Contact the Minnesota Board on Aging Senior LinkAge Line®: A One Stop Shop for
Minnesota Seniors at 1-800-333-2433 for comprehensive, objective Long Term Care
Options Counseling. The Senior LinkAge Line® does not sell, endorse or market any
financial or insurance product.
The Minnesota Board on Aging and the Area Agencies on Aging provide the
statewide Senior LinkAge Line®: A One Stop Shop for Minnesota Seniors service.

Minnesota Board on Aging
Mailing Address:  Minnesota Board on Aging
P.O. Box 64976
St. Paul, MN 55164-0976
Site Location:  Elmer L. Andersen Human Services Building
540 Cedar Street
St. Paul, MN 55155
TTY Service: 

711

Phone: 

1-800-882-6262 or 651-431-2500

Fax: 651-431-7453
Email: mba@state.mn.us
Websites: www.mnaging.org
 www.minnesotahelp.info®

MBA-3012-ENG

 Who will make
decisions for you?

 

Planning for your long-term care may seem
like a daunting task, but it doesn’t have
to be! Secure your future by knowing your
options, planning wisely and taking action.

It’s your future.
Own it!

www.mn.gov/dhs/ownyourfuture

 e

The Minnesota Board on Aging and its Area Agencies on Aging
operate Senior LinkAge Line® which provides information
and assistance services for older persons. The number is
1-800-333-2433. This publication is the 2013 revision of
Planning Ahead originally published in 1994. It is produced
with funds made available under the Older Americans Act
and Centers for Medicare & Medicaid Services (CMS). Writing
and editing assistance has been provided by contracted Elder
Law attorneys. However, the information presented is general
information and not legal advice.
The services, facilities, and benefits of the Minnesota Board
on Aging are for the use of all older people regardless of race,
color, sex, religion, disability, or national origin.
Always consult a lawyer for legal advice when making these
important decisions.
If duplicating these materials, please acknowledge the
Minnesota Board on Aging as the source.
This document is available in alternative formats to individuals
with disabilities by calling 651-296-2770 or through the
Minnesota Relay Service at 1-800-627-3529 or 711.

 Table of Contents
I.  Introduction................................................................ 1–2
Who should plan ahead?............................................................. 1
What should the plan include?..................................................... 1
Why plan ahead?......................................................................... 2
When should you plan for incapacity?.......................................... 2
How can you plan ahead?........................................................... 2
Where do you keep the plan?...................................................... 2
II. Step 1: Organize, Organize, Organize....................... 3–5
Why organize?............................................................................. 3
Creating your own Planning Ahead document or notebook........... 3
Where to store your Planning Ahead document or notebook........ 5
III. Step 2: Plan for Long-Term Care............................ 5–10
Long-term care is expensive........................................................ 5
Payment sources for paying for long-term care...................... 6–10
IV. Step 3: P
  lan Ahead for Management
of Your Money and Property.................... 11–22
Informal arrangements with friends or family members.............. 11
Are there risks in relying on informal arrangements?.................. 11
Formal arrangements.......................................................... 12–15
Powers of attorney............................................................... 15–17
Trusts................................................................................. 18–21
Conservatorships....................................................................... 22
V. Step 4: P
  lan Ahead for Management of Your
Health Care and Living Situation............. 23–28
Informal arrangements.............................................................. 23
Family personal services contracts............................................ 23
Health Care Directive.......................................................... 24–27
DNR/DNI/DNH— Do Not Resuscitate/Do Not Intubate/
Do Not Hospitalize.......................................... 27
POLST—Physician Orders for Life-Sustaining Treatment............ 27
Guardianship............................................................................ 28

5

 Who will make decisions for you?
VI. Step 5:  Ensure Your Post-Death Wishes
Regarding Your Body Are Followed..............29
Organ, eye and tissue donation................................................. 29
Funeral planning....................................................................... 29
VII. Step 6: E
  nsure Your Post-Death Wishes
Regarding Your Property Are Followed.... 30–32
Definitions........................................................................... 30–31
Who may make a will?............................................................... 32
Should you make a will?............................................................ 32
How do you avoid probate?........................................................ 32
VIII. Step 7:  Getting Assistance with Planning
Ahead—Resources................................. 33–34
Own Your Future....................................................................... 33
Long Term Care Options Counseling through the
Senior LinkAge Line®: A One Stop Shop
for Minnesota Seniors................................................................ 33
Legal Assistance....................................................................... 33
www.MinnesotaHelp.info®......................................................... 34
www.LawHelpMN.org................................................................ 34

