MSBA ELDER LAW SECTION
2005-2006 Annual Report

The Elder Law Section of the Minnesota State Bar Association continued to meet throughout the 2005-2006 program year to discuss elder law issues.  The section is dedicated to meeting it’s mission statement goal to best serve it’s members by enhancing the skills of elder law attorneys and serving as a liaison with the Minnesota State Bar Association and the public on issues and activities related to elder law.   Highlights of the year included the following:

1.)  The section produced two newsletters and a third is almost ready for distribution.  The newsletters contain helpful information for elder law practitioners including:
legislative reports that detail the latest changes in the law;
helpful articles on topics of interest, including, life estate lien litigation; supplemental needs trusts; and Medicare Part D;
Current “Minnesota Health Care Programs Income and Asset Figures” charts; and
web-based resource lists.

2.)  The section, through Minnesota CLE, again sponsored the annual Elder Law Institute in October of 2005.  There were 256 attendees at the 2 day CLE and many more attorneys will be able to see video replays of the event.

3.)  We are working very hard to make our website a valuable tool for elder law practitioners.  We are posting a wide variety of information and resources on our site.

4.)  The section updated our by-laws and created systems to allow the section to function smoothly.

5.)  We hired a second law clerk to assist with research and to follow legislative changes relevant to the area of elder law.

6.)  We presented the Mary Alice Gooderl award for outstanding contributions to the field of elder law to Catherine Reher.  We also presented special awards to Randall Brown and Marcus Stubbles for their dedicated pro-bono work in the Marten case and recognized the section’s first law clerk, Erin Furlong  for her extraordinary service.

7.)  Many members participated in a variety of committees and contributed countless hours to the section.  The committees include: Nominating; Newsletter; Strategic Planning; Medical Assistance; Legislative; By-laws; and Awards.  We also have a wonderful website manager and coordinate with a Public Education committee associated with the Ramsey County Bar Association.

Respectfully submitted,

Kathleen M. Eveslage
Chair, Elder Law Section Governing Council
2005-2006

1. The section produced two newsletters for its members.

2. The Elder Law Section through, Minnesota CLE, sponsored its annual institute in October, 2002.

3. The section addressed and appropriately responded to a number of legislative initiatives introduced during the recent Minnesota legislative session. Julian Zweber chaired our legislation committee.

4. A group of lawyers from the Elder Law Section responded to a waiver request submitted by the Minnesota Department of Human Services to the Federal Centers for Medicare and Medicaid Services, opposing the request for waiver.

5. A strategic planning committee was formed, to evaluate section activities and use of funds. Monica Lewis chaired the strategic planning committee.

6. The section solicited professors and academicians to serve on the governing law council. As a result, two professors/academicians will serve on the governing law council in the year 2003-2004.

7. The section actively recruited law students interested in the field of Elder Law to serve on the Elder Law Governing Council. As a result, a law student from the University of Minnesota sat as a student representative of the governing law council.

8. A number of lawyers from the section dedicated their time and efforts to the Habitat for Humanity construction project sponsored by the Minnesota State Bar Association.

9. The Elder Law Section sponsored a CLE on estate recovery issues at the Minnesota State Bar Association Annual Convention. Randy Boggio was the presenter at the CLE.

Respectfully submitted,

Stuart C. Bear
Chair, Elder Law Section Governing Council

The Elder Law section of the MSBA continues to flourish and grow. Membership increased again this year and the section is in excellent financial shape. The section and its leaders are also doing a good job of helping members to improve the practice of elder law. Highlights for the 1998-1999 program year include the section's attempts to influence public policy at the Legislature and the Court of Appeals, a program to increase pro bono awareness for elder law attorneys, and more opportunities for networking and education.

Public Education Committee. The Public Education Committee took up the cause of pro bono awareness and began developing a program to connect Elder Law section members with legal aid attorneys and clients in need. The committee, under the leadership of Betty Berger and Barbara Goldstein, met with leaders from legal aid organizations for the metro area who receive funding under the Older Americans Act. They identified a need for attorneys knowledgeable about Medical Assistance who are willing to take calls from senior law project attorneys and from seniors referred to them. Several attorneys from the Public Education committee have volunteered and more section members are encouraged to donate their time. Contact Barbara Goldstein (612/512-1696) for more information.

