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:

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.

Elder Care Dilemma – One Family’s Solution

Kris Maser Attorney at Law

In my 30 years as an elder law attorney I have had the opportunity to counsel many families in the journey through the elder care maze. Families struggle with the want to help their elders, the high cost of care outside and even inside the home, the time commitment for care, jobs outside the house, layoffs because of the current economic condition, and caring for the family and children. I have seen some creative solutions and some disasters.

Let me share with you one family’s solution to their elder care dilemma. Mother – age 73 and father – age 84. Mother is healthy and has been caring for her husband who was diagnosed with Alzheimer’s disease 4 years ago. Mother admits she is tired and feels isolated. There are 4 children in the family. All children have children. Three of the 4 children live in Minneapolis, the 4th lives in San Francisco. Two of the children have been laid off from their jobs and have been looking for work for the past 8 months. One child, a daughter, is a registered nurse and is working. She is single with 3 small children.

All children get along. After much discussion with Mom and Dad alone in my office and later with the children, with the consent of the parents, a plan was devised to help mom care for dad, help single daughter with daycare issues, find employment for the 2 laid off children and keep the child in San Francisco involved.

In a nutshell this is what the plan looks like. The parents will pay to build an addition to RN daughter’s house to add a mother-in-law suite. (This daughter has the space on her property to do so.) The value of this addition to the house will be noted and used for further discussion about the division of the parents’ estate upon both parents’ death. A contract will be developed to determine who is responsible for what costs in the maintenance of the family compound.

RN daughter will continue to work but will monitor and oversee medications and be involved with medical issues for Dad. Mother will continue to provide care. The two children who are currently unemployed will be hired by Mother and Dad to augment care for Dad and for Mother, if Mother begins to need help. Social security will be withheld, along with FICA, FUTA and workers compensation insurance. The three children will allocate hours for care, develop cleaning schedule and meal preparation schedules, and be on sight to assist Mother with care for father and to care for father when Mother needs time away.

The children of RN daughter are school age, but need oversight after school. They will now be able to return home after school. RN daughter will discontinue the after school programs that the family used to provide daycare for her children while she is working.

AND the child in San Francisco? This child agreed to handle the investments, income taxes, set up the accounts, pay the parents bills and pay the salaries of siblings. This child will also make periodic trips to Minnesota to visit the parents and spell the other three children. (The parents don’t see this child enough and would like to pay for the child’s return to Minneapolis more often.)

We have a lot of things to determine here. How long can the parents stay independent? What happens if any of the children want out of the arrangement or if the parents want out? How do we determine salaries for the children? What other work is to be done around the house while the children are caring for the parents? Is any of this work going to benefit the RN daughter and if so should she pay the other children? Should RN daughter be paying siblings and parents for the child care? Who is responsible for meal preparation? Who will pay for groceries? Do the siblings have to bring their own lunches? And how will the parents allocate the funds that remain, if any, after their deaths?

Interesting, isn’t it. When care was being provided to parents during the depression often times there was no money to pay for expenses. Everyone just pitched in. The benefit now is that in this family they are choosing to provide care at home and pulling the entire family together to do it. Thankfully there are sufficient funds to carry this program on for some time.

How to Choose an Elder Law Attorney

Kris Maser Attorney at Law

There 4 law schools in the Twin Cities area. This means there are approximately 1,200 new lawyers graduating each year. With the economy as it is today these new lawyers as well as more seasoned lawyers are finding jobs hard to find. Choosing a good Elder Law attorney in these times is no easy task. The area of Elder Law encompasses a number of different areas of the law and some non-legal decisions, some of which are interdependent upon each other. Issues arise with real estate, estate planning and estate taxes, disability planning, income and capital gains taxes, caregiver issues, trusts, long-term care insurance issues, age discrimination, short and long-term disability, hospice care, contracts with caregivers, assisted living facilities, family members, housing options, medical insurance issues, Social Security, Medicare, Medicaid and Veteran’s benefits, both State and Federal, and a myriad of other related health care issues, including how to organize the family to maintain and oversee good care for the elder.

