Officials Who Wrongly Told Medical Assistance Applicant His Property Would Not Be Subject to a Lien Are Not Liable

A Minnesota appeals court holds that county officials were not liable for negligent misrepresentation for incorrectly telling a medical assistance applicant that his property would not be subject to a lien because the information was readily attainable from other sources. Benigni v. St. Louis County (Minn. Ct. App., No. A15-1154, June 13, 2016).

Kenneth Benigni applied for medical assistance benefits from the state. According to Mr. Benigni, the application did not include information that the state had a right to place a lien on his property in order to recoup medical assistance benefits paid on his behalf. In 2005 and 2007, Mr. Benigni received renewal forms that included information about the lien. He asked two county officials about the lien and they told him he would not be subject to a lien. In 2007, after requesting further information, Mr. Benigni discovered that he would be subject to a lien and he cancelled his medical assistance.

Mr. Benigni sued the county for negligent misrepresentation, arguing that the county officials supplied false information to him about whether a lien could be placed on his property. The trial court granted summary judgment to the county, and Mr. Benigni appealed.

The Minnesota Court of Appeals affirms, holding that the county was entitled to summary judgment. The court notes that government officials are not liable for negligent misrepresentation if the information is readily attainable by the public unless the officials are learned in the field or have a fiduciary relationship with the person they are giving information to. The court rules that in this case, Mr. Benigni did not have a fiduciary relationship with the county officials and he could have found out the information by seeking legal advice from an attorney.

For the full text of this decision, go to: https://scholar.google.com/scholar_case?case=16578495422167999573&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Did you know that the ElderLawAnswers database now contains summaries of more than 2,000 fully searchable elder law decisions dating back to 1993?  To search the database, click here

Randy F. Boggio Attends Annual Special Needs Planning Meeting

Randy F. Boggio, Maser, Amundson, Boggio & Hendricks Shareholder, attended the 10th annual meeting of the Academy of Special Needs Planners, held in Tucson, Arizona, March 10 – 12.  The 235-member Academy is the nation’s leading organization of special needs planning professionals.  Members of the Academy devote a significant part of their practices to working with individuals with special needs and their families to plan for the future and ensure that children with special needs receive ample financial protection.

The Academy’s annual meeting featured presentations by some of the nation’s leading experts in special needs planning, who kept attendees current on the latest regulatory changes and legal decisions and shared strategies for better serving clients and their families in this fast-growing legal field.  Meeting sessions included “An Update on SSI Rules,” “Special Needs Trusts and Retirement Benefits,” “Recent Trends in Special Needs Planning,” “Identifying and Handling ‘Tricky Issues’ in SNT Administration,” as well as an “Ask the Experts” panel discussion.  Perhaps most importantly, the meeting afforded the chance for attendees to exchange planning ideas and strategies with fellow members working in special needs planning around the nation.

This year’s meeting was held concurrently with the Society of Settlement Planners, giving attendees invaluable insights into how to best work with these key players in the special needs arena.

Maser Amundson Boggio & HendricksPart of the PBS ‘In America’ Project

Maser, Amundson, Boggio & Hendricks will be a part of the “In America” segments to air on PBS. The segment features Attorney Kris Maser explaining the field of elder law through discussions with clients and providers. Kris gives the viewer a general idea of how our firm addresses issues facing our clients around the difficult decisions which need to be made with legal guidance and genuine concern and caring.

“In America” is narrated by James Earl Jones and “is developed alongside groundbreaking organizations and forward industry experts.” PBS developed this “collaboration of thought leaders” and “created a strong foundation for their innovative programming lineup.”

We are proud of the segment on Maser, Amundson, Boggio & Hendricks and honored to be part of the PBS “In America” project:

Attorney Kate Graham Presents at the MSBA New Lawyers Section

Attorney Kate Graham, as a board member of the Collaborative Community Law Initiative (CCLI), was part of a panel presentation at the MSBA New Lawyers Section. The presentation was entitled “Fit to Practice: Cultural Competency in Law Practice.” CCLI’s motto is “Mentoring New Lawyers to Serve Community Needs.”

