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Minnesota Elder Law

Elder Law is a specialized area of legal practice focusing on the needs of senior citizens and the issues that affect the aging population. Estate planning is concerned with what happens when you die. Elder Law is concerned about what happens while you live. What happens if you’re not in good health, have increased health care costs, and need to rely on others for assistance, either temporarily or permanently?

Elder law attorneys must be knowledgeable about many topics, including guardianship, long-term care planning, advance health care directives, powers of attorney, estate planning, Medicare and Medicaid, asset protection, and elder abuse.

The attorneys at Gjesdahl Law handle a wide range of legal matters in Minnesota affecting older or disabled persons, including issues related to health care, long term care planning, guardianship/conservatorship, retirement planning, Social Security, Medicare/Medicaid Planning, and other important matters.

Common Questions About Elder Law in Minnesota

What is Elder Law?

Elder law is a practice area devoted to the needs of a particular type of client as opposed to a particular area of law. While not all elder law clients perceive themselves as elderly, many of them have similar needs. Elder law attorneys must be knowledgeable in many areas of the law, including guardianship, long-term care planning, advance health care directives, powers of attorney, estate planning, Medicare and Medicaid, asset protection, and elder abuse.

How much does long-term care cost?

Long-term care is expensive, whether delivered at home, in assisted living or nursing home. Costs vary by geographic region. In some of the major metropolitan areas of the United States, costs can exceed $200,000 per year. These catastrophic costs can bankrupt most middle-class families if they don’t plan in advance. An elder law attorney can explain the various options available and help guide you through the long-term care maize so that your family does not go broke paying for long-term care.

What is power of attorney (POA)?

A "power of attorney" is a legal document that delegates legal authority to another person. The person who delegates legal authority to another person is called the "principal." The person to whom legal authority is delegated is called the "attorney-in-fact" or the "agent." The use of the term "attorney-in-fact" does not refer to a lawyer. Instead, it refers to any person who is authorized to act for, or on behalf of, another person. Conversely, a lawyer is often referred to as an "attorney-at-law."

A principal can give an agent very broad or very limited powers. In either case, the powers conferred upon an agent are always spelled out in the power of attorney document.

Who should I name as my agent under a POA?

A POA conveys broad powers to an agent to act on behalf of the principal. In most cases, a durable or springing POA will authorize the agent to perform virtually all acts that the principal could perform on his or her own. Obviously, there is plenty of room for abuse by an agent. While there is some legal recourse against abusive actions of an agent, the best protection is to ensure that a prospective agent has the proper qualifications for the job. The proper qualifications are honesty, integrity, and common sense. To be sure that a prospective agent has these qualifications, the principal should have known the prospective agent for a long period of time and should have had regular dealing with this person. A spouse, a trusted family member, a proven friend, or a professional with an outstanding reputation for honesty and integrity are good candidates. A person with known financial difficulties should not be considered, nor should anyone who is unknown to the principal regardless of reputation.

Additional Elder Law Questions & Answers

 

Elder law is a practice area devoted to the needs of a particular type of client as opposed to a particular area of law. While not all elder law clients perceive themselves as elderly, many of them have similar needs. Elder law attorneys must be knowledgeable in many areas of the law, including guardianship, long-term care planning, advance health care directives, powers of attorney, estate planning, Medicare and Medicaid, asset protection, and elder abuse.

If you or a loved one is concerned about cost of long term care and how you will pay for it, then you should speak to an elder law attorney. An elder law attorney will be able to explain to you the various methods of paying for long-term care, including the government benefit programs that are available and how to qualify for them.

If you are concerned about planning for a time when you might not be able to make decisions on your own, then an elder law attorney can explain to you the various options that are available to you to make sure your wishes are carried out in the event you become incapacitated. These are just a couple of the many ways an elder law attorney can assist you. There are many more types of situations where an elder law attorney can be helpful. That is why it is so important for you to speak with one to insure your individual concerns can be addressed.