The Public Education Committee continues to develop and distribute educational outlines and reach out to the community with CLE programs and public education opportunities. Outlines for Long Term Care and Planning for Disability are done, with a Basic Estate Planning outline slated for completion soon. The Public Education committee meets with the Ramsey County Bar Association Senior Issues committee and cosponsored and organized a Ramsey County Bar Association continuing legal education seminar about Health Care Directives and Medical Assistance.

Jobe Amicus Brief. On May 7, 1999, the Elder Law section filed with the Minnesota Supreme Court a Request for Leave to Participate as Amicus Curiae in the Estate of Alice I. Jobe, 590 N.W. 2d 162 (Minn.Ct.App. 1999). This action was taken upon the unanimous vote of the Executive Committee and was ratified by the Governing Council at its May 12, 1999 meeting. (This Request for Leave to Participate as Amicus Curiae was made by the Elder Law section of the MSBA and does not represent the view or action of the entire MSBA.)

In Jobe, the Ottertail County Department of Social Services filed a claim in the estate of Alice I. Jobe for reimbursement of Medical Assistance benefits paid on behalf of Mrs. Jobe's predeceased husband. Alice I. Jobe never received Medical Assistance benefits herself. The District Court allowed the claim and an appeal was taken to the Court of Appeals, challenging the validity of state law that allows such a claim against the estate of a surviving spouse. The Court of Appeals affirmed, finding that the federal statutes that control these issues did not preempt state law.

While the Petition of the Estate of Alice I. Jobe to review this matter was denied by the Minnesota Supreme Court in a May 26, 1999 Order, the issues raised by this case are arising in other matters around the state. An opportunity may present itself, as a result, for the Elder Law Section to address its concerns about the broad impact of the Jobe decision on Medical Assistance, probate, trust, spousal rights, and real estate law.

Webmaster's Report. The Elder Law section Web Page has become a fully developed resource for section members and the public, including links with several excellent sources for the practice of Elder Law (www2.mnbar.org/sec/elder.htm). The page now contains section newsletters, the completed and approved educational outlines developed by the Public Education Committee, and easy access to state and federal Medicaid regulations. The webmaster, Barbara Goldstein, is searching for other helpful sites to link with the Web Page.

In addition, the section seized an opportunity presented by the MSBA to develop an Internet listserve in conjunction with the Probate & Trust Law Section. The listserve is now on line and is developing into a quick and easy way to solicit the advice and assistance of peers. There are 131 members who use the listserve to ask questions about issues in their daily practices. Other members answer those questions and provide case citations, statutes, and other information on point. With these resources in place the Elder Law section is in a great position to keep section members and the public up-to-date about Elder Law. Contact Barbara Goldstein (612/512-1696) for more information.

Medical Assistance Committee. The Medical Assistance Committee, chaired by Frances L. Long, meets every other month to discuss matters that arise in Medical Assistance planning and related areas. During the past year, meetings included extensive discussions about the estate recovery claims by counties and related developing case law, meeting with Minnesota Department of Human Services representatives to develop methods for more consistent application of the complex Medical Assistance laws by county and state employees, and other matters as they arose in the members' practices. Approximately 15 to 25 people attend the meetings and the discussion is lively. The committee will continue to meet on the third Tuesday of every other month. The next meeting is scheduled for August 17, 1999 at 3:30 p.m. at 6600 France Avenue South, Edina, Minnesota. Contact Frances Long (612/929-0622) for more information.

Elder Law Institute. In October, the annual Elder Law Institute drew 310 participants and received excellent reviews. The section awarded the Mary Alice Gooderl Award to Barbara Bloomer for her work developing and implementing the new Health Care Directive. Planning is under way for next year's Institute. It will be held at the River Centre in St. Paul on Friday, October 22, 1999. Some of the topics to be covered include the use of restraints in nursing homes in light of new legislation and regulations, estate recovery issues and Medical Assistance, the Department of Human Services Project 2030, legislative, administrative and case law updates, and basic reviews of Medical Assistance, Veterans benefits and SSI.

Legislative Committee. The Legislative Committee, under the strong leadership of Julian J. Zweber, monitored bills through this year's legislative session covering everything from the use of restraints in nursing homes to changes in Medical Assistance to the Uniform Guardianship and Conservatorship Act. Of particular interest was the passage of a new statute giving nursing home residents and their families the option to select the use of physical restraints if such restraints are ordered by a physician. This addition to the Patient Bill of Rights expands the ability of nursing home residents to control their own health care and living situation. Restraints, such bed side rails, that would otherwise not be used, can be incorporated into a patient's plan of care so long as less restrictive alternatives are explored and a physician orders the restraints to treat a medical condition. Among the medical conditions that will justify the use of restraints is the patient's well-founded fear of, for example, falling out of bed. This new statute and the Department of Health guidelines that have been produced in response will give nursing home residents more control over their care and Elder Law attorneys more leverage to ensure that clients have the highest quality of life possible.

