Download - Elder Law
G E N E V I E V E G A B O R I A U L TS U P E R V I S I N G A T T O R N E Y S E N I O R L A W P R O J E C T
M I D - M I N N E S O T A L E G A L A I D
ELDER LAW
WHAT IS ELDER LAW?
A. Something to do with elderberry wineB. Something about boring old peopleC. A lecture that I have to listen to in my poverty
law classD. The same law that is for non-elderly people but
with special attention to end of life planning and government benefits
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
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)
END OF LIFE PLANNING
3 PRIMARY PLANNING DOCUMENTS
• Wills/Trusts• Power of Attorney forms• Health Care Directives
WILLS/TRUSTS
• Maybe not necessary for poverty law clients
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
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
*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
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
SUBSTANTIVE LAW
• Income/Benefits• Health care • Housing• Consumer• Third Party Custody• Estate Planning
INCOME/BENEFITS
• Supplemental Security Income and/or Retirement Survivors Disability Insurance• Appeals and overpayments
• Minnesota Supplemental Aid• SNAP • General Assistance and Emergency General
Assistance
HEALTH CARE• Medicare• Medicare Supplements• Minnesota Care
MEDICAL ASSISTANCE
Adults without Children
• $719 Income Cap• $971 for 2 people• No asset limit
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
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
ELDERLY WAIVER
4 Kinds of Waivers• Elderly Waiver• Community
Alternatives for Disabled Individuals (CADI) Waiver• TBI Waiver• DD Waiver
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 …
• 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
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
ELDERLY HOUSING SETTINGS
Assisted Living• 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
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
NURSING HOMES Federal Rules Govern Involuntary
Discharge from Nursing Home and Hospitals42 CFR 483.12 (a)
(6)• 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.
Clients Discharged for:• Non-payment• Behavioral issues• Inability to provide
care
• Challenge Discharge through MN Office of Administrative Hearings
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
Click icon to add picture
E L D E R AT T O R N E Y S P R O V I D E F I N A N C I A L C O U N S E L I N G T O O
BEING COLLECTION PROOF DOES NOT MEAN YOU SHOULD RACE TO THE MALL TO GO SHOPPING
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.
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!
ESTATE PLANNING/PROBATE
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
THANKS FOR LISTENING – CALL ME WITH QUESTIONS
612-746-3609 OR GEGABORIAULT@MYLEGAL A ID .ORG