6

 I. Introduction
This booklet is about your future. It is about planning for the expected
(death at some point) and the unexpected—a day when you can no
longer manage your own affairs. Some of us may be diagnosed with a
chronic or debilitating illness and have time to plan. For others of us,
it may be a catastrophic injury or stroke and it may be too late to plan.
Some of us may not need help at all. For all of us, having a plan in place
will mean that we get to choose where we live, our caregivers, who
makes health care decisions for us, and who will handle our finances in
the event we need help. Having a plan in place gives our families peace
of mind, makes the job of caring for us much easier, and overall saves
money. Below is a blueprint from which your plan can be drawn—a plan
to allow you to live as independently as possible for as long as possible.
Who Should Plan Ahead?
Everyone should plan ahead! If you are older than 65, you have a higher
chance of needing long-term care than younger folks—and your life
expectancy decreases year by year and so the need for planning is
obvious. But the unexpected is a fact of life, so if you are 18 years of
age or older you should make decisions NOW before you need help and
while you can still communicate and make your own decisions.
What Should the Plan Include?
Your plan should contain some very basic planning documents—a
power of attorney, health care directive, and will—along with information
and arrangements specific to your situation. This is not a static plan,
but one that will evolve as you age or as your illness progresses. You will
want to plan for:
1. L  ong-term care. If you need help with ordinary tasks of daily living—
where will you receive the care, who will provide the care, and how
will you pay for it?
2. I ncapacity. If you lose the ability to manage your finances, take care
of your home, and direct your health care, who will step into your
shoes to take on those responsibilities?
3.  Death. You can ensure that your post-death wishes are followed by
giving clear directions for your funeral, the disposition of your body,
the donation of your organs, and who should receive your property.

1

 Who will make decisions for you?
Please note: The information in this publication should help you plan
ahead; it is not, however a substitution for personalized legal advice
from a knowledgeable lawyer. If you require legal or other expert
advice, you should seek the services of a competent lawyer or other
professional. For a referral to an attorney, contact the Senior LinkAge
Line® at 1-800-333-2433.
  hy Plan Ahead?
W
If you lose the ability to make or communicate decisions and you did not
plan ahead, a court may be asked to appoint a guardian or conservator
who will be given authority to make medical decisions for you, to decide
where you live, and to manage your property and income. Sometimes,
especially if your family is not in agreement, someone you don’t know will
be appointed. Legal fees will be paid from your resources, and it is often
quite expensive. If you do not plan for your death, your property may be
given to unintended heirs, or your funeral or a place of burial may not be
what you wanted. Putting your desires in writing minimizes the chances
of not having your wishes followed.
When Should You Plan for Incapacity?
NOW. You do not want to wait until something happens, because then it
could be too late. People who wait for a crisis to happen and don’t plan
ahead incur more cost because they often:
1. D
  on’t have time to understand and use their benefits correctly;
2. O
  nly have the most expensive options available to them and as a
result, spend their savings on solutions that are very costly;
3. H
  aven’t taken the time to become familiar with less expensive home
and community based options that can keep them in their home
living for as long as possible and as a result will run out of money
more quickly.
How Can You Plan Ahead?
Read this booklet and see if you can put some of the informal plans in
place, and see a lawyer to get your basic documents prepared.
Where Do You Keep the Plan?
You should put together a notebook, that can be known as your Planning
Ahead notebook, where important information and documents are kept.

2

 II.  Step 1 — Organize, Organize, Organize
  hy Organize?
W
You may know where all your accounts
and important papers are...but what if
you suddenly cannot communicate that
knowledge to your loved ones? It can take
weeks if not months for someone else to
find information necessary to manage
your affairs if you cannot. If you assemble
and maintain a planning notebook, family
and friends will be able to access the
information necessary to complete tasks
in an efficient manner. This chapter
provides an outline and brief explanation of all the essential information
to include in your Planning Ahead document or notebook.
Creating Your Own Planning Ahead Document or Notebook
1. P
  ersonal Data. To help family members and caregivers easily
locate basic information about you, it is a good idea to provide this
information at the beginning of the notebook or document you
create. This may include information such as your legal name,
nicknames, and prior names used; address of any residence, cabin,
or second home; telephone number (home, work, cell, etc.); date
and place of birth; social security number and Medicare number.
2.  Emergency Contacts. This section should include contact
information regarding your family members, including spouse,
partner, or significant other, children, siblings, and parents. You may
also want to consider listing the plumber, electrician, painter, yard
service person, handyman, etc., who you use on a regular basis.
It may be extremely helpful if work needs to be done on the house
while you are incapacitated.

