Transcript Elder Law - Homestead

ELDER LAW
G E N E V I E V E G AB O R I A U L T
S U P E R V I S I N G AT T O R N E Y
S E N I O R L AW
M I D - M I N N E S O T A L E G AL AI D
P R O J E C T
WHAT IS ELDER LAW?
A. Something to do with elderberry wine
B. Something about boring old people
C. A lecture that I have to listen to in my poverty law
class
D. 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
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TITLE I – DECLARATION OF OBJECTIVES FOR OLDER AMERICANS
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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
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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
Nursing Homes/MN Vet Homes
• 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
• “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)
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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
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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
BEING COLLECTION PROOF DOES NOT MEAN YOU SHOULD
RACE TO THE MALL TO GO SHOPPING
ELDER ATTORNEYS PROVIDE FINANCIAL COUNSELING TOO
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 [email protected]