Medicare is a federal health insurance programs that provides health care coverage to individuals eligible to receive Social Security and/or railroad retirement benefits who have reached the age of 65.  People who are younger than 65 are eligible for Medicare if:

  • They have received Social Security disability benefits for 24 months; or
  • They are eligible to receive Social Security disability benefits and amyotrophic lateral sclerosis (ALS, or Lou Gehrig’s disease) or chronic kidney disease (there is no 24-month waiting period).

Today there are four parts to Medicare:

  • Part A helps cover inpatient care in hospitals, as well as some home health services. Hospice care, blood transfusion, and skilled nursing facility care;
  • Part B helps cover doctors’ and other health care providers’ services, screenings, ambulatory surgical centers, emergency department services, outpatient care, durable medical equipment, home health care, occupational therapy, telehealth, some transplant drugs, and some preventative services;
  • Part C also called Medicare Advantage, involves certain insurance plans that combine coverage of Parts A, B, and D. Each plan is different, and must be separately evaluated; and
  • Part D helps cover the cost of prescription drugs.

No. This is one of the most common misconceptions of seniors. Medicare covers short-term rehabilitation but does not cover custodial care at home or in a nursing home. Medicare will cover acute illnesses such as heart surgery or strokes, but not chronic illnesses such as Alzheimer’s disease or Parkinson’s disease. If you meet strict requirements, you may receive up to 100 days of Medicare coverage for skilled nursing care in a nursing home; however, there are significant co-payments that will be due. Some people have Medigap insurance policies which cover these co-payments. If you need help with activities of daily living such as eating, bathing, toileting, or transferring in and out of bed, these are considered custodial needs and are not covered by Medicare.

Long-term care insurance is designed to cover the cost of long-term care if you need it in the future. In order to purchase a long-term care insurance policy, you must go through the underwriting process of the insurance company. They want to make sure you are in good health and don’t have certain pre-existing conditions prior to issuing the policy. Depending on the type of policy your purchase, you will be required to pay premiums for the rest of your life or for a certain period of years. In exchange for the payment of premiums, the insurance company will cover you, up to the policy limits, for the cost of your long-term care, if necessary. In light of the fact that Medicare does not cover long-term care, long-term care insurance should be considered as part of your overall estate planning.

Long-term care is expensive, whether delivered at home, in assisted living or nursing home. Costs vary by geographic region. In some of the major metropolitan areas of the United States, costs can exceed $200,000 per year. These catastrophic costs can bankrupt most middle class families if they don’t plan in advance. An elder law attorney can explain the various options available and help guide you through the long-term care maize so that your family does not go broke paying for long-term care.

Basically, there are four ways to pay for long-term care: (a) Private pay, which can cost more than $200,000 per year in some areas, (b) Medicare, which only covers short-term rehabilitation for skilled nursing care and does not cover custodial, long-term care, (c) long-term care insurance, which must be purchased while you are healthy, and (d) Medicaid, which is the only government program that pays for long-term care.

Medicaid was intended to be for people who are destitute. In fact, to qualify you must meet strict income and asset guidelines. This presents middle class folks who have a loved one with a chronic illness with a Hobson’s choice: impoverish yourself and your family, or engage in Medicaid planning. Once you have been diagnosed with a chronic illness such as Alzheimer’s disease, Parkinson’s disease, or some other illness for which modern medicine does not have a cure, you will not qualify for long-term care insurance and Medicare does not pay for your long-term care. Thus, you either pay out of your own pocket for long-term care or you work with an elder law attorney in an attempt to qualify for Medicaid.

The sooner, the better. We don’t have a crystal ball so we never know when illness will strike. While many of us think of nursing home residents as people who are elderly, a significant number of people who need long-term care are middle age or younger. Thus, it is never too early to plan. Moreover, the government has imposed stringent rules penalizing transfers of your assets prior to entering a nursing home. You may be disqualified from receiving Medicaid if you have made asset transfers during the five-year lookback period prior to applying for Medicaid. An elder law attorney can explain the Medicaid lookback and penalty period rules to you so that inappropriate, disqualifying transfers are not made.

