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E-Newsletter of November 20, 2012 | Vol. 5, No. 47





The home (called "the homestead" by the Minnesota medical assistance program) is an excluded asset while a medical assistance recipient is residing there.  POMS § SI 01130.100.  HCPM §  The recipient's home continues to be excluded for six months or longer if the recipient moves to a Long Term Care Facility (defined by HCPM Glossary as a  place such as a skilled nursing facility, Intermediate Care Facility for the Developmentally Disabled (ICF/MR) or medical hospital in which the individual receives skilled nursing services).   § 256B.056, subd. 2.   HCPM §  The home also remains an excluded asset for as long as a spouse or dependent relative of the individual continues to reside there while the individual is institutionalized; or its sale would cause undue hardship, due to loss of housing for a co-owner of the property; or an individual leaves his or her home due to domestic abuse and has not:established a new principal place of residence; or an action is taken to render the home no longer excludable.  POMS § SI 01130.100.

If the recipient moves from the home to Group Residential Housing or to a Housing With Services Establishment (commonly called Assisted Living), and no spouse or other protected relative remains living in the home, these exclusions no longer apply.  Neither Group Residential Housing nor residence in a Housing With Services Establishment qualifies as residing in a Long Term Care Facility.  HCPM, Glossary, Definition of "Long-Term Care Facility."  The county then can treat the home as abandoned.  The HCPM guidelines allow this treatment unless a specific guideline requires continued exclusion.  If the home exclusion is lost, the property will be treated as non-homestead real property and reasonable efforts to sell must be initiated as soon as possible to avoid counting the home against applicable asset limits.  See HCPM §  The loss of the home exclusion by moving from home to assisted living rather than from home to a nursing home or other Long Term Care Facility can come as a great surprise to both clients and their counselors if they are counting on a minimum six-month exclusion period before reasonable efforts to sell must be initiated.

Submitted by Julian J. Zweber
Legislative Coordinator
Elder Law Section


Elder Law News


Lieutenant governor addresses long-term care crunch | Brainerd Dispatch

Long-Term Care Consultations – Dakota County | Dakota County website

Our View: Minnesotans need to plan for their long-term care –“the silver tsunami" | Post Bulletin

The hidden world of assisted suicide | MPR News

Submitted by Joel Smith, Esq.

Elder Law Cases

Published opinion released by the MN Court of Appeals on November 13, 2012:


In re: Guardianship and Conservatorship of Jeraldine J. Pates

Appellant-siblings challenge an order appointing their brother, respondent David Younkin, as conservator for their mother and granting him limited protective powers over her person. Appellants assert that their mother does not need a conservator or, alternatively, that appellant Abraham Younkin had priority and should have been appointed conservator.  In addition, they claim that the district court erred by granting respondent limited protective powers and failing to require a cost bond.  We affirm the district court's appointment of respondent as conservator.  Because the district court erred by granting respondent limited protective powers over his mother and not requiring him to post a bond, we reverse and remand for further proceedings.

The opinion is available here.

Unpublished opinion released by the MN Court of Appeals on November 13, 2012:

In the Matter of the Anthony J. Englund, Sr. Trust Agreement dated October 19, 1990

In this probate matter arising out of a family trust to which appellant was a co-trustee and also a beneficiary, appellant challenges several district court orders denying and granting expenses and fees requested by appellant and respondents.  Appellant asserts that the district court erred by: (1) finding that he had resigned his trustee position in 2007, or, alternatively, had acted in bad faith and thus was not entitled to his requested trustee and attorney fees; (2) allowing expenses of the successor independent trustee and attorney fees incurred by other beneficiaries to be paid out of his share of the trust; and (3) finding that there was no evidence of the value of property left in the trustor's home and disposed of by his co-trustee and thus declining to require his co-trustee to reimburse the trust for that property.  Because the district court properly determined that appellant was not entitled to attorney fees and that there was no evidence as to the value of the property removed from the trustor's home, we affirm in part.  But because the district court clearly erred in finding that appellant had resigned as trustee in 2007 and did not make a finding that the requested trustee fees were related to his bad faith, we reverse the district court's denial of all of appellant's requested trustee fees and remand for the district court to determine how much appellant should be reimbursed for his work as a trustee.