3

3. M
  edical Providers and Medical History. This section should include
contact information for both your primary care and specialist
health care providers as well as important health information such
as medical history, medications, allergies, and significant family
history. Also include your health insurance plan name and policy/
plan number, including your employer or retiree coverage, individual
health insurance, Medicare supplement, Medicare Advantage Plan
and/or Medicare Prescription Drug Plan (Part D).

 Who will make decisions for you?
4. F
  inancial Records. This section should include an asset chart listing
all assets you own, the current value of each asset, the death benefit
(if any), the basis, and all beneficiary designations associated with
the asset. You should also include a statement from each account/
life insurance policy/annuity so that the account can be tracked
down. This section should also include contact information for your
financial advisor, insurance agent, accountant, etc. A copy of your
most recent tax statement should be included. You may also want to
include a section on recurring bills so that they may be continued/
discontinued as appropriate. If you find it daunting to gather this
information by yourself, you should ask your financial advisor to
assist you.
5. L  egal Documents. This section should include contact information
for your attorney(s), health care agents, attorneys-in-fact,
beneficiaries, trustees, and the personal representative nominated
in your will. You should also include a copy of your will, health care
directive, and power of attorney along with information regarding
where the originals are stored.
6. L  ocation and a Copy of Important Papers. What is important
depends upon your circumstances. These are a few documents
that are generally needed and should be included in your notebook:
birth certificate, military service records, deeds, insurance policies,
stock certificates, a spouse’s death certificate, marriage certificates,
social security cards, automobile titles, and divorce decrees.
7. U
  ser names and Passwords. If you have a computer and you do any
on-line banking or have a Facebook account, you need to list the
usernames and passwords.
8.  Funeral information. If you have prepaid your funeral or burial, the
information regarding that funeral should be in your notebook.

4

 Where To Store Your Planning Ahead Document or Notebook
Once you have compiled your Planning Ahead document or notebook,
it is imperative that all of this very personal information be safeguarded.
Perhaps it can be kept in a safe deposit box or on a flash drive and
given to the person most likely to take charge. Perhaps the emergency
contact portion of the document or notebook can be kept separate from
the entire document or notebook so that portion is easily accessible to
anyone who is helping out. You must make sure that this information is
protected, yet accessible to the people who will be assisting you.

III. Step 2 — Plan for Long-Term Care
  ong-term Care is Expensive
L
Often the diagnosis of a chronic illness is also a “financial” diagnosis.
Money saved to be spent on travel or grandchildren may have to be
spent on health and long-term care.
People living with chronic illness or who have experienced a catastrophic
event may require assistance with activities of daily living (ADLs) such
as bathing, transferring, walking, eating, toileting, and basic hygiene and
grooming. This type of assistance is known as custodial care or longterm care. Individuals may receive this care at home, or they may need
to move to an assisted living facility or a nursing home where they can
get more help. Whichever you choose—getting services in your home or
in a different setting—it is important to take the time to understand the
full cost of the services and the implications of the cost to you and your
family. People are often surprised at how much long-term care costs—
and that few government benefits pay for long-term care. Medicare
covers very little and it is only for a very short time (a maximum of 100
days) and only under certain medical circumstances. It is imperative
that part of your planning addresses how you will pay for long-term care.
It is very important that you understand the types of private medical
insurance and public insurance programs that are available to you to
help pay the cost of your long-term care. The state of Minnesota has
a website that can help learn about options. (go to http://mn.gov/dhs/
general-public/own-your-future/).

5

 Who will make decisions for you?
Payment Sources for Paying
for Long-Term Care
1. P
  rivate Health Insurance. Your private
health insurance may pay for some
nursing home and home health care,
but usually that is limited to skilled
nursing care. For instance, if you need
transitional care between the hospital
and home, your policy may pay for a
short period of time. As a general rule,
private health insurance does not pay
for custodial care, either in a nursing home or at home.
2. L  ong-term Care Insurance. Long-term care insurance policies are
privately sold insurance policies that cover the cost of long-term care
services not covered by Medicare, including custodial care. Services
covered can include adult day care, home health care, assisted
living, care management, and nursing home services. Minnesota
statutes regulate the sale of these policies and provide consumer
protection. The Minnesota Department of Commerce regulates all
long-term care insurance policies sold in Minnesota and ensures
consumer protections are in place.
The Minnesota Long-Term Care Partnership is an option available
in Minnesota since 2006. By purchasing a Partnership Certified
Long-Term Care Insurance policy, you can protect assets from
being included in determining Medical Assistance eligibility, if, at
a later date, you need to apply for Medical Assistance. Information
about the individual companies selling individual Long-Term Care
Partnership Qualified policies in Minnesota can be found at
www.MinnesotaHelp.info®.
3.  Medicare. Medicare is a federal health insurance program that
provides health care coverage to individuals eligible to receive Social
Security or Railroad Retirement benefits and those who have been
eligible for Social Security Disability Insurance benefits for two years.
Medicare covers very little long-term care. Medicare does not pay
for custodial, long-term care, but may pay for some skilled care if all
of the following criteria are met:

6

   Medicare Coverage for Nursing Home Care. Medicare pays
only for skilled nursing care in a skilled nursing facility. It
does not pay for custodial care. Medicare pays 100 days
per spell of illness (see below) as long as there is a three
day (three midnights) qualifying inpatient hospital stay and
you are admitted to a nursing home within 30 days of your
discharge from the hospital. IMPORTANT: Hospital days that
are considered “Observation” do not meet this requirement.
If you are admitted to a nursing home after an “Observation”
stay, with no qualifying inpatient hospital stay, Medicare will
not pay for your nursing home care even if you meet the other
requirements. If you have a qualifying inpatient hospital stay,
and meet other criteria, Medicare pays 100% for the first
20 days, and, for days 21-100, you pay a daily co-pay that
changes January 1 of each year. For the current amounts
contact the Senior LinkAge Line® at 1-800-333-2433 and
request a copy of Health Care Choices for Minnesotans on
Medicare. Medicare will pay for multiple spells of illness as
long as 60 days have passed since the last hospitalization or
nursing home stay, and there is a new three-night inpatient
hospital stay. Make sure that you:
•  Are admitted to the hospital for treatment, not observation;
•  Stay in the hospital for three midnights;
•  Are admitted to a nursing home within 30 days of a
qualifying inpatient hospitalization;
•  Receive daily skilled care nursing care and/or skilled
physical, speech-language or occupational therapy while in
the nursing home; and
•  Be aware of your appeal rights should your Medicare
coverage end before you receive your 100 days of
coverage and remain in the nursing home.

7

  edicare Coverage for Home Health Care. Medicare will
M
pay for care provided at home or in a housing with services
establishment if all of the following are met:
•  A doctor states that skilled medical care at home is needed
and a plan for home care is developed;
•  Skilled care or physical, speech-language, or occupational
therapy is required;

 Who will make decisions for you?
•  You are homebound, where
leaving home is very difficult
and requires considerable
effort; and
•  The home health agency is
Medicare-certified.
  Medicare Supplement or Medigap.
Medicare has significant out-ofpocket coinsurance, deductibles
and co-pays, so it is very important
that you purchase some sort of supplemental policy to pay for the
coinsurance and deductibles, if you can afford it. If Medicare is
paying for your nursing home stay, most supplemental insurance
will pay for the co-pays for days 21-100.
   Qualified Medicare Beneficiary (QMB), Service Limited
Medicare Beneficiary (SLMB); and Qualified Individuals
(QI). These three programs help you pay for your Medicare
premiums, co-pays, and deductibles. These programs have
modest income and asset limits that change on
July 1 of each year. To apply for these programs call
your local county social service agency or apply online at
www.applymn.dhs.mn.gov. You may also contact the Senior
LinkAge Line® at 1-800-333-2433 for help with applying. If
you enroll in one of these programs, you automatically qualify
for Extra Help with Medicare Prescription Drug Costs that
reduces your Medicare Part D premiums, coinsurance and
co-pays.
  o learn more about Medicare and your supplemental
T
insurance options, contact the Senior LinkAge Line® at
1-800-333-2433 or go to http://www.mnaging.net/en/hcc.aspx
to get the current issue of the Minnesota Board on Aging’s
Health Care Choices for Minnesotans on Medicare.