A "power of attorney" is a legal document that delegates legal authority to another person. The person who delegates legal authority to another person is called the "principal." The person to whom legal authority is delegated is called the "attorney-in-fact" or the "agent." The use of the term "attorney-in-fact" does not refer to a lawyer. Instead, it refers to any person who is authorized to act for, or on behalf of, another person. Conversely, a lawyer is often referred to as an "attorney-at-law."

A principal can give an agent very broad or very limited powers. In either case, the powers conferred upon an agent are always spelled out in the power of attorney document.

A principal can grant an agent the authority to do virtually anything the principal could do on his or her own. A POA that grants broad powers to an agent is often referred to as a "general power of attorney." A POA that grants only limited or specific powers is referred to as a "special power of attorney." 

Yes. There are three different kinds in common use today; namely:

  • Durable Power of Attorney
  • Springing Power of Attorney
  • Regular Power of Attorney

Under common law, a power of attorney became effective as soon as it was signed by the principal, and it remained in effect until the principal revoked it or the principal became incompetent or died. Because a POA terminated upon the principal’s incompetency, it was virtually useless as a tool to manage the affairs of the principal during incompetency. For estate planning purposes, this is precisely when a power of attorney was needed most.

Today, a power of attorney that survives the incompetency of the principal is referred to as a "durable power of attorney." or "DPOA."   To constitute a DPOA, most states require that the document contain the following provision - or words of similar intent:

This power of attorney shall not be affected by the subsequent disability or incompetency of the principal, or lapse of time.

A "springing power of attorney" does not become effective as soon as it is signed by the principal. Instead, it becomes effective upon the happening of a specific future event, such as the incompetency of the principal. Many institutions have difficulty accepting a springing POA because it is often difficult to determine if the specific future event has actually occurred. Incompetency, for example, often occurs over a long period of time and it is difficult to determine when someone crosses over the line. For this reason, most professionals will provide in a springing POA that a physician must certify that the principal is incompetent in order for the POA to "spring" into effect.

A POA that is neither a "durable" nor a "springing" power of attorney is simply referred to as a power of attorney. However, some people do refer to it as a "non-durable power of attorney."

For the most part, a DPOA is intended to be used in the event the principal is unable to make decisions on his or her own. It is generally thought to be a much better solution that having the courts appoint a guardian or conservator to act for the principal. Many professionals also prefer to use a DPOA even if the power is to be used immediately for a specific purpose, such as for a real estate transfer. In that case, if the principal should become incompetent prior to the occurrence of the specific purpose, then the agent could still complete the transaction.

Consider the following hypothetical: Assume that a principal wants to close on the sale of real property on Friday but can’t be at the closing. On the preceding Monday, he gives his wife a DPOA to act on his behalf. On the following day, the principal is injured in a car accident and is unconscious in a hospital when Friday arrives. On Friday, the principal’s wife completes the transfer on his behalf using the DPOA. If the POA wasn’t durable, the transfer would have been delayed or possibly lost forever.

Like the DPOA, a springing POA is intended to be used in the event the principal is unable to make decisions on his or her own. It is generally thought to be a much better solution than having the courts appoint a guardian or a conservator for the principal. The difference is that a durable POA becomes effective as soon as it is signed by the principal whereas the springing power of attorney becomes effective only if - and when - some future event occurs, such as when the principal becomes incompetent. In a perfect world, the springing POA would be far preferable to the durable POA because a springing POA becomes effective only when it’s actually needed. The durable POA presents a little bit of a problem because it becomes effective immediately, even though the principal is fully capable of acting on his or her own. The problem with the springing POA is that it’s very difficult to say when the triggering event occurs. If the triggering event is the principal’s incompetency, how do you know when that occurs? You might require that a physician certify to the principal’s incompetency but, in practice, it becomes a rather messy affair. For this reason, many estate planning attorneys prefer to use the DPOA and have the principal keep all the originals until it’s time for the agent to act.

