Elder Law

1. Elder Law Genevieve Gaboriault Supervising Attorney Senior Law Project Mid-Minnesota Legal Aid

2. What is elder law? • Something to do with elderberry wine • Something about boring old people • A lecture that I have to listen to in my poverty law class • The same law that is for non-elderly people but with special attention to end of life planning and government benefits

3. Older Americans Act - 1965 • 42 USC Chapter 35 – Program for Older Americans • Part 1 – General Provision • Part B – Supportive Services • Part C – Nutrition Services • Part D – Disease Prevention and Health Promotion Services • Part E – National Family Caregiver Support Program

4. Title I – Declaration of Objectives for Older Americans • The Congress hereby finds and declares that, in keeping with the traditional American concept of the inherent dignity of the individual in our democratic society, the older people of our Nation are entitled to, and it is the joint and several duty and responsibility of the governments of the United States, of the several States and their political subdivisions, and of Indian tribes to assist our older people to secure equal opportunity to the full and free enjoyment of the following objectives • (1) An adequate income in retirement in accordance with the American standard of living. • (2) The best possible physical and mental health which science can make available and without regard to economic status. • (3) Obtaining and maintaining suitable housing, independently selected, designed and located with reference to special needs and available at costs which older citizens can afford. • (4) Full restorative services for those who require institutional care, and a comprehensive array of community-based, long-term care services adequate to appropriately sustain older people in their communities and in their homes, including support to family members and other persons providing voluntary care to older individuals needing long-term care services. • (5) Opportunity for employment with no discriminatory personnel practices because of age. • (6) Retirement in health, honor, dignity—after years of contribution to the economy. • (7) Participating in and contributing to meaningful activity within the widest range of civic, cultural, educational and training and recreational opportunities. • (8) Efficient community services, including access to low cost transportation, which provide a choice in supported living arrangements and social assistance in a coordinated manner and which are readily available when needed, with emphasis on maintaining a continuum of care for vulnerable older individuals. • (9) Immediate benefit from proven research knowledge which can sustain and improve health and happiness. • (10) Freedom, independence, and the free exercise of individual initiative in planning and managing their own lives, full participation in the planning and operation of community based services and programs provided for their benefit, and protection against abuse, neglect, and exploitation. • (42 U.S.C. 3001)

5. End of Life Planning

6. 3 Primary Planning Documents • Wills/Trusts • Power of Attorney forms • Health Care Directives

7. Wills/Trusts • Maybe not necessary for poverty law clients

8. Power of Attorney • Gives rights to a second party over financial transactions • New statutory short form effective January 1, 2014 • Additional protections for principal and the attorney in fact • Attorney in Fact subject to felony charges for illegal actions • Can be a great tool, but also referred to as the “Power to Steal” • Can be durable or non-durable • Revocable by principal

9. Health Care Directive • Formerly known as Living Will • Good idea to prepare one and give to your family and your health care providers • Can be as specific or as general as you wish

10. *Important to Identify your Client* • Family members call with questions • Social workers/Ombudsman/Nursing home employees call with questions • Be sure that you understand your client’s wishes and the limits of their capacity • Also be ready to adapt to their needs • Visit at home/in a nursing home • Large type • Less formal in some documentation

11. Levels of Autonomy • No restrictions • Power of Attorney • Representative Payee (for social security checks) • Conservator – court appointed person who controls the conservatee’s money • Guardian – court appointed person who determines the ward’s non-financial choices • Committed to institutions

12. Substantive Law • Income/Benefits • Health care • Housing • Consumer • Third Party Custody • Estate Planning

13. Income/Benefits • Supplemental Security Income and/or Retirement Survivors Disability Insurance • Appeals and overpayments • Minnesota Supplemental Aid • SNAP • General Assistance and Emergency General Assistance

14. Health Care • Medicare • Medicare Supplements • Minnesota Care

15. Medical Assistance Adults without Children People with a disability, blind or 65 or older $958 income limit $1293 for 2 people $3000, or $6000 asset limit Over income qualify with a spenddown • $719 Income Cap • $971 for 2 people • No asset limit

16. M.A. • MA covered health care for the 3 months prior to the application • Clients who are over the MA income caps may be eligible for emergency MA for catastrophic illnesses • EMA is only available for non-citizens with specific very serious illnesses or who are likely to die within 48 hours of losing medical service • MA income caps and asset planning figure into nearly every elder law case • Liens on homes for recipients • Period of non-eligibility • 5 year look back on asset distribution

