May is National Elder Law Month – What Can an Elder Law Attorney Do For You?

05.26.2023 Written by: Rachell L. Henning

May is National Elder Law Month. Elder law attorneys are distinct from estate planning attorneys. While they may offer similar services, elder law attorneys bring additional knowledge to the table that benefits elderly and disabled individuals and their families.

Elder law attorneys can provide many different types of services such as assisting in the setup of long-term care and Medicaid planning, Medicare appeals, long-term care contract reviews, special needs planning, and more. By working with families and providers in the elder law field daily, we develop connections and resources that help our clients navigate the challenging elder care system more effectively.

Our elder law attorneys bring peace and predictability to families of aging loved ones or loved ones with disabilities. We offer emergency services that meet the client and their family where they are and help them connect with resources to ensure their needs are met. Our services range from helping get conservatorships and guardianships to working with family members, care facilities, and the county to obtain assistance with paying for care costs. Our elder law attorneys provide a wide array of services that help take the stress off of families during some of the most challenging times.

Henningson & Snoxell has elder law attorneys who are able to help you and your loved ones navigate this complex area. Call or email us today to get in contact with one of our knowledgeable elder law attorneys.

Honoring Rights and Fulfilling Responsibilities of a Guardianship/Conservatorship

05.23.2023 Written by: David T. Estle

When a loved one starts to experience difficulty in taking care of himself or herself—whether due to disability or aging—there are often concerns about having the legal authority to act for the person who needs additional assistance in his or her support, finances, or otherwise. Anticipating these issues is the main feature of incapacity planning. If there has been no advanced planning in the case of incapacity, or even if the person named in the incapacity documents needs more legal authority to help effectively, there is a court process to assist people with greater needs by putting them under a guardianship or conservatorship. However, being under a guardianship or conservatorship does not mean a person has lost control over his or her own life. Continue reading our blog to learn more about the responsibilities of guardianships and conservatorships.

People subject to guardianship or conservatorship (sometimes called “wards” or “protected persons,” respectively) are granted a list of rights under Minnesota law. These rights—including the rights to participate in their own healthcare decisions, to personal privacy, to have an attorney at any proceeding, and to generally still have control over their own lives—are guaranteed by the court. While the court ultimately enforces and protects these rights of the person subject to guardianship/conservatorship, as a practical matter, all stakeholders in the guardianship/conservatorship should know about the rights which they must respect.

Guardians or conservators of a person subject to a guardianship/conservatorship must additionally know about the duties associated with their role. Guardians have a duty to look after the person of the ward. They must provide for the person’s health and safety, ensuring that a person subject to guardianship has adequate food and shelter. Personal property is also under the purview of a guardian, requiring a guardian to take reasonable care of personal items, but even allowing the sale and removal of those items, as long as the person subject to guardianship is given notice and a chance to object. Being the overseer of personal well-being also carries with it the power to consent to or decline most medical care. Overall, the guardian must act in the best interest of the person. When guardians want help in determining the best interest of the person they are caring for, they can always seek the approval of the court for the chosen course of action.

Conservators have the responsibility to look after the protected person’s estate, or assets. Their responsibilities include paying for (and keeping detailed records of those expenses) the person’s support and financial maintenance. A conservator is tasked with paying the bills, writing checks, and maintaining financial accounts, all on behalf of the person subject to conservatorship and with that person’s assets. Necessarily, the court must oversee the conservator’s actions with an auditor’s eye view, requiring a yearly accounting of the assets, income, and expenses. Conservators use an online program to make these annual reports. The conservator needs to be comfortable with handling financial matters, including real estate. The conservator serves in the protected person’s best interest, but with regard to the kinds of needs, services, and purchases that need to be made for the benefit of the protected person. Where a person subject to guardianship has only income and no financial assets, the guardian collects income and pays the bills instead of having an appointed conservator.

The combination of respecting rights while fulfilling responsibilities can make for a difficult job. But guardians and conservators are often willing to go above and beyond for their loved ones who need their help. This does not mean that there is no conflict, or that the guardian or conservator will always get it right. The appointed guardian or conservator is often a spouse, child, sibling, or other close family relative. Indeed, the guardian and conservator can end up being the same person in many instances. Guardians and conservators straddle a line between deeply caring for the person subject to guardianship/conservatorship and having new legal responsibilities to help that person.