Since the area of Elder Law is complex, choosing an Elder Law attorney who practices and has substantial experience in the Elder Law arena will help you address all the concerns that can impact an elder’s quality of life. Here are some suggestions to help you choose the right law firm and attorney for your needs.

• Make sure that the attorney practices Elder Law. An estate planning attorney traditionally deals with how to distribute your wealth after you have passed away. An Elder Law attorney works in the area from retirement or disability to the end of life and beyond. Minnesota does not have a specific specialty for the Practice of Elder Law. Consequently it is important that you research the background of the attorney. The National Elder Law Foundation certifies Elder Law specialists in the United States. This certification doesn’t guarantee that one lawyer will serve you better than another, but it may be a good place to start. Be mindful of the certification though. This certification is national. Elder Law can and is very State specific. The national certification cannot deal with all the nuances of the laws in each individual state.

• Friends and other professionals are a very good source of information. Tap into these resources and find out who they recommend. If the attorney’s name comes up from different sources chances are the attorney knows what he/she is doing.

• Go to the law firm’s website and read the information about the attorney. There you may find additional information about how long the attorney has practiced in the Elder Law area, what roles the attorney has had in the elder bar and if the attorney participates in other organizations that work in this area. Perhaps you will find out if the attorney has had personal experience in his/her family with caring for a family member. How does the attorney give back to the community? And finally, find out how much of the attorney’s time is devoted to the Elder Law practice. Is it the focus of the firm or is Elder Law just a minor piece of the firm’s areas of practice?

Finding a good Elder Law attorney before a problem becomes a crisis is good advanced planning.

How Does the State of Minnesota Define a Vulnerable Adult?

By Kris L. Maser

Under Minn. Stat. section 626.5572 sebd.21 a vulnerable adult is defined as:
a person 18 years or older who:

• Receives certain services from a qualified provider
• Regardless of services received, possesses physical, mental, or emotional infirmity or dysfunction

What is the purpose of this definition?
• To trigger a mandated report
• To guide responders
• To guide law enforcement

Here are some factors to consider in determining if someone is a Vulnerable Adult:
• Current medical condition
• Current financial condition
• Living arrangements
• Involvement of family members/friends/neighbors
• Recent life events (death of a spouse, inheritance, change in medical condition)

Red Flags – financial exploitation:
• Opening new bank account or unusual bank activity
• Checks being signed by someone other than the vulnerable adult
• Accumulation of bills or debts even though a power of attorney document exists
• Recent signature of power of attorney, joint checking account, mortgage documents
• Use of the vulnerable adults’ debit/credit card for purchases uncharacteristic to the vulnerable adult
• Large even sums withdrawn from the vulnerable adult’s accounts
• Removing all forms of communication between the vulnerable adult and others
• Firing of caregivers
• Change in doctors
• Significant financial changes with no advice from the attorney or financial advisor

Red Flags – personal/emotional abuse:
• Poor personal hygiene
• Withdrawal
• Loneliness
• Depression
• Paranoia
• Confusion or disorientation
• Loss of weight/dehydration
• Recent company by unfamiliar family or friend, wandering
• Memory loss of recent events/family

Who are mandated reporters under the statute?

A mandated reporter is a professional or professional’s delegate while engaged in:
1. Social services
2. Law enforcement
3. Education
4. The care of vulnerable adults
5. Any of the health related occupations referred to in Minn. Stat. section 214.01, subd. 2 including:
     • Board of examiners of nursing home administrators
     • Office of Unlicensed complementary and alternative health care practice
     • Board of medical practice
     • Board of nursing
     • Board of chiropractic examiners
     • Board of optometry
     • Board of physical therapy
     • Board of psychology
     • Board of social work
     • Board of marriage and family therapy
     • Office of mental health practice
     • Board of behavioral health and therapy
     • A person that performs the duties of the medical examiner or coroner
     • Board of dietetics and nutrition practice
     • Board of dentistry
     • Board of pharmacy
     • Board of podiatric medicine
     • Veterinary medicine
6. Any employee of a rehabilitation facility certified by the commissioner of jobs and training for vocational rehabilitation
7. Any employee or person providing services in a facility as defined in subdivision 6
8. A person that performs the duties of the medical examiner or coroner

Anyone can be a voluntary reporter. Note that attorneys, financial planners and Certified Public Accountants are not mandated reporters.

