Edited by Mark Anderson, Cathryn Reher, Suzanne Scheller & Julian Zweber
Beginning with the premise that the essential challenge in elder law is developing and implementing a broad skill set spanning numerous practice areas, the Fourth Edition of Minnesota CLE’s Elder Law Handbook is written as a guide to help 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 have been reorganized 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. Editors Mark Anderson, Cathryn Reher, Suzanne Scheller, and Julian Zweber have reorganized and expanded this edition significantly in coordination with an outstanding roster of highly regarded elder law practitioners. The Fourth Edition represents a dramatic improvement to an already indispensable manual. Order yours today!
The 2021 Update to the Elder Law Handbook includes changes to 22 of the Handbook’s 24 chapters, including significant changes to the Senior Housing, Asset Transfers and Reduction of Assets, and Medical Assistance Beyond Nursing Homes chapters, and much more! The COVID-19 pandemic continues to have a significant impact on the elderly population, and this is reflected in the content. The Update also includes coverage of the important Pfoser v. Harpstead decision. The Update brings your Handbook fully up to date, saving valuable time otherwise lost to research and allowing you to spend more precious hours serving your clients.
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PART A: 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 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
– 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
– Bryan Jamison & Richard Baum
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; COVID-19 Temporary Changes Effective During COVID-19 Pandemic; Appendix A – Medicare Monthly Premiums; Appendix B – What Services Are Covered; Appendix C – Abbreviations
– Margaret Barrett
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
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
– 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 § 220.127.116.11.2 (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; Treatment of Irrevocable Trusts in Minnesota After July 1, 2005; 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 § 18.104.22.168; Renewal – EPM § 22.214.171.124; 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; History and Overview of Minnesota Senior Housing Options
– 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 Primer
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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