Elder Law Newsletter. Stuart C. Bear, in his first year as the newsletter coordinator, produced three excellent issues of the Elder Law Section Newsletter. The November issue had four pages containing articles about the listserve developed for the Elder Law and Probate & Trust Law sections. An update of estate recovery claims involving a surviving spouse and announcements about the Elder Law Forum and the Public Education Committee were also included. In March, the bulk of the newsletter outlined the Minnesota Department of Human Services 2030 project. This project deals with the impact of the baby boom generation. The article provided insightful information regarding the demographic shift of our population and the considerations inherent, from a legal, social and economic standpoint, with an aging population. The June issue, the largest of the year, contained notice of the annual meeting with a slate of officers and council members, as well as a report from the chair, a summary of legislative activity, and a statement about the section's involvement in the Jobe case. Section members were also encouraged to make nominations for the Alice Gooderl Award and to sign up for a Law and Literature program to be sponsored by the Elder Law section and the Minnesota Humanities Commission in September.

Law & Literature Program. On September 17, 1999, the Elder Law section will cosponsor a "Law & Literature" session for its members in conjunction with the Minnesota Humanities Commission. Continuing Legal Education has approved Law & Literature as an "Ethics CLE" course. As a result, section members will be able to acquire CLE credit by participating in the program.

Participants prepare for the Law & Literature seminar by reading two short stories that relate to Elder Law and ethical issues. Through these stories, the program seeks to provide participants with a deeper understanding of their roles and responsibilities, and to enhance their capacity for ethically informed advocacy, judgment, and behavior. General practice issues, client and peer relations, and even substantive legal questions become part of the discussion as well. Contact Jeffrey W. Schmidt (651/291-2405) for more information.

Minnesota Trial Lawyers Association Elder Law Committee. The Minnesota Trial Lawyers Association, in response to the growing scope of Elder Law, has established a committee dedicated to litigation issues for the elderly. In an effort to expand the reach and effectiveness of this new committee and the Elder Law section, Elder Law section members are being invited to serve on the MTLA Elder Law Committee. The goal is to increase awareness by incorporating the experience and knowledge of the Elder Law Bar with the knowledge and experience of Minnesota Trial Lawyers Association members. Contact Jeffrey W. Schmidt (651/291-2405) for more information.

Elder Law Forum. The Elder Law Forum, a committee dedicated to Elder Law issues outside the realm of Medical Assistance, now meets on the last Thursday of each month (except for November and December). A sampling of the topics covered and to be covered include, Health Care Directives, DNR/DNI orders, organ donation, vulnerable adults, a variety of ethical questions, Social Security, nursing home litigation, qualified retirement plan distributions, and much more. Contact Jeffrey W. Schmidt (651/291-2405) for more information.

Thank you to all of the hard working section members who make the success of this section possible. Keep up the good work.

Jeffrey W. Schmidt,
1998-99 Chair

This was a busy year for the Elder Law Section. We established a new committee, Open Forum, to provide a meeting where practitioners could discuss their interests and concerns; we opened our first web page; we held an Elder Law Institute with participation which exceeded that of prior years; we participated in the creation and passage of the legislation on Health Care Directives; and we continued to work on the creation of a brief bank.

Legislative Committee: The Legislative Committee, together with the Probate and Trust Law Section and the Health Law Section, created a task force which reviewed existing statutes governing living wills and durable powers of attorney for health care. The task force, which also included representatives of groups with an interest in health care directives, created a bill that was passed by the Legislature and signed into law on April 21, 1998. It takes effect August 1, 1998.

The new law will simplify requirements for a valid health care directive; provide more certainty as to enforceability of directives executed in other states; allow an agent to make health care decisions regarding place of abode and personal security; and allow a person to leave instructions, appoint an agent, or both.

The committee has already begun work on the 1999 session and will be following the development of the revision of pre-marital and post-marital contracts, regulation of professional guardians and conservators, and revisions to the exempt property statute in the Probate Code. Anyone interested in joining the committee should contact Julian J. Zweber at (651) 646-4354.

