funding, Allocation of Funding, and Fees; Estate Recovery; The Future of Alternative Care; COVID-19 and Alternative Care; Conclusion
– Allison J. Frasier
Reverse Mortgages: A Financing Tool for Seniors
Introduction; The Home Equity Conversion Mortgage Program; The Home Equity Conversion Mortgage Application Process; Borrower, Property, and Disclosure Requirements; Reverse Mortgage Options; Maximum Loan Amount; Costs; Other Charges and Fees; Reverse Mortgage Myths; Deaths of Homeowners; Use of Powers of Attorney; Appendix A – U.S. Department of Housing and Urban Development Mortgagee Letter 2021-11; Appendix B – Sample HECM Amortization Schedules; Appendix C – Annual Occupancy Certificate; Appendix D – U.S. Department of Housing and Urban Development Mortgagee Letter 2014-07; Appendix E – HUD Single Family Housing Policy Handbook 4000.1; Appendix F – Third-Party Authorization Form; Appendix G – HUD Mortgagee Letter 2021-29; Appendix H – HUD Mortgagee Letter 2011-09
– Jody A. Cohen-Press
PART C: MEDICAL ASSISTANCE
Medical Assistance Programs and Eligibility for Nursing Home Care
Introduction; General Eligibility Requirements for Medical Assistance in Minnesota; Eligibility Requirements for Medical Assistance for Nursing Home Care (MA-LTC); MA-LTC – Spousal Impoverishment Rules for a Married Couple
– Amber M. Hildebrandt
Medical Assistance Programs Beyond Nursing Homes
Introduction; Categorical Basis of Eligibility; Financial Eligibility; Long-Term Care Consultation or MnCHOICES Assessment; Home and Community-Based Waiver Services for Individuals Under 65; Home and Community-Based Waiver Services for Individuals Age 65 and Over; Other Considerations When Applying for Home and Community-Based Waiver Programs; Medical Assistance for Employed Persons with Disabilities; Conclusion; Additional Resources; Addendum: COVID-19 and HCBS; Appendix A – Minnesota Department of Human Services Insurance Affordability Programs Income and Asset Guidelines; Appendix B – Comparison of MnCHOICES, RSC and CAC, CADI, BI Waivers for Persons With Disabilities; Appendix C – Health Care Programs Eligibility Policy Manual Appendix F: Standards and Guidelines
– Brenna Galvin
Definition of “Asset”; “Asset” Distinguished from “Income”; Deeming of Income and Assets; Asset Limits; Excluded Assets; Countable Assets; Availability of Assets; Asset Verification; Community Spouse Asset Assessments
– Amber M. Hildebrandt & Julian J. Zweber
Asset Transfers and Reduction of Assets
Reducing Assets – Introduction; “Spending” the Assets – Purchasing Goods or Services; Making Permissible Transfers Under an Exception to the Transfer Rules; Transfer of Income-Producing Assets – Increased Spousal Share Allowance – MINN. STAT. § 256B.059, subd. 4 and EPM § 18.104.22.168.2 (HCPM § 19.45.15); Making Transfers without Adequate Compensation Subject to Transfer Penalty Rules; Hardship Waivers; Appendix A – Pfoser v. Harpstead, 953 N.W.2d 507 (Minn. 2021)
– Mark Anderson & Patty Dunlop
Medical Assistance and Annuities
Introduction; Requirements for a Medicaid-Compliant Annuity; Annuities and Medical Assistance Planning; Eligibility Policy Manual Guidance Regarding Annuities
– Lauren L. Fink & Julian J. Zweber
Medical Assistance and Trusts
Introduction; Sources of Law Governing the Use of Trusts in Medical Assistance and Disability Planning; Trusts Created Before August 11, 1993 – Medicaid Qualifying Trust Rules; Third-Party Established and Funded Trusts; Trusts Created on or After August 11, 1993 with the Assets of the Individual; Treatment of Irrevocable Trusts in Minnesota Since Minnesota Statutes section 501C.1206 Has Been Repealed; Supplemental and Special Needs Trusts; Appendix A – Comparison Chart of Supplemental, Special, and Pooled Trusts; Appendix B – Redacted California Decision Regarding Transfers of Assets into the Pooled Trust Subaccount; Appendix C – Redacted Maryland Decision Regarding Transfers of Assets into the Pooled Trust Subaccount
– Laurie Hanson
Antenuptial Contracts in the Context of Medical Assistance Planning; Marital Dissolution in the Context of Medical Assistance Planning
– Laura Fretland
Medical Assistance Application
Introduction; Who Can Apply – EPM § 1.2.2; Where Application Can Be Made; Application Timing; Application Forms; Verifications; Reporting Asset Transfers; Notices of Action by County Agency – EPM § 22.214.171.124; Renewal – EPM § 126.96.36.199; Applicant Rights and Responsibilities – EPM § 1.3; COVID-19 Information
– Patty Dunlop
Appeals of Agency Decisions
Medical Assistance Appeals – Introduction; Administrative Appeal Prehearing Matters; Administrative Appeal Hearing Procedure; Administrative Appeal Hearing Decisions; District Court Appeal; Court of Appeals; Exhaustion of Administrative Remedies
– Jeffrey W. Schmidt
Recovery of Medical Assistance Benefits
Medical Assistance Claims; Medical Assistance Liens; Amendments to Estate Recovery Statutes; Recovery of Benefits from Special Needs Trusts; Recovery of Benefits from “Zombie” Life Estates and Joint Tenancies; State Plan Update Regarding Recovery of Medical Assistance Benefits; Appendix A – Minnesota Department of Human Services Minnesota Health Care Programs Estate Recovery and Liens
– Sarah Sicheneder
PART D: HOUSING AND THE ELDERLY
Assisted Living and Senior Housing Options
Introduction; Independent Senior Housing; Assisted Living Facilities and Assisted Living Facilities with Dementia Care; Long-Term Care Options Counseling; Quality Assurance Mechanisms for Services Provided in Senior Housing (Other than Nursing Homes); Other Senior Housing Settings; Public Assistance; Landlord/Tenant Issues; Assisted Living License Law and Related Changes
– Barb Blumer & Suzanne Scheller
Eviction from Long-Term Care Facilities
Introduction; Nursing Homes; Assisted Living; Independent Senior Living; Memory Care; Veterans Homes; Other Long-Term Care Facilities; Appendix A – Survey of Nursing Home Transfer/Discharge Decisions; Appendix B – Significant Passages from Decisions Discussed in This Chapter
– Laura Orr
Nursing Home Litigation
Introduction; Common Injuries; Liability Principles; Personal Injury; Wrongful Death; Punitive Damages; Settlement; Ethical Considerations; Arbitration Clauses; Conclusion
– Mark R. Kosieradski & Joel E. Smith
Table of Authorities
Glossary of Acronyms
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