A POA conveys broad powers to an agent to act on behalf of the principal. In most cases, a durable or springing POA will authorize the agent to perform virtually all acts that the principal could perform on his or her own. Obviously, there is plenty of room for abuse by an agent. While there is some legal recourse against abusive actions of an agent, the best protection is to ensure that a prospective agent has the proper qualifications for the job. The proper qualifications are honesty, integrity, and common sense. To be sure that a prospective agent has these qualifications, the principal should have known the prospective agent for a long period of time and should have had regular dealing with this person. A spouse, a trusted family member, a proven friend, or a professional with an outstanding reputation for honesty and integrity are good candidates. A person with known financial difficulties should not be considered, nor should anyone who is unknown to the principal regardless of reputation.

Yes. You can appoint multiple agents if you wish. If you appoint two or more agents, you must decide whether each agent can act separately in managing your affairs or whether they both must act together. Requiring both agents to act together can help protect against abuse, but it also makes it more difficult for the agents to get things done. This is especially true if one agent is local and the other is out of state. One solution is to allow either agent to write checks for the payment of regular recurring bills, but to require both agents to sign for other actions, such as changing investments, signing accounting and tax forms, etc. This is one area where the advice of a professional advisor can be invaluable.

Yes. The agent named in a POA is only the representative of the principal. As long as the principal is capable of making his or her own decisions, then the principal is free to carry on as though the POA didn’t exist. 

Yes, if that is one of the powers conveyed to your agent under your POA. Most states, however, provide for a health care directive or a health care proxy, which is essentially a POA for health care decisions. This is a separate document from a POA for financial purposes. The preferred practice is to have a durable POA for financial purposes and a health care directive for medical decisions. 

Advance health care directives are written instructions to your loved ones and caregivers about the type of medical treatment and health care you'd like to receive if you're unable to communicate directly with your health care providers.  Because these statements are made before the medical treatment and health care is actually needed, they are often referred to as "advance directives" or "health care instructions."

There are two kinds. The first is called a "living will."  The second is called a "durable power of attorney for health care" or a "health care proxy."  Many states authorize others as well; for example, the making of anatomical gifts, the pre-designation of a conservator in the event of future incapacity, and the designation of a custodian for bodily remains. 

No. You are not required to have any of these. But, one or more of them is a good way to ensure that your wishes are known if you’re ever in that situation. If your wishes are known, then your medical service providers will know what procedures to follow and your family and friends will be spared the agony of second-guessing what you would have wanted. 

A living will is a legal document that states your preferences for medical treatment if you are terminally ill or permanently unconscious and unable to actively take part in making decisions for your own life. In that case, the living will states that you want to be allowed to die and not be kept alive through life support systems.  Living wills do not appoint an “agent” to make and express decisions on your behalf.

The term "terminally ill" generally means that you have an incurable or irreversible medical condition that will result in death within a relatively short period of time. The term "permanently unconscious" generally means that you are in a permanent coma or a persistent vegetative state, which is an irreversible condition in which you are not aware of yourself or your environment and show no response to the environment. Under a living will, you can state whether you want - or don’t want - certain life-sustaining procedures, including artificial respiration, cardiopulmonary resuscitation, and artificial means of providing nutrition and hydration.

Yes. That decision is entirely up to you. But, it’s an important decision, so most professionals recommend that you discuss the available options with your loved ones and your professional advisors. Some people don’t feel comfortable making a living will, while many others do.

Artificial nutrition and hydration refers to the use of artificial means to feed and hydrate a person who is not able to eat and drink on his own. It generally includes giving food and water through an intravenous catheter (commonly called an "IV") or through a nasogastric tube.

A "durable power of attorney for health care" is a legal document in which you name another person as your agent to make health care decisions for you. A durable power of attorney for health care is exactly the same as any other durable power of attorney except that it pertains only to your health care, not financial matters. You can include instructions about the types of medical treatments you want - or don’t want. The following are a few examples of the types of things you can include: Your personal goals, values and preferences; the types of medical treatment you would want - or don’t want; how you want your agent to make decisions; where you want to receive care; instructions about artificial nutrition and hydration; mental health treatments; organ donations; funeral arrangements; and whom you would like to have as a guardian or conservator of your person if one is to be appointed for you. You can be as general or as specific as you like, because it is your directive to your designated agent. 