Guardianships and conservatorships add a new dimension to already complex familial relationships. Although the guardian or conservator may have been previously tapped for that role in an incapacity planning document, there are suddenly more responsibilities and accompanying duties. Even where the person subject to guardianship or conservatorship completely trusts and loves the person who is now guardian or conservator, the situation now requires interacting with that loved one in a court-monitored process that is regimented and particular.

Take, for example, a daughter who becomes the court-appointed guardian and conservator of her father. The daughter is an accountant, understanding all of her responsibilities with the capability to fulfill her role as conservator ably. When the daughter decides to approach her father about decluttering and organizing the house because she thinks it is unsafe as is, her father objects, claiming that he wants to keep all of his personal effects. The father is unhappy because he feels his desire to keep his house the way he wants is being questioned. The daughter is worried because she knows she has a legal duty to be proactive in protecting her father’s safety and well-being. She also needs to ensure that disposing of whatever property is sold is favorable to the estate.

The father has a right to be notified of his property being disposed of; the daughter must inform her father of her decision by mailing a written notice to her father listing the property that she intends to get rid of. The father may object within ten days of the postmark date and then demand court review of the daughter’s plans to remove his property. The objection must be officially served on the daughter. If her father objects, the court will have to calendar a hearing date to consider the daughter’s plan and whether it is in the best interest of her father. What started as a disagreement has become a legal quagmire.

The father understandably does not want to lose control over his life. The daughter loves her father dearly, but feels she is being more than reasonable in wanting to get rid of items she sees no value in and could create a safety issue for her father. There is a push-and-pull between the rights of the person subject to guardianship/conservatorship and the responsibilities of the guardian/conservator. Are these two headed to the courthouse all because of a difference in opinion about the father’s clutter? How much more difficult would it be if the daughter was not a financial professional with career experience and knowledge in these topics?

The possibility for these types of conflicts is real and anxiety-producing. Seeking representation from elder law attorneys can help you navigate, and even anticipate these scenarios in guardianships and conservatorships, potentially resolving disagreements before they get to the expense and publicity of a courtroom. Our attorneys can help you if you are under guardianship and/or conservatorship, advocating for your rights. We also set up guardianships and conservatorships for those seeking to take care of their family member or loved one, assisting proposed guardians or conservators in accepting their roles with the courts, and then advising the court-appointed guardians and conservators on how best to fulfill their obligations.

Come see an elder law attorney at Henningson & Snoxell to discuss your guardianship/conservatorship matter. Contact us to see how we can provide valuable representation that aims to achieve your best outcome.

FRONTLINE WORKER PAYMENTS: Immediate Impact on Employers

06.07.2022 Written by: Henningson & Snoxell, Ltd.

To thank those Minnesotans who worked on the frontlines during the COVID-19 peacetime emergency, Gov. Tim Walz signed Frontline Worker Payments into law April 29, 2022, enabling those workers to apply for Frontline Worker Pay. If you employed these workers, please pay close attention to the information below as it requires your immediate action.

Do your business or non-profit organizations fall under any of the following sectors?

Long-term care and home care
Health care
Emergency responders
Public health, social service, and regulatory service
Courts and corrections
Childcare
Schools, including charter schools, state schools, and higher education
Food service
Retail
Temporary shelters and hotels
Building services
Public transit
Ground and air transportation services
Manufacturing
Vocational rehabilitation

If so, you have a maximum of 15 days once the application period opens to provide notice in a form approved by the Commissioner of Minnesota’s Department of Labor and Industry. This application period opens on June 8^th. The notice must tell all current workers who may be eligible for payments under this law about such payments and how to apply for them. A notice that meets this obligation has been posted at frontlinepay.mn.gov.

Note that this notice must be provided using the same means that you use to provide other work-related notices to employees. Additionally, the notice must be at least as conspicuous as posting a copy of the notice at each work site where workers work and where the notice may be readily observed and reviewed by all workers working at the site or providing a paper or electronic copy of the notice to all workers. In other words, it should either be visible to all workers or provided to each worker individually via email or paper copy,

If your employees have questions regarding the application process, direct them to frontlinepay.mn.gov.