We are proud of Kate and her contribution to guiding new lawyers.

Attorney Kate Graham Presents at the MSBA New Lawyers Section

Fit to Practice: Cultural Competency in Law Practice
CCLI Board Members Present at MSBA New Lawyers Section

CCLI Board members (from left to right above) Camille Bryant, Nelson L. Peralta, Sophia Vuelo and Kate Graham presented a one hour panel discussion on overcoming barriers created by social and cultural differences at the MSBA’s New Lawyer Section December meeting.  Kate moderated the discussion, and Camille, Nelson and Sophia, all skilled attorneys, shared their experiences and stories of working with clients and colleagues of diverse backgrounds.

According to one audience member, “I wish everyone could have heard this, not just lawyers….The panel gave concrete examples of how to work with clients and colleagues with different backgrounds.”

Guardianships/Conservatorships

If your loved one is having trouble managing her affairs because of a mental or physical disability, consider consulting an elder law attorney about establishing a guardianship, conservatorship, or both. An example of a prime candidate for a guardianship or conservatorship would be an elderly man or woman diagnosed with dementia who needs help managing health care, paying bills, or is being unduly influenced by others. However, there are many other scenarios that call for the help of a guardian or conservator. Contact the office of a local elder law attorney for more information.

Even though the legal definitions vary from state to state, there is a general distinction between the terms, “guardian” and “conservator.” A guardian has a broad scope of responsibility for the interests of the ward, which is the title given to an individual with a guardian. These responsibilities include health care management and involvement in the protected person’s daily affairs. Conservators are appointed mainly for money management, which means they have a less active role in the day-to-day activities of the protected person (an individual with a conservator). In many instances, guardian/conservator is a joint role held by one person or entity, such as a spouse, adult child, or even a non-profit or fiduciary corporation. However, different people may be appointed to these respective roles. In other cases, there may be a conservator but no guardian.

Guardians and conservators must be appointed by the court. The process begins with any person interested in the well-being of the potential ward or protected person hiring an elder law attorney to draft a petition to the court for guardianship or conservatorship. This petition lists the reasons why a guardian or conservator is needed and nominates one or more candidates to fill the role. A Physician Statement from a doctor indicating the potential ward or protected person is unable to manage their medical decisions or finances should be submitted, as well. After the petition and Physician Statement are filed, the court and the attorney’s office schedule a hearing. The potential ward or protected person is entitled to attend, either alone or with her own legal representation. The judge considers many factors when deciding whether somebody needs a guardian or conservator. To name a few, he or she reads the initial petition and Physician Statement, any additional information submitted by a court visitor (who meets with a potential ward and writes a report for the judge), and the testimony that a potential ward or protected person, petitioner, and witnesses provide on the day of the hearing. The judge will then issue a decision and appoint a guardian or conservator if the evidence supports that decision.

Here is something to consider before petitioning for guardianship or conservatorship. Are there already other legal documents in place, such as a Durable Power of Attorney or a Revocable Trust? These types of documents appoint individuals to fill similar roles to guardians and conservators. If there are documents in place, to what extent do they protect the individual? Are the people appointed in the documents working for the best interests of the ward or protected person?

To learn more about whether a guardianship or conservatorship is appropriate, or to find out how a guardianship or conservatorship relate to previously established legal documents, contact the office of an attorney in your state who specializes in elder law. This attorney will be knowledgeable of your state’s specific laws and provide you with the information you need to arrive at a proper decision, one that should not be made without the advice of legal counsel.

What Is A Letter Of Intent?