This is a very important question. Whomever you decide to name as your agent under your durable power of attorney for health care, it should be someone you know very well. It should also be someone you respect and someone who’s judgment you value. Moreover, the person you name as your agent should be somewhat knowledgeable about medical issues, although it’s not necessary that this person have any medical training. This person should also have a good understanding of who you are and what your values and feelings are. After all, this person could be stepping into your shoes to make the very difficult medical decisions that you would have to make for yourself if you were able to do so. Most professionals recommend that you name only one person to serve as your health care agent. Even so, you should also name an alternate in case your first choice is unable or unwilling to act for you. Many individuals also have two or more children and they don’t want to name just one child as their health care agent because it may slight the others. If only one of your children lives close to you or if only one of your children is able to act for you, then name just that one as your health care agent, with one or more of the others as alternates. If that is not the case, then you should consider naming all of them as your health care agents in order to avoid slighting any one of them. Of course, these are issues that many people struggle with. But, most people agree that it’s better to have the struggle before you actually need someone to make these health care decisions for you.

Yes. As stated above, you can appoint as many agents as you would like. However, if you appoint more than one agent, then you should specify whether each agent can act separately or whether they all must act collectively. There are advantages and disadvantages to both forms of appointment. Requiring your agents to act collectively can safeguard the soundness of their decisions, but it may be very difficult for all of them to agree on every decision. If any one of them can make decisions for you, that may be much easier to get things done, but it may also cause serious disagreements among them if they are not told in advance. Another option is to appoint only one agent, with another named as an alternate in case the first named agent is unable to act for you. 

You may put a statement to that effect in your durable power of attorney for health care. You should also check with your state to determine whether it has a statewide organ donor system in place. Some states provide for notification of organ donors on its driver’s licenses. You should also notify your spouse, family, friends and personal physician of your intentions regarding organ donations.

There are forms available for this purpose. Some states even have specimen forms that are available free of charge. But, you don’t have to use a form if you don’t want to. You can write out your wishes on a separate piece of paper, or you can get a sample form from the library or from the internet - without having to pay a fee. Most attorneys provide these forms as well and, generally, are included as part of your overall estate planning at no additional charge. 

There are some legal requirements, though, that you must comply with in order to create a legally binding document: You must be at least 18 years of age at the time you sign the document. The document must be in writing. It must state your name. It must be signed by you or by someone authorized to sign for you. Your signature must be witnessed by two witnesses and your signature must be notarized by a notary public. It should include the name, address and relationship to you of each person you designate as your agent for health care decisions and, if you designate more than one, whether they will act consecutively or concurrently. If they are to act concurrently, you should also indicate whether they will act jointly or separately. If you wish to make such a pre-designation of a guardian or conservator for future incapacity, it should include the name, address and relationship to you of each person you pre-designate as your guardian or conservator. If you designate more than one person, you should indicate whether they will act consecutively or concurrently. If they are to act concurrently, you should also indicate whether they will act jointly or separately.

Yes, these documents are valid in all 50 states as long as they are valid in the state in which they are executed. However, if you move permanently to another state, it’s a good idea to review these documents to ensure that they fully comply with that state’s requirements.

There is no time limit for these documents.  Generally, they will last until you change them or terminate them. You may change them at any time and from time to time by simply signing new documents. It is always a good idea to destroy your old documents so that they aren’t confused with your new ones. You may also terminate them at any time by:

  • Signing a written statement to that effect.
  • Destroying the original and all copies.
  • Telling at least two people that you are terminating them.
  • Writing new instructions.

No. But, if you have any questions about any of these documents, particularly the people you should appoint as your health care agent, then it is advisable that you consult with someone who is knowledgeable about such matters. Estate planning attorneys are often well versed in such matters because they have been through it many times with their clients…and, maybe, even their own family members.