8

 9

4.  Veterans Benefits through the Veterans Administration. Eligibility for
veterans benefits can be complex and may depend on things like
whether or not the veteran served during a period of war, the veteran’s
age, whether or not there is a service connected disability, etc. If
you are a veteran, it would be wise to contact either the Veterans
Administration or your County Veterans Service Officer (CVSO) in the
particular county in which you reside to find out the benefits for which
you may qualify. Go to www.MinnesotaHelp.info® and do a search for
the County Veterans Service Officer for your county.
 Aid and Attendance. A monthly income benefit available to
veterans or to widows or widowers of veterans who require care
in a long-term care setting. Aid and Attendance benefits may
also be available to veterans who reside outside of a nursing
home but who require daily assistance to live independently.
This benefit is means-tested and is available only to veterans or
widows of veterans who have limited assets.
 Adult Day Care. The Veterans Administration administers an
adult day care program for all veterans. Veterans can either
pay the full cost or seek financial assistance based on need. If
the veteran has a service-connected disability, there is no cost.
 Veterans Directed Home and Community Based Services
(VD-HCBS). This is a program that provides veterans (not
spouses of veterans) of all ages the opportunity to receive
home and community-based services in a consumer-directed
fashion that enables them to avoid nursing home placement
and to continue to live in their homes and communities.
This program is offered as a special component to the
Administration on Community Living (ACL) Community Living
Program (CLP). The Administration on Community Living and
Veterans Administration (ACLVA) joint partnership combines
the expertise of the Administration on Community Living’s
national network of aging service providers with the resources
of the Veterans Administration to provide veterans and their
caregivers with more access, choices, and control over their
long-term care services. To be eligible, the veteran must be
receiving care through the Veterans Administration and have a
physician’s order that home care is necessary. Call the intake
line at 612-725-1994 to enroll or for more information. It is
not available statewide currently but is being considered for
statewide implementation as of the date of this publication.

 Who will make decisions for you?
  ayment of Nursing Home Costs. The Veterans Administration
P
has contract facilities all over the state of Minnesota and a
nursing home in St. Cloud. The more serious the serviceconnected disability, the more likely it is that the veteran can
have the cost of care paid by the Veterans Administration.
This is not a needs-based program; it is based completely
dependent on the veteran’s service connected disability.
5.  Minnesota Veterans Home (www.mvh.state.mn.us). The Minnesota
Veterans Homes have been established to provide health care
services to Minnesota veterans, spouses, and surviving spouses
who meet financial eligibility requirements and have a medical
need to live in a structured health care environment. The Minnesota
Veterans Homes offer two types of care: board and care and
nursing care. The Minnesota Veterans Homes Board of Directors is
responsible for oversight of the Minnesota Veterans Homes. These
facilities are located in Minneapolis, Silver Bay, Luverne, Fergus
Falls, and Hastings.
6.  Medical Assistance. Medicaid, called “Medical Assistance” (MA)
in Minnesota, is a joint program between the federal and state
governments. In Minnesota, the program is managed by the
Minnesota Department of Human Services. Medical Assistance will
pay for long-term care services both in the nursing home and in the
community for those who qualify. To qualify for Medical Assistancecovered long-term care services, you must be either elderly (65 or
older) or disabled or blind as determined under the Social Security
Administration rules. You must also meet strict limits for both assets
and income. If you qualify and are in a nursing home, Medical
Assistance will pay for all your health-related services, including
room and board. If you qualify and are living in the community, it
will cover such items as adult day care, respite care, homemaker
services, home health services, personal care attendant services,
case management, and other health-related services, but not
room and board. Individuals age 65 and older may be eligible for
more extended services at home through the Elderly Waiver and
Alternative Care programs. Medical Assistance is for persons who
have no other resources to help pay for long-term care services; it is
the program of last resort.

10

 IV. P
  lan Ahead for Management of
Your Money and Property
I nformal Arrangements with Friends or Family Members
There are informal ways in which a person can arrange to receive
assistance with finances and property management. Sometimes a person
may need only a minimal amount of help in order to live independently.
You may want to hire someone on a regular basis or a one-time basis. For
example, if you know someone you trust enough to confide in about your
finances, that person can help you do things like write the checks to pay
your bills (while you remain the person to sign the checks), file tax returns,
balance your accounts, and/or manage property.
You can even hire someone to come to your house once or twice a
month to help you. In this situation, you can still be the only person who
can sign your checks or withdraw money from your account. In other
words, you remain in charge of your own affairs but you have someone
helping you.
If the time comes, however, when you are not able to sign your checks
and so forth, more formal arrangements may be necessary. To protect
yourself, make sure the person who is helping you agrees to keep good
records and goes over them with you (and possibly another trusted
person) at regular intervals.
Sometimes people make more risky informal arrangements. They give a
loved one title to their house in exchange for a promise that the loved
one will help them and they can live there forever. Or, a son may put
his mother’s money in his bank account in order to pay her bills. While
this may work just fine for some people, it is generally not a good idea.
Never give your money or property to anyone as a tool to plan for
incapacity without first discussing the matter with your lawyer.
•  Are there risks in relying on informal arrangements? Yes. It is risky
to proceed without legal documents, because you may someday
lose the capacity to manage your own affairs. If you wait until you
have lost capacity, it is then too late to make your own arrangements.
You must have capacity to execute the legal documents that make
it possible for someone else to manage your financial and personal