If you are a current client of the firm, give us a call at 763-560-5700 if you have questions on any of the above information.

If you are new to the firm and have questions you would like us to address, please reach out to any of our business or nonprofit law attorneys.

Dementia & Guns: A Deadly Combination

01.12.2022 Written by: Henningson & Snoxell, Ltd.

There is a side to gun ownership that is not often discussed: what happens when a gun owner is no longer capable of safely owning or using his or her guns?

It is tragic when an individual with dementia ends up shooting a loved one.

Individuals who develop dementia frequently experience hallucinations or have times where they do not recognize the people around them. This can be especially problematic if the individual has access to guns. The individual may incorrectly believe someone they know is a stranger and that he or she needs to defend themselves. It is tragic when such an individual ends up shooting a loved one. In West Virginia, a grandfather with dementia thought he saw intruders entering his home, so he grabbed his Glock that he kept under his pillow and shot his wife and granddaughter. The granddaughter was able to call for help, but the grandmother did not survive.

Unfortunately, this can and does happen not only in other states but also right here in Minnesota. For families of loved ones with dementia, we commonly grapple with the question of when to take the car away. Families should also discuss when the guns should be removed from the home or stored in a secure location for safety purposes. This is a difficult conversation and the loved one may be in the denial stage of dementia. In situations like this, families may need to involve the courts to initiate a proceeding to have the individual’s guns confiscated.

Decide what to do with your firearms.

To prevent court intervention, families should engage in the conversations early on in an individual’s diagnosis so that the individual can be involved in deciding what to do with the firearms, to whom the firearms should go after they pass, or whether to voluntarily give them up. For caretakers and family members, it is best to get this plan in writing and signed by the person when there is a voluntary relinquishment of the firearms. This will be helpful in the future should the individual forget about the arrangement and make accusations that someone stole the guns.

Families may be forced to deal with this situation before they can bring caregivers or home health into the home. Such agencies have policies that require that any firearms or weapons in the home be removed before their employees can come to the home. By having a plan in place and removing the guns before there is a need for home health care or in-home assistance, families can avoid additional stress.

If your family has a loved one who has been diagnosed with dementia, be sure to speak with physicians, elder law attorneys, or care coordinators to help you understand the ins and outs of what is to come.

Our elder law concierge service at Henningson & Snoxell provides family with a personal touch to help navigate the chaos that comes with a loved one with a dementia diagnosis. Please reach out to see how we can help you and your family through this challenging time.

Rachell Henning is an Elder Law attorney that brings a wealth of personal and professional experience to her practice. From an early age, Rachell has been dedicated to assisting elderly individuals and individuals with disabilities to live their lives to the fullest.

Elder Law, Estate Planning, Family Law, Rachell Henning

January 12, 2022

Estate Planning For Snowbirds

12.03.2021 Written by: Henningson & Snoxell, Ltd.

It’s that time of the year when Minnesotans head south for the winter to enjoy the warmer climate in states such as Florida, Arizona, and Texas. If you are one of these lucky people, while you may not be establishing residency in these states, it is still essential to have a proper estate plan in place if something happens while you are on your extended vacation.

If you have a Will, Trust, Power of Attorney, and/or Health Care Directive in place, reviewing those documents before heading south for the winter is a good idea to make sure your plans and wishes are current. If you do not have an estate plan, getting something set up, even if it’s just incapacity documents, is better than having nothing expressing your decisions.

It’s important to remember that even though you may be living in another state for months at a time, you would still be considered a Minnesota resident. Therefore, your estate plan documents should reflect Minnesota law. However, your estate plan should also consider assets and regulations in the state you are wintering in, as that state’s laws may dictate what would happen if you become incapacitated or deceased.

First step: Ensure Incapacity Documents

First, you should ensure that your incapacity documents are up to date. Incapacity documents include Health Care Directives and Powers of Attorney. It’s essential to have a Health Care Directive that is general in nature, meaning it’s not applicable in only one state or with a specific wellness provider. Often health care providers will equip patients with a Health Care Directive, and while that Health Care Directive is helpful, it may not be accepted by another provider. For example, if you are in Florida for the winter and become incapacitated, your primary provider’s Health Care Directive on file in Minnesota may not be recognized at the Florida hospital you are being helped at. A properly executed Health Care Directive should be applicable in states outside of Minnesota and with nearly any medical provider.