17. Elderly Waiver 4 Kinds of Waivers Elderly Waiver The EW program funds home and community-based services for people age 65 and older who are eligible for Medical Assistance (MA) and require the level of care provided in a nursing home, but choose to reside in the community. The Minnesota Department of Human Services (DHS) operates the EW program under a federal waiver to Minnesota's Medicaid State Plan. Counties administer the program. • Elderly Waiver • Community Alternatives for Disabled Individuals (CADI) Waiver • TBI Waiver • DD Waiver

18. Elderly Waiver … • Covered services include visits by a skilled nurse, home health aide, homemaker, companion, personal care assistant, as well as home-delivered meals, adult day care, supplies and equipment, personal emergency response systems, caregiver assessment, home modifications, and certified community residential services (customized living services, foster care, residential care) • Personal Care Assistant Cases • 256b.0659 governs PCA cases and the 8 Activities of Daily Living (ADLs), 3 behaviors, and 8 complex health-related needs that are assessed by a public health nurse annually

19. Housing – Private and subsidized • All the same housing issues as non-elderly folks • Evictions, lockouts, repair problems, neighbor disputes, tenant and owner foreclosure, notice to quit, loss of subsidized rent etc. • One bonus – much faster entrance into MPHA public housing than non-elderly or non-disabled • Senior only buildings are allowed under the FHA • Same fair housing protections – reasonable accommodations and modifications • Break lease due to impossibility

20. ELDERLY housing settings Assisted Living Nursing Homes/MN Vet Homes “No controlling person or employee of a nursing home shall retaliate in any way against a complaining nursing home resident and no nursing home resident may be denied any right available to the resident under chapter 504B.” 144A.13 Subd 2. Governed by 504B and Medicare/Medicaid laws Patient Bill of Rights protects • Leases with and without extra service contracts • Tenants should not be forcibly removed from the home without following 504B eviction procedures • Landlord can terminate the services contract and force the client to find their own service provider • Largely unregulated, issues with security deposit-like fee

21. Nursing Homes Federal Rules Govern Involuntary Discharge from Nursing Home and Hospitals42 CFR 483.12 (a) (6) Clients Discharged for: Non-payment Behavioral issues Inability to provide care Challenge Discharge through MN Office of Administrative Hearings • 42 CFR 483.12 (a)(6) provides that: • The written notice specified in paragraph (a)(4) of this section must include the following: • The reason for transfer or discharge; • The effective date of transfer or discharge; • The location to which the resident is transferred or discharged; • A statement that the resident has the right to appeal the action to the State; • The name, address and telephone number of the State long term care ombudsman; • For nursing facility residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act; and • For nursing facility residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act.

22. Consumer • Debt collection defense • Wage garnishment • Financial Exploitation • Student loan discharges for disability • Most seniors who receive social security and Medical Assistance are “collection proof” • Social security income is protected, so is their pension up to a certain amount

23. Being collection proof DOES Not mean you should race to the mall to go shopping Elder attorneys provide financial counseling too

24. Third Party Custody • Some grandparents wish to formalize their caregiving relationship for their grandchildren. There are two methods – interested 3rd party and De facto custodian. • MN Stat 257c.01 Subd. 2. De facto custodian. • (a) "De facto custodian" means an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of: • (1) six months or more, which need not be consecutive, if the child is under three years of age; or • (2) one year or more, which need not be consecutive, if the child is three years of age or older.

25. OTHER • Drivers License Privileges revoked • Needs state ID for MPHA but no birth certificate • Mechanics’ Lien on house for construction project • Anything you can think of!

26. Estate Planning/Probate

27. Elder Law – Give it a try! • Interesting work for clients who are generally helpful and appreciative of your efforts • Expanding population of people over 60 • Money to be made in estate planning • Lots of changes with Affordable Care Act, MN Sure, and Medicare will keep things interesting • Varied practice area: touches Family Court, Housing Court, Federal and State District Court, Office of Administrative Hearings, Department of Human Services hearings, and Office of Disability Adjudication and Review

28. Thanks FOR Listening – Call me with questions 612-746-3609 or gegaboriault@mylegalaid.org