A Letter of Intent is a document that goes hand-in-hand with a Special Needs Trust or a Supplemental Needs Trust. Also known by the names “Plan of Care,” “Memorandum of Care,” and “Memorandum of Intent,” the purpose for writing a Letter of Intent is to provide instructions and information to new caretakers when a person with special needs is transitioning out of the direct care of a parent or legal guardian. Since the parent or guardian is the ideal source of details about a beneficiary’s specific needs, preferences, and personality traits, writing a Letter of Intent is key for preserving the beneficiary’s quality of life.

As you can imagine, Letters of Intent often take some time to write because there is much information to record. Not only should the names and addresses of doctors, financial advisors, and close family members be provided, it is also crucial to include the Beneficiary’s favorite foods, entertainment preferences, daily habits, future goals, and friends. Making this information available will help enhance the Beneficiary’s ability to adjust to the change of scenery and caretaker. It will also assist the new caretaker with supplanting a personal connection with the Beneficiary. Since Letters of Intent are not legal documents and do not need to be notarized, keep in mind that they are malleable. A Letter of Intent should be edited and re-printed as the Beneficiary’s needs and preferences evolve. Remember, if you are the guardian, review the Letter of Intent with the Beneficiary and other members of his or her network of support on a regular basis and make sure that the most current edition travels with the legal documents.

For more information about Letters of Intent and transitions of care for your child with special needs, consult an attorney or visit www.pacer.org and www.thearc.org.

What Can Be Paid For With Trust Funds?

One of the most important and common questions that Trustees ask is regarding the specific sorts of items that funds from a Special Needs Trust and Supplemental Needs Trust may purchase for the Beneficiary. Generally speaking, there are three important questions to keep in mind when making this decision: 1) Is the good or service provided by government benefits? 2) Is the distribution allowed by the Trust Agreement? 3) Is the distribution for the sole benefit of the Beneficiary?

Let’s say, for example, that the Beneficiary’s transport vehicle needs a repair to its accessible ramp. This repair cost can paid with trust funds if it is not covered through government assistance, if  this type of expense is allowed in the Trust Agreement, and if the distribution is for the sole benefit of the Beneficiary. In most cases, an accessible ramp repair fits the bill. Some other examples of common trust purchases are a new TV for the Beneficiary’s room, a hotel room rental on vacation, a class at a local community college, or non-government funded medical expenses such as massage therapy.

Things may get a little bit more confusing when it comes to paying for food and shelter. Government assistance is intended to cover housing and food, so in order for the Beneficiary to continue receiving all of his or her available funding, it is important to make sure that trust funds do not pay for groceries, regular restaurant meals, rent, utilities, or home insurance. Also, the Beneficiary should not receive cash directly from the trust. Legally speaking, these types of expenditures are an increase to the Beneficiary’s personal income, which triggers a reduction in government funding. However, one caveat to keep in mind is that when trust funds are used for food and shelter costs, there is a reduction of only $1 dollar to SSI benefits for every $3 dollars spent. For some beneficiaries, this tradeoff may actually be the best course of action. That is why it is helpful to consult with an attorney who specializes in Special and Supplemental Needs Trusts. Not only will the attorney explain the full range of goods and services that the trust may provide, he or she will also be able to hash out the best spending options for your given situation.

Important Issues For Trustees

Taking on the role of Trustee of a Special Needs Trust or Supplemental Needs Trust is an important responsibility. It is a Trustee’s duty to manage trust funds with careful discretion and disburse the funds for the sole benefit of the Beneficiary. The Trustee has the additional responsibility of seeing that the trust funds are properly invested and protected. Considering the scope of the undertaking, there are a few things potential Trustees should consider before accepting the role.

First, make sure that you have the opportunity to read the trust agreement and learn the specific duties unique to the trust nominating you as Trustee, such as what sorts of expenditures can be funded with trust assets, what are the legal responsibilities and duties you assume in the Trustee role, and whether the Trust provides for financial compensation for your role as Trustee. In addition, you should also establish the Grantor’s objective for creating the trust, the personal goals that you can help the Beneficiary achieve while you serve as Trustee, and how long your services as Trustee will be needed. Finally, taking time to become familiar with the Beneficiary’s needs, habits, and preferences is very important since it is the Trustee’s job to provide distributions to meet the Beneficiary’s supplemental needs.