Power of Attorney is another vital document to have in place. Minnesota has a statutory power of attorney document that can be utilized anywhere in Minnesota (financial institutions, real estate transactions, etc.). However, if situations arise where the attorney-in-fact (your designated agent) attempts to deal with a financial institution, real estate company, or government agency in another state, in that situation, the Power of Attorney based in Minnesota may not be accepted since it is specific to Minnesota law.

Therefore, it’s also crucial to have a Common Law Power of Attorney that is more general in nature. For instance, if you own real estate or have bank accounts in another state, the Common Law Power of Attorney should be effective in recognizing your attorney-in-fact to handle any transactions in that state where you are temporarily living.

Next step: Ensure Will/Trust

Lastly, you should always have a Will and/or Trust in place regardless of where you are residing. These documents will ensure that your assets will be distributed per your desires upon death rather than be subject to that state’s laws. You also want to make sure and nominate a Personal Representative/Executor who would be in charge of administering your estate. Possessing a Trust could prevent the need for a conservatorship during your life and probate upon your passing.

Whether your assets would be subject to probate would depend on which state they were owned in and the value of those assets; a trust could prevent that regardless of the location and value.

So while it may not be exciting to review or create your estate plan before leaving for the warmer climate, it is crucial to have documents in place so your loved ones can handle any issues that may arise due to any unforeseen event. Therefore, I would encourage you to ensure that everything is in place by contacting an attorney before heading south this winter.

Final step: Talk to an Estate Planning Attorney

Be sure to discuss with your attorney your Incapacity Documents along with your Will and Trust. Without having a Health Care Directive and/or Power of Attorney in place, your family could be left with a lengthy and costly court proceeding to get your affairs in order. These documents allow YOU to decide who you want to handle your medical and financial decisions, not the court.

Adam Kaufman is an attorney at the firm of Henningson & Snoxell, Ltd. located in Maple Grove, Minnesota. Adam helps individuals and families of all sizes and asset levels, by advising them and preparing: Wills Trusts Health care directives; and Powers of attorney.

Adam Kaufman, Estate Planning

What are Transfer on Death Deeds (TODDs)?

08.03.2021 Written by: Henningson & Snoxell, Ltd.

The adage, “if it’s too good to be true, it probably is” often applies to Transfer on Death Deeds (TODDs).

A TODD is a deed that beneficiary designates a property to someone upon the owner’s death. To be valid, a TODD must be signed/dated/notarized and recorded with the county recorder prior to the owner’s death. Because a TODD doesn’t convey title to the property until the owner dies, the owner continues to own the property and can sell, gift, mortgage, and otherwise “enjoy” all aspects of property ownership without involving the beneficiary. Assuming the owner still owns the property at his or her death, the beneficiary clears the owner’s name from title using an Affidavit of Identity and Survivorship and a certified copy of the decedent’s death certificate.

Because the process to clear title from the decedent’s name is simple, expedient, inexpensive, and avoids the need for a probate proceeding, TODDs are used as estate planning tools.

What can go wrong?

The most common problem with a TODD is that the owner beneficiary designates more than one person as the beneficiary. If the owner has 4 children and names all 4 children as beneficiaries, title vests in the names of all 4 children at the owner’s death. This means all 4 children co-own the property and must work together to pay bills relating to the property and make other decisions about the property (e.g. whether the property should be sold or rented). When the time comes to convey title, all 4 children and their spouses must sign conveyancing documents.

If all 4 children are cooperative adults with sufficient assets to cover the expenses relating to the property until it can be liquidated or become income-producing, they can make this work, but if a child is a minor, is an incapacitated or uncooperative adult, is deceased at the owner’s death, is an adult on government benefits, or is an adult in the process of divorcing or bankruptcy, for example, it’s very difficult and expensive to deal with the property.

