Genevieve Gaboriault Supervising Attorney Senior - PowerPoint Presentation

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Genevieve GaboriaultSupervising Attorney Senior Law ProjectMid-Minnesota Legal Aid

Elder Law

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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

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Older Americans Act - 196542 USC Chapter 35 – Program for Older AmericansPart 1 – General Provision

Part B – Supportive Services

Part C – Nutrition Services

Part D – Disease Prevention and Health Promotion ServicesPart E – National Family Caregiver Support Program

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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)

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End of Life Planning

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3 Primary Planning DocumentsWills/TrustsPower of Attorney formsHealth Care Directives

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Wills/TrustsMaybe not necessary for poverty law clients

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Power of AttorneyGives 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 actionsCan be a great tool, but also referred to as the “Power to Steal”Can be durable or non-durableRevocable by principal

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Health Care DirectiveFormerly known as Living WillGood idea to prepare one and give to your family and your health care providers

Can be as specific or as general as you wish

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*Important to Identify your Client* Family members call with questionsSocial 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 homeLarge type Less formal in some documentation

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Levels of AutonomyNo restrictions Power of Attorney

Representative Payee (for social security checks)

Conservator – court appointed person who controls the

conservatee’s moneyGuardian – court appointed person who determines the ward’s non-financial choices Committed to institutions

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Substantive Law

Income/Benefits

Health care

HousingConsumerThird Party Custody

Estate Planning

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Income/BenefitsSupplemental Security Income and/or Retirement Survivors Disability InsuranceAppeals and overpayments

Minnesota Supplemental Aid

SNAP

General Assistance and Emergency General Assistance

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Health Care

Medicare

Medicare Supplements

Minnesota Care

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Medical AssistanceAdults 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

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M.A.MA covered health care for the 3 months prior to the applicationClients 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 recipientsPeriod of non-eligibility5 year look back on asset distribution

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Elderly Waiver4 Kinds of Waivers

Elderly Waiver

Community Alternatives for Disabled Individuals (CADI) Waiver

TBI WaiverDD 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.

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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

Cases256b.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

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Housing – Private and subsidizedAll the same housing issues as non-elderly folksEvictions, 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 modificationsBreak lease due to impossibility

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ELDERLY housing settingsAssisted 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 providerLargely 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

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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

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ConsumerDebt collection defenseWage garnishmentFinancial 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

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Elder attorneys provide financial counseling too

Being collection proof DOES Not mean you should race to the mall to go shopping

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Third Party CustodySome grandparents wish to formalize their caregiving relationship for their grandchildren. There are two methods – interested 3

rd

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

.

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OTHER

Drivers License Privileges revoked

Needs state ID for MPHA but no birth certificate

Mechanics’ Lien on house for construction projectAnything you can think of!

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Estate Planning/Probate

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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 interestingVaried 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

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Thanks FOR Listening – Call me with questions612-746-3609 or gegaboriault@mylegalaid.org