If you are nominated as the Trustee in a Special Needs Trust or Supplemental Needs Trust, it is a good idea to consult with the attorney who drafted the trust agreement so the ins and outs of your duties may be fully clarified. As drafters of the trust, attorneys are ultimately your best source of answers for your preliminary questions. Keep in mind that it is important to be honest with yourself as you consider becoming a Trustee. If the trust agreement is unavailable for your review or if you do not feel that you have the time to undertake the Trustee role, it is wise to reconsider for your own good and the good of the Beneficiary.

What Is A Supplemental Needs Trust?

What Is A Supplemental Needs Trust?

A Supplemental Needs Trust is established for the benefit of a person with special needs as long as the Beneficiary is not over the age of 65. and residing in long-term care without a reasonable expectation of discharge. Use of a Supplemental Needs Trust allows the Beneficiaries, to retain their government assistance and also have funds available for opportunities like advanced medical treatments, education, and leisure activities. The objective behind establishing a Supplemental Needs Trust is similar to that of a Special Needs Trust, which the subject of a previous blog article.

The trust’s “Grantor,” which is the title given to the person who establishes the Supplemental Needs Trust, may be a parent, grandparent, actually anyone other than the Beneficiary or the Beneficiary’s spouse. Similarly, funds in the trust may come from anyone other than the Beneficiary or the Beneficiary’s spouse. Grantors typically establish the Supplemental Needs Trust with their own assets through a Will or through a “stand-alone” Supplemental Needs Trust. In doing so, the Grantor may appoint herself or another person as the Trustee, who has the responsibility to disburse funds to pay for expenses of the Beneficiary not covered by government assistance. Funds from the trust are not allowed to be disbursed directly to the Beneficiary. Disbursements from the Supplemental Needs Trust can be made only to the person or entity providing the goods or services to the Beneficiary. When the Beneficiary passes away, the funds or assets in the trust are not subject to claim by the government; it is disbursed according to the terms of the trust agreement; i.e., to family members, friends, non-profits, or whomever the Grantor designates.

The information in this article just is a short overview of what there is to know about Supplemental Needs Trusts. The best way to learn more about a Supplemental Needs Trust offers is to schedule a consultation with an attorney in your state who specializes in this area of practice.

What Is A Special Needs Trust?

A Special Needs Trust is a trust established to meet the supplemental needs of a person with a legally defined disability who is under the age of 65. The trust is funded with funds or assets which already legally belong to the disabled individual. These can be assets that are already in their name, a cause of action on behalf of the beneficiary which will provide a settlement amount or jury award to the beneficiary from a personal injury or medical malpractice action; accounts on which the beneficiary is already named as a beneficiary payee or joint tenant; or the beneficiary’s interest in a property settlement in a divorce action. A Special Needs Trust is commonly called a “first party trust” because the trust is funded with assets which belong to the beneficiary.

The Special Needs Trust may only be established by the beneficiary’s parents, Guardian or conservator or by court order. Whoever is establishing the trust is called the Grantor. Once funded the trust can be used to supplement the government assistance provided to the beneficiary. These benefits can include advanced medical treatments, education, leisure, furniture, appliances and activities. Once the trust is funded the Trustee is the person who manages the trust funds and makes disbursements on behalf of the beneficiary. Disbursements can only be made for the benefit of the beneficiary and not for the beneficiary’s spouse or family members. Because the funds belong to the beneficiary prior to their placement into the trust a Special Needs Trust must contain a “payback provision”. This provision provides that upon the death of the beneficiary the trustee must first satisfy any claim by the state for medical assistance benefits provided to the beneficiary.

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