11

 Who will make decisions for you?
needs if and when the time comes that you can’t do it yourself.
In these documents, you can name the persons you want to take
over, and also give guidance about how you want your financial
and personal affairs to be managed. Without legal or written
documentation, here are some of the risks you face:
 Your family and friends may not do or know what you want.
 An informal arrangement with one family member may not work
if other family members do not agree...and they think they know
what’s best for you!
 If you do become unable to handle your own affairs, you cannot
be sure about who will end up making decisions for you, or
what those decisions will be.
 It can be dangerous to give money or property to someone
else to use for you. If that person dies, gets divorced, or goes
bankrupt, you could lose your home or money to that person’s
heirs, spouse, or creditors.
 If you give away property, or sell it for less than it is worth, you
might be temporarily disqualified from Medical Assistance
(MA), the program that helps pay nursing home expenses when
you have no other resources.
Because of these and many other risks, it is a good idea to have a backup plan that includes one of the following more formal arrangement/legal
planning tools:
Formal Arrangements
Even if informal arrangements are working perfectly, the day may come
when you need more help or you lose your ability to make decisions or
direct your care. Or you may be the kind of person who does not want to
tell a friend or family member about your money matters. Or you simply
want more protection. You should read through this section to find the
planning tools that best fit your needs.
1. A
  utomatic Banking and Direct Deposit. Modern banking technology,
such as automatic bill payment and direct deposit, can help you
with your finances. At a minimum, your Social Security payments
and pension income should be directly deposited. You should also
arrange for your utilities and insurance payments to be withdrawn
automatically from your account. This can prevent your health

12

 insurance from being unintentionally discontinued or your electricity
from being shut off. It is wise to have one “working” bank account,
such as a checking account, into which income is deposited and
from which monthly bills are paid. To arrange for Social Security
checks to be deposited directly to a bank account, you may call
Social Security at 1-800-772-1213 and ask for a direct deposit
form or sign up on the Social Security Direct Deposit page online at
www.ssa.gov/deposit. A bank can also provide you with this form.
Beginning in 2013, all Social Security recipients are required to
have checks directly deposited, unless a recipient qualifies for a
waiver.
2.  Multiple-Name Bank Accounts. Adding a name to a bank account
is an easy and effective way to allow a trusted relative or friend to
provide informal help. By having access to the account, another
person can help sign checks, pay bills, or transfer money between
your accounts. This person can also have access to bank records
to monitor electronic deposits, ensure all bills are paid on time, and
review monthly statements to ensure that everything is accurate in
all your accounts. Several types of multiple-name bank accounts are
available, each with different rules. Any type of account—for example,
savings, checking, certificates of deposit—may be held in more than
one name. Such accounts are easy to set up just by visiting the bank.
However, great care must be taken to select the appropriate type of
account (as explained next) for your situation and to ensure that you
have selected a trustworthy person to help you.
• J  oint Account. In a joint account, any person whose name is
on the account is considered a co-owner. Each named person
can make deposits and withdrawals without the other person’s
knowledge or consent. There are, obviously, a few facts about
joint accounts to keep in mind:
 The other person’s creditors could tie up your account
(with a lien or attachment) until you prove how much of
the account funds you contributed.
 You might not be able to take the other person’s name off
the account without that person’s written approval.

13

 Who will make decisions for you?
I n a joint account, when
one owner dies, the survivor
automatically owns the
account without having to go
through probate. However,
this can be a benefit in that
the funds are immediately
available to pay expenses
such as funeral costs that
need immediate attention.
You need to make sure,
though, that you want the other owner of the joint account
to have the funds at your death.
•  Agency Designation/convenience/power of attorney account. If
you are worried about some of the risks and consequences of
the joint account, an account with an agency designation, also
called a convenience account or power of attorney account,
may be a better choice. The agent can make deposits and
withdrawals and sign checks, but is not an owner of the
account. Therefore, that person’s creditors cannot tie up your
account. However, there is the risk, as with joint accounts, that
the other person could withdraw all your money. Unlike a joint
account, the account does not belong to the authorized signer
when you die; rather, funds in this account belong to your
estate. Thus, at the moment of your death, the account is frozen
until someone with legal authority can access the account.
3.  Naming a Representative Payee. A representative payee is an
individual or organization appointed by the United States Social
Security Administration, the United States Office of Personnel
Management, the United States Department of Veterans Affairs,
or the United States Railroad Retirement Board who may be
charged with receiving your income, using that income to pay
current expenses, saving for future needs, and maintaining proper
records. The Social Security Administration has a Representative
Payee Program with rules and regulations to protect the beneficiary
of the income. Learn more about the Representative Payee
Program at www.ssa.gov/payee. To have the authority to manage
your Social Security or Supplemental Security Income benefit, a
person or organization must be appointed by the Social Security

14

 Administration. A power of attorney or note from you is not good
enough. Having a representative appointed provides oversight
that may give you assurance that your bills and finances will be
properly handled. There are individuals and organizations you may
hire to serve as your representative payee. These individuals or
organizations are called “professional fiduciaries.” To find a listing
of professional fiduciaries who serve as representative payees go to
www.MinnesotaHelp.info®.