If you need to make a report the common entry point number for:
• Hennepin County is 612-348-8526
• Ramsey county is 651 266-4012

For the common entry points for other counties go to the Minnesota Board on Aging or call the Senior Linkage Line at 1-800-333-2433.

Social Security (Part 6 of 6)

By Kris L. Maser

Divorced Spouse Benefits:?
• The ex-spouse must have applied for benefits.?
• The spouse must be at least 62 for reduced benefits or 66 for full benefits.?
• The marriage lasted for 10 years or more.
• The person receiving the divorced-spouse benefit is currently not married.
• Also note that more than one ex-spouse can receive benefits on the same worker’s record.
• Benefits paid to one ex-spouse do not affect those paid to the worker, the current spouse or other ex-spouses.
• The worker will NOT be notified that the ex-spouse has applied for benefits.
• The divorced-spouse benefits stop upon remarriage.?

Social Security (Part 3 of 6)

By Kris L. Maser

So what will it take to restore solvency to the Social Security system?

The trust fund is still growing:
• The trust fund balance on 12/31/2009 was $2,540 trillion.
• The total income for the year 2010 was $781 billion.
• The total expenditures for 2010 were $712 billion.
• The net increase in the fund was $69 billion.
• The trust fund balance on 12/31/2010 was $2,609 trillion.

So the long term projection without reform: benefits will fall to 77% in the year 2036.

The following reform proposals are currently being studied:
• Increase the maximum earning subject to the Social Security tax.
• Raise the retirement age.
• Lower the benefits for future retirees.
• Reduce the cost of living adjustments for all retirees.

Social Security (Part 2 of 6)

By Kris L. Maser

Social Security offers annual inflation adjustments. Currently, the cost-of-living adjustment is 2.8%.

So, as a follow up to the example on my previous blog, if your monthly benefit is $2,000:
• In 10 years your monthly benefit will be $2,636.
• In 20 years your monthly benefit will be $3,474.
• And in 30 years your monthly benefit will be $4,580.

I pose the same question: Did you pay enough into the system while you were working to sustain this kind of benefit? Read my next blog for information on the reform proposals being studied.

Social Security (Part 1 of 6)

By Kris L. Maser

We as voters, baby boomers, elders and tax payers need to get a handle on not just what our benefits will be as we retire but also what effect the benefits are for the looming baby boomers going into retirement. When the social security system was originally established there were 40 workers for every retiree. Now there are 2 workers for every retired person.

No one was expected to live much beyond age 65 when social security was originally started. But our society is aging and living longer. Consider these statistics:
• If your monthly benefit is $2,000 today and you retire and live 10 more years you will receive a total of $304,236 in lifetime benefits.
• If you live 20 more years your total lifetime benefits paid will be $673,622.
• If you live 30 more years your total lifetime benefits will be $1,160,479.

Do you think you paid that much into the system while you were working?

What is Life Care Planning? (Part 2 of 2)

by Joyce Konczyk

A Life Care Plan answers three questions:
1. How do you access all benefits available to you and understand which coverage or benefits pay for which service?
2. How do you protect the maximum resources and income so that expensive long-term care costs do not consume lifetime savings, thereby preserving assets for your spouse and/or children?
3. How does a person with a chronic illness access and pay for good long-term care?

What is the Process?
• Set goals through a comprehensive assessment of home, caregiver, estate, benefits, care needs and financial situation
• Analyze financial and health care information to help with crucial decision-making
• Apply funds to help maintain independence and choice
• Provide ongoing advocacy and monitoring to maximize well being, dignity and quality of life

Who Benefits from a Life Care Plan?
ELDERS maintain control as long as possible
CAREGIVERS secure quality care
FAMILY is supported and has peace of mind knowing that a professional advocate is only a phone call away

Maser Amundson, P.A., is the first and only (at this time) law firm in Minnesota to offer this comprehensive planning process to their clients and families.

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