The opinion is available here.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).

Submitted by Andrea Palumbo, Esq.

Elder Law Statutes, Regulations, and Bulletins

There are no statues, regulations or bulletins to report this week. 

Upcoming Events and CLE Programs

HeaderElder Law Section CLE- Family Conversations Over the Holidays: Powers of Attorney

*Deadline to register is Monday, November 26th*

Date:   Friday, November 30, 2012
Time:   7:45 a.m. to 11:45 a.m.
Location:   Radisson Hotel Roseville
2540 Cleveland Avenue North
Roseville, MN 55113 

CLE Description:

The holiday season is the time for family gatherings. As families visit and reconnect, it may become apparent that an aging parent is declining in cognitive abilities and family members may use these gatherings to talk about what to do.

Powers of Attorney are important and common tools in dealing with incapacity. Unfortunately, they can also become a tool for financial exploitation.

Powers of attorney deserve a closer look by elder law and estate planning attorneys. How can we draft them to best provide convenience, flexibility and protection? When should we use the Minnesota statutory short form power of attorney? When is the client better served by a common law power of attorney? How can we use powers of attorney in the adult guardianship context? What advice should we offer attorneys-in-fact about their obligations to keep records and account for their actions? And what best practices do each of us utilize in the power of attorney arena that we can share with our peers?

This half-day CLE is designed to be an interactive learning opportunity for presenters and
attendees alike. The Elder Law Section is interested in your ideas, interpretations and strategies, and one of the sessions will include small group round-table discussions about what you are doing with powers of attorney in your law office. When we get those calls from our older clients or their concerned family members, each of us will be better armed with information and ideas about how to get the most out of this very important incapacity planning tool.

For information on cost and the schedule, click here.

Submitted by Jill Adkins, Esq.

Hamline University School of Law Health Law Institute - January Term Courses 

HIPAA Privacy
January 3, 4, 5, 6, 8:30 a.m. to 4:00 p.m.
2 JD credits, Approved for 24 CLE credits (event code: 173291)
School of Law, Room 103
Adjunct Faculty: Gina Kastel, Partner, Faegre Baker Daniels LLP

The focal point of this course will be the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA), the foundation for federal protections of health care information. Additionally, the course will examine the interplay between HIPAA and other federal and state health privacy laws and the application and enforcement of those laws in a variety of health care settings.  Classroom work will incorporate discussions about the close and evolving relationships among health care policy, evolving social norms and health privacy laws.  

Fraud & Abuse
January 8, 9, 10, 11, 4:30 p.m. to 9:10 p.m.
January 12, 8:30 a.m. to 5:00 p.m.
2 JD credits, Approved for 23.5 CLE credits (event code: 173293)
School of Law, Room 105
Adjunct Faculty: Isaac Buck, Visiting Assistant Professor, Seton Hall University School of Law

This course examines laws and regulations that impose criminal and civil penalties on health care providers for fraud and abuse, with special emphasis on the Federal False Claims Act, the Anti-Kickback Statute, and the Physician Self-Referral (Stark) Law. Civil Monetary Penalty and exclusion laws and the application of traditional federal white collar criminal statutes to health care will also be discussed. Further, other topics - including the use of the Responsible Corporate Officer Doctrine, the use of settlements as enforcement mechanisms, and the changes brought about by the Patient Protection and Affordable Care Act - will be explored. At the conclusion of the course, the student should have a basic working knowledge of the laws and regulations concerning health care fraud and abuse.

Submitted by Kari Winter


Elder Law Section Activities


MA COMMITTEE MEETING: The next MA Committee meeting will be at 3:30 p.m. on Tuesday, December 18, 2012. 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 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.
 The next meeting of the Elder Law Section Governing Council will be on Friday, December 14, 2012 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:


Elder Law Website


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.


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