15

Powers of Attorney
A power of attorney is a written document that appoints someone
to handle your property or financial matters for you, in whatever way
you spell out. The person signing the power of attorney document is
called the principal, and the person named to handle the principal’s
property is called the attorney-in-fact. The attorney-in-fact does not
have to be a lawyer.
•  When you need a power of attorney. A power of attorney is used
when you want business taken care of for you and you cannot do it
yourself. For example, a power of attorney can be used to authorize
someone to handle a business transaction when you are out of town.
Or a power of attorney can be used to authorize someone to pay your
bills, manage your bank accounts, make sure you are getting your
income, etc., on an on-going basis if you are physically or mentally
incapable of taking care of these things.
•  The power of attorney should be durable. An ordinary power of
attorney ends when you (the principal) are no longer able to make
decisions for yourself. A durable power of attorney says that the
powers continue after you become incompetent. It is very important
that you make sure that the power of attorney document you sign
is durable so that it may be used when you no longer have capacity
and cannot manage your own affairs.
•  Choosing an attorney-in-fact. You should choose a very trustworthy
person who is good with numbers and is very responsible. Don’t
just automatically choose your eldest child! It is a huge responsibility
and very time-consuming. There are professionals who will serve as
attorney-in-fact.
•  The attorney-in-fact has whatever authority you give him or her. In
the power of attorney document, you can give authority to handle
all your property and financial matters, or you can limit it to certain
actions such as paying your bills or selling a piece of property. You

 Who will make decisions for you?
must be very careful whom you appoint and what powers you give
that person, because he or she will essentially be standing in your
shoes and will be able to transact business without your knowledge
or consent. While the attorney-in-fact is required by law to act in your
best interest, it is difficult to get money back if he or she has taken
your money or property or handled your affairs unwisely.
•  Creating a power of attorney. Any competent person 18 years of age
or older may create a power of attorney. It must be in writing and
signed in front of a notary public. There are two types of powers
of attorney and it is very important to meet with an attorney before
you execute a power of attorney to ensure that you have a power of
attorney that meets your needs.
•  The Minnesota statutory short form power of attorney. You can
create a power of attorney by completing a form known as the
statutory short-form power of attorney (SSF-POA). Using a SSF-POA
is recommended because it is a form recognized by banks and
financial institutions in Minnesota. If the statutory form is used and
it has been correctly executed, it must be honored when presented.
Thus, it is very useful for conducting day-to-day business and to sell
real estate. It is recommended that you have an attorney prepare
the SSF-POA for you. You can, however, purchase the form at a
stationary store that sells legal forms or download the form and
complete it yourself. NOTE: The Minnesota legislature amended the
Power of Attorney statute in 2013, and a new form will be required
as of January 1, 2014. Make sure that the form you use is dated
January 1, 2014 or later. If you use the incorrect form, or modify
the form in any way, a business or financial institution that does not
honor the power of attorney is not liable under the statute for failure
to do so.
You must be very careful if you decide to complete a form yourself.
While it might seem an easy thing to fill in a form, too many times
individuals sign documents they have printed off the internet only to
discover later that the documents are invalid or incorrectly executed or
cannot be used for the purpose intended. If you mark an “X” before
every power listed, you have given the attorney-in-fact complete
authority over your property, including legal permission to give all of
your property away, even to transfer your property to the attorney-infact himself or herself (with some limitations). Sometimes there are
valid legal reasons why a principal would want to give such broad
power over his or her property, but such power can also be misused.

