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Tips to help older adults avoid traps and trouble

There are so many traps for unwary older adults. Can you give any tips to avoid future trouble?

Signed, Marvin


Yes I can! My answer will cover some of the most common traps that I see people fall into in my practice doing elder law at Legal Aid. Like any topic, however, there is a lot more that can come into play in a situation, so if you find yourself in these situations or others, don’t hesitate to seek further help.

Don’t sign anything until you understand it and agree with it

Once you sign a contract, you are generally bound to its terms, so don’t sign it until you know what it means and that you agree with all of its terms. This applies to any type of contract, from a lease for a car or apartment, a home purchase, a nursing home admission, a sales contract to buy a vacuum cleaner or other product, to credit cards and loans. Know what happens if you default on your end of the contract. Know your rights if the other side defaults on their end. If you don’t like it, negotiate to change the contract before you sign. If the contract can’t or won’t be changed, be prepared to walk away without signing.

Don’t be shy about taking a contract home to read it, or bringing it in to someone else for an opinion before you sign it.

If you are signing on behalf of someone under a Power of Attorney, make sure that you sign as the agent (also commonly known as “attorney-in-fact”), and not as yourself, so that you prevent yourself from becoming personally liable under the contract terms. One way to sign as an agent under a Power of Attorney is to sign, “[principal’s name], by his/her attorney-in-fact, [agent’s name].”

If at all possible, only the proposed resident should sign a nursing home admission contract.

There Is no 3-day cooling off period when buying a car, but there is for door-to-door sales

Once you buy a car, it’s yours. The seller has no obligation to take it back if you change your mind. Most contracts do not have a cooling off period. A cooling off period is a time period that is built into the laws in certain subjects (not many) to give people a chance to undo contracts. Car purchases do not have cooling off periods. In contrast, if a door-to-door salesperson came to your home and sells you a vacuum cleaner or other product, you have 3 days to change your mind and sign/return a termination of the contract.

Know your program’s eligibility guidelines

If you are enrolled in a needs-based program, be sure to keep your assets below the amount you are allowed to keep so that you remain eligible. For example, if you get Supplemental Security Income (SSI), be sure that the total of your countable assets is below $2,000 at all times (for a single person). If you go above your asset limit, be sure to immediately tell the government or whichever organization runs the program (make a telephone call but also follow-up with a letter to prove that you told them of the change). Letting the government know will avoid an overpayment to you.

Programs may also have an income limit— tell the government immediately if your income changes (goes up or down), so that your benefit can be adjusted. For example, if you are on subsidized housing, your rent will be adjusted if your income changes. If you fail to tell them that your income went up, you risk losing your housing. If you fail to tell them that your income went down, you’ll pay too much in rent. It’s in your interest to always report asset and income changes immediately.

Be aware of your right to appeal and don’t miss the deadline to appeal

With most government action, you have a right to appeal. Always read the notice of the action. Do not throw it away. Sometimes you don’t need to wait for a notice to appeal (you can appeal non-action). Don’t wait to ask questions and get help. Appeal within the deadline in order to preserve your appeal rights. Usually, an appeal period is 30 days, but there are many situations where the time to appeal is shorter, and/or there are times when you should appeal immediately after learning about the problem so that the status quo remains pending the appeal. For example, if you disagree with a nursing home termination of Medicare, immediately appeal to the Quality Review organization (the Medicare notice will have the procedure). If you applied for subsidized housing and are denied, you should appeal immediately.

Don’t give away money or add people to your deed until you understand how it will affect your ability to get help to pay for long-term care

Medical Assistance rules are always relevant to consider when you are planning your estate. If you give money to people (other than your spouse) or add people (other than your spouse) to a deed, you gave an “uncompensated transfer” (also known as a gift) because you did not get fair value in return for the money or the interest in the title. If you or your spouse applies for Medical Assistance within five years and one month (the month of application) of the uncompensated transfer, you and your spouse will be ineligible for Medical Assistance for a period of time, based on the value of the gift and the average cost of a month of nursing home care in Minnesota.

Technically, the size of the gifts doesn’t matter; the gifts will be added up during the five years prior to the application. Get advice from an attorney versed in Medical Assistance before gifting. It is always a gamble, but if your health is fairly good or you are a younger older person and/or you have enough assets to privately pay for long term care for five years, then the risk of needing Medical Assistance is less.

You can be evicted in the winter

Older tenants, pregnant tenants, disabled tenants—all tenants can be evicted in the winter. People confuse this with the Cold Weather Rule, which is about a landlord or utility companies’ ability to shut off utilities in the winter (October 15 to April 15).

That said, landlords (including assisted living facilities) have to follow Minnesota landlord tenant laws and provide proper notice when required and if someone fails to move, they have to file an eviction action in district court. There is no “self-help” eviction right for landlords in Minnesota, which means that a landlord can’t just show up at your door and kick you out. The landlord has to follow the proper eviction process, which ultimately requires court action if you don’t voluntarily move.

Don’t withhold rent in order to get the landlord to make repairs

If you fail to pay rent, the landlord can evict you for nonpayment of rent. Why put yourself on the defensive? The better way is to pay rent into court to force the landlord to make the repairs. It works like this: If your apartment needs repairs, document the needed repairs with photos, letters, and witnesses. If your area has a building inspector, consider having the inspector inspect the apartment and to make a work order for the landlord.

Ask for the repairs in writing, and keep a copy of the letter because you will use it in court later. If the repairs aren’t done, file either a rent escrow action or emergency tenant remedies action in court—in both types of action, the tenant pays rent to the court and the landlord doesn’t get the rent until the repairs are done.

Don’t suffer with debt collection

My clients often lose sleep when a collection company keeps calling. Certain types of income and assets are protected from collection, and often my clients do not have anything that can be collected. Also, a collection agency has to stop the harassing calls if it is told in writing to stop contacting you. If money was erroneously collected, we can often get it back.

Don’t get a home equity loan to pay off credit cards. Credit cards are unsecured loans. Home equity loans are secured by your home. If you fail to pay the credit cards, the only thing they can do to you is to sue you and you might not have income or assets that they can collect (e.g. homesteads are exempt from collection). If you fail to pay a home equity loan, you can lose your home via foreclosure.

This column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us with questions for legal help by writing to: Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: Reprints by permission only.

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