Medical Assistance Committee: The Medical Assistance Committee met every other month to discuss matters arising in Medical Assistance planning and related areas. During the past year, discussions included the federal criminalization statute and how members were dealing with it in their practices as well as the statement of the Attorney General regarding it, state recovery issues and challenges to wills or trusts by county attorneys in various counties, long-term care insurance and when or whether to recommend it to clients, trust issues, and other matters as they arose in the members' practices. Approximately 15 to 25 people attend the meetings and the discussion is lively. The Medical Assistance Committee will continue to meet on the third Tuesday of the month at 3:30 p.m. at 6600 France Ave. South, Suite 425, Edina, MN. The next meeting will be on August 18, 1998.

Open Forum Committee: The Governing Council of the Elder Law Section established the Elder Law Forum in the fall of 1997 to provide a forum for the discussion of substantive elder law issues beyond Medical Assistance. The forum met on February 26, 1998 and April 30, 1998. Approximately 12 section members attended each meeting.

The Elder Law Forum will begin meeting again in September, and every other month following. Section members have been encouraged to submit ideas, topics and issues for discussion to the forum chair, Jeffrey W. Schmidt, at (651) 291-2405.

Newsletter Committee: The Newsletter Committee produced two newsletters for the 1997-98 year. As usual, these newsletters consisted of articles and information supplied by various members of the Governing Council, including information about: the "Granny's Advisor Goes to Jail" lawsuit; the new Elder Law Certification authorization; survey results re Elder Law certification, as well as information about the annual Elder Law Institute.

This year, the Governing Council agreed that in addition to a print publication of the section's newsletter, the council would try to place the newsletter on the MSBA's web page.

From time to time, the council intends on reviewing the idea of having the newsletter or other of its reports online. Accordingly, input from any member on this issue is certainly welcome.

Public Education Committee: This committee, which meets with the Senior Issues Committee of the Ramsey County Bar Association, continued its project of preparing outlines to be used throughout the state for elder law education. The areas being prepared are: Planning for Disability, Long Term Care, Estate Planning, and now a revision of the outline on Advance Directives to move to the new Health Care Directives legislation. The committee also sponsored a CLE on Retirement Taxation and participated in the Law Day events answering legal questions on elder law at Channel 11. If you are interested in joining this committee, contact Barbara Goldstein at (612) 512-1696.

Elder Law Institute: Three hundred twenty-five people, the largest number yet, attended the annual institute which was held on October 24, 1997 at the Doubletree Park Place Hotel in St. Louis Park. Cochaired by Barbara Goldstein and Jody Cohen Press, the topics included cutting edge issues in elder law. The Mary Alice Gooderl Award was awarded posthumously to Charles Ingram for his contributions to elder law. His family and members of his law firm attended the award ceremony. A survey was taken of members regarding the definition of elder law and which of the areas of elder law our members practice. The material was analyzed and will be discussed at the 1998 institute set for Friday, October 23, 1998, again at the Doubletree Park Place Hotel.

Ad Hoc Specialization Committee: When the Minnesota Board of Legal Certification gave the authority to certify Elder Law attorneys to the National Elder Law Foundation, the Governing Council established an ad hoc committee on specialization to look at the board's decision and recommend what action should be taken by the Governing Council. The committee recommended that a member of the Governing Council be appointed to monitor the development of elder law specialization and keep the Governing Council informed of the developments. The ad hoc committee was then dissolved.

Annual Meeting: The annual meeting of the Elder Law Section was held on June 26, 1998 together with the Probate and Trust Law Section in Duluth at the MSBA annual convention. As in past years, refreshments were provided by Norwest Bank. Following both business meetings, a CLE was held on the new Health Care Directives Statute.

Chairing the Governing Council this year was a great experience. Thanks to everyone who participated.

--Barbara F. Goldstein,
1997-98 Chair

MSBA Elder Law Section
1996-97 Annual Report

Certification of Attorneys as Specialists in Elder Law
During this past year, the National Elder Law Foundation, located in Tucson, Arizona, filed an application with the Minnesota Board of Legal Certification, seeking authority from the board to certify Minnesota attorneys as specialists in elder law. The Elder Law Governing Council was notified by the board of NELF's application and the hearing to be held on the application.