Another common issue with a TODD is that title and also the financial obligations secured by the property vest in the name of the beneficiary at the owner’s death. Most beneficiaries are happy to inherit the equity in a property, but they don’t want to inherit (and perhaps can’t afford) the financial obligations tied to the property!

For these, and other, reasons, a TODD is a tool in the estate planner’s toolbox, but it is only used when is appropriate, and then, upon good counsel.

If you are interested in a TODD, ask your Henningson & Snoxell, Ltd. estate planning attorney whether it is a good fit for your situation.

Susan T. Peterson-Lerdahl is a shareholder in the Maple Grove, Minnesota Law Firm of Henningson & Snoxell, Ltd. She is Chair of the firm’s Estate Planning Department and has years of experience counseling individuals and families in estate planning, elder law, probate and trust administration as well as family business succession planning.

Congratulations to our 2021 Super Lawyers!

07.21.2021 Written by: Henningson & Snoxell, Ltd.

Super Lawyers rates lawyers from more than 70 practice areas based on factors including independent research and peer nominations. Honorees have a high degree of professional achievement.

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Estate Planning & Probate Litigation

07.08.2021 Written by: Henningson & Snoxell, Ltd.

Estate proceedings are typically not litigated. Sometimes, however, where there is a need for court oversight, for court approval, or for resolution of a contested dispute, they are. Such litigation matters fall into one of two “camps” depending on the decedent’s estate plan and assets: 1) a contested probate administration, or 2) a contested trust administration. Sometimes both are necessary.

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When Estate Planning, Don’t Forget Incapacity Documents!

06.29.2021 Written by: Henningson & Snoxell, Ltd.

Most people associate “Estate Planning” with creating wills and trusts – in other words, planning for what happens after death. An oftentimes overlooked part of the estate planning process, however, is preparing for incapacity. Incapacity is the physical or mental inability to manage your affairs. As important as it is to plan for your estate upon death, it is equally important to plan for what would happen should you lose mental or physical capacity.

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This is why we do what we do! (a testimonial from a client)

06.02.2021 Written by: Henningson & Snoxell, Ltd.

We recently received a heartwarming letter from a client regarding her experience working with Elder Law Attorney Rachell Henning:

“I need to share with you my experience working with Lawyer Extraordinaire, Rachell Henning.

“I came upon your firm (recommended through one of my dementia list servs), and immediately wrote to you. Rachell Henning responded to that email the very next day, and I feel that I was being watched over from above, because there is no doubt in my mind that the perfect lawyer was give to me to help me through the emergencies of the past few months. She works tirelessly, and has been there for every single question I have had. Her quick responses are not something I’m used to!

“Rachell Henning has truly been a gift to our family. She has worked so hard to learn all the various aspects of my brother’s diagnosis, along with the multiple layers involved in getting him the care he needs. She was also extremely helpful in finding a person to serve as my brother’s emergency guardian.

“The amount of stress that I was feeling trying to do all of this care myself for over two years, has started to melt away, and I feel unbelievably lucky that the email came to me recommending your firm, and having Ms. Henning reach out to me. She has been everything, and more, that I ever hoped to have in a lawyer!”

As an associate at Henningson & Snoxell, Rachell Henning brings a wealth of personal and professional experience to her practice as an elder law attorney. From an early age, Rachell has been dedicated to assisting elderly individuals and individuals with disabilities to live their lives to the fullest. Read more about Rachell.

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May is National Elder Law Month – What Can an Elder Law Attorney Do For You?

Honoring Rights and Fulfilling Responsibilities of a Guardianship/Conservatorship

FRONTLINE WORKER PAYMENTS: Immediate Impact on Employers

Dementia & Guns: A Deadly Combination

It is tragic when an individual with dementia ends up shooting a loved one.

Decide what to do with your firearms.

Estate Planning For Snowbirds

First step: Ensure Incapacity Documents

Next step: Ensure Will/Trust

Final step: Talk to an Estate Planning Attorney

What are Transfer on Death Deeds (TODDs)?

What can go wrong?

Congratulations to our 2021 Super Lawyers!

Estate Planning & Probate Litigation

When Estate Planning, Don’t Forget Incapacity Documents!

This is why we do what we do! (a testimonial from a client)