Representatives from the council (as well as a representative from the Probate and Trust Law Section) met with the board and provided comments and feedback with respect to NELF's application. The board was informed of the council's concerns with respect to the substance of NELF's application as well as the council's comments concerning the general concept of having attorneys certified as specialists in elder law. A lengthier report on the status of the issue was published in the May 1997 Elder Law Newsletter.

As of this date, the board is still reviewing NELF's application and the council intends on continuing to stay involved with the process.

Legislation
The Legislative Committee assisted in sponsoring Minnesota legislation to allow designation of all forms of advanced health care directives, not just living wills, on a person's driver's license or Minnesota identification card. This law became effective for driver's licenses and identification cards requested or renewed on or after July 1, 1997.

Additionally, the Elder Law Section, Probate and Trust Law Section, and the Health Law Section met to sponsor a working conference on Minnesota healthcare decision-making issues. The conference included a summary of existing Minnesota laws and healthcare decision making; identification of healthcare decision-making issues under current Minnesota laws; an introduction to the uniform act; and identification of working group issues, activities and time lines for development of legislation for introduction in future years, hopefully, in the 1998 session of the Legislature.

Elder Law Institute
The Annual Elder Law Institute (for 1996) was held October 18, 1996. The Institute, chaired by Jeffrey Schmidt, was a big success, and included topics relating to healthcare policy, future access to healthcare, community-based service ideas, issues and concerns, and the ever-popular tax issues. Over 250 attorneys attended (60 more than the previous year). The participants rated the program 6.1 out of a possible 7 which, according to Carol Berg, the CLE program attorney in charge, is an excellent rating.

The 1997 Annual Elder Law Institute, to be chaired by Jody Cohen Press, will be held Friday, October 24, 1997.

Newsletter Committee
Three newsletters were published this year, including one newsletter that cited the federal criminalization statute (effective 1/1/97) making it a Federal misdemeanor if any person "knowingly and willfully disposes of assets (including by any transfer in Trust) in order for an individual to become eligible for medical assistance under a State Plan under Title XIX, if disposing of the assets results in the imposition of a period of ineligibility for such assistance under ß 1917(c)."

This federal law, including what it says or what it could be interpreted to say, received due attention by the members of the Elder Law Governing Council and provided much discussion among general members of the section, including anecdotal information that the law will be amended in the future. We shall have to wait and see.

Medical Assistance Committee
The Medical Assistance Committee, chaired by Frances Long, again provided a forum for discussing many issues that come before attorneys that directly or indirectly relate to medical assistance. The meetings have been very helpful to all attorneys who attend them and provide a place where ideas and information can be shared among those who attend.

Public Education Committee
The Public Education Committee completed an outline on healthcare declarations. The outline will be distributed to members of the bar for their use in presenting the substance of the outline to the public. The committee also issued a brochure in conjunction with the MSBA on the Vulnerable Adults Act, for use by members of the bar and the public. Additionally, the committee hosted two CLE presentations on Long Term Care Insurance.

Brief Bank Committee
A new committee was formed this year, the "Brief Bank Committee." Its purpose is to investigate the idea of using technology to circulate memos, briefs, unreported court decisions, or other information that would be helpful to Elder Law Section members. After some investigation, the committee issued a report to the Governing Council about its preliminary findings, which included the raising of questions as to what costs would be needed, who would be in charge, and how the procedures would be accomplished. While no definitive answers have yet been found, there seems to be a general consensus that the idea of formulating a "Brief Bank" would be welcomed by members of the section.

Living Trust Committee
The Living Trust Committee, chaired by Lloyd Stern, also met a number of times during the year and provided a forum for attendees to discuss issues relating to trusts and beyond. Additionally, the long time developing Irrevocable Insurance Trust form was introduced at the 1996 Probate and Trust Law Annual Institute held in May of 1996. This is the document that had been worked on for some time in the Living Trust Committee and had received much refinement through the help of many members of the committee.

Annual Meeting
The annual meeting of the Elder Law Section was held June 20, 1997, in conjunction with the Probate & Trust Law annual meeting. In the past few years, the Probate & Trust Law and Elder Law Sections have held their meetings one after the other so that attendees can share in a joint breakfast (sponsored again this year by Norwest Investments) , and stay for a short CLE seminar (this year's seminar was "Splitting the Grandfather Clock--ADR in the Trusts and Estate Practice").

The joint annual meeting was enjoyed by all, and I expect that this wonderful tradition will continue in years to come.

Michael J. Burke,
Chairperson

- Last Updated 08/03/07 -