16

 •  A common law power of attorney. A common law power of attorney
is a power of attorney that does not satisfy the requirements of the
SSF-POA. Often attorneys will draft common law powers of attorney
for individuals who require that their attorneys-in-fact have broader
powers for administration of their affairs than those available under
the SSF-POA.
•T
  he power of attorney in action. Your attorney-in-fact must present
an original power of attorney to the financial institution to show that
he or she has authority to act for you. Sometimes a copy is accepted,
but most often an original is required. A power of attorney works
only if it is accepted by the bank or creditor or entity with whom the
attorney-in-fact needs to do business. While you are not obligated
to use the SSF-POA (see above), if you do, any third party that is
obligated to deal with you (banks where you have accounts, people
who owe you money, etc.) must accept your power of attorney and
deal with your attorney-in-fact.
•  Safeguards to protect you. While a power of attorney is an excellent
planning tool, it has its risks. It has been called a license to steal.
While every person’s needs and circumstances are different, you
may want to consider writing safeguards into the power of attorney
to make sure that your finances will be handled the way you intend.
These are some of the safeguards you can consider:
 Require that the attorney-in-fact give an annual accounting
to you and to your lawyer or an independent accountant or a
trustworthy family member to review.
 Name two attorneys-in-fact on the document and specify that
they must act jointly (both attorneys-in-fact must agree and
both sign checks, etc.).
 Require the attorney-in-fact to obtain a surety bond to cover
the value of your property if the attorney-in-fact mishandles
your funds.
 Make sure that the trustworthy person you pick to be your
attorney-in-fact is both willing and able (i.e., has time) to handle
the responsibility.
 Make sure you also name a successor to take over the
responsibility if the first attorney-in-fact dies or becomes incomp
etent or simply chooses not to act on your behalf.

17

 Who will make decisions for you?
  eginning on January 1, 2014, the new SSF-POA form will
B
include an “Important Notice to the Attorney-in-Fact” which the
attorney-in-fact must read and sign. The notice explains when
the attorney-in-fact may be held personally liable and that even
though an attorney-in-fact has no duty to act, any actions must
be made in good faith and in the best interest of the principal.
The “Important Notice to the Principal” clarifies that the attorneyin-fact does not have health care decision-making authority and
addresses revocation and termination of the power of attorney.
 The principal or any other person designated by the principal to
receive accountings is entitled to recover reasonable attorney’s
fees and costs if the court finds that the attorney-in-fact failed to
render an accounting after a duty to account arose.
 The limit on the amount the attorney-in-fact can gift to himself/
herself or others that he/she has a legal obligation to support is
now the same as the federal annual gift exclusion.
•  Ending the power of attorney. The power of attorney ends when the
principal dies. Also, you can cancel or revoke a power of attorney at
any time as long as you are competent. This is called a revocation of
power of attorney. You must put the revocation in writing and sign it
before a notary public. You must then send copies to the attorney-infact and to any person or institution with whom the attorney-in-fact has
done business on your behalf, for example, banks or other financial
institutions. If the principal becomes incompetent, the power can be
revoked only by a guardian or conservator, if one has been appointed
for the principal. Powers of attorney that are not durable end when and
if the principal becomes incompetent. If you give power of attorney
to your spouse, it ends if you begin proceedings for dissolution,
separation, or annulment.
Trusts
A trust is a legal arrangement in which a person or a financial institution,
called the trustee, holds legal title and manages assets for the beneficiary.
The person who creates the trust is called the grantor. An agreement,
called a trust instrument, between the grantor and the trustee explains the
trustee’s authority. For example, if you want to set up a trust for yourself
and you want to manage your property while you are able to do so, you
will be the grantor, the trustee, and the beneficiary. Upon your incapacity,
another person or a financial institution will take over the responsibility of

18

 trustee, and the terms of the trust instrument will state how your property
is to be managed.
Trusts are not for everyone. A living trust is generally not appropriate for
modest estates because the costs and disadvantages, including the time
and logistics involved in administering it, outweigh the benefits, and a
power of attorney is all that is needed. There are times, though, such as
when you have property in different states or you have disabled children,
that a trust is absolutely the correct choice. As with any planning tool, it
is important to review each option to determine what will work for you. In
other words, one size does not fit all.
•  Basic living trust. A trust is a living trust if it is created while you are
alive. A testamentary trust is created by your Last Will and Testament
and springs to life at your death. A living trust is generally used
to manage property during your lifetime and can be revocable or
irrevocable:
 A revocable trust means that, as long as you are competent,
you may change, revoke, or terminate the trust at any time
while you are alive. Most commonly, in a living trust you would
be both your own trustee and beneficiary. As such, your
Social Security number would be used when establishing
trust accounts or doing trust business. You would manage
your property as if the property were in your name. A trust
agreement would also include your directions should you
become incompetent or die. If you have a medical condition
that could result in your inability to manage your affairs, a
revocable living trust may be the right choice. A revocable living
trust is often used as a planning tool, because it allows a trustee
to manage your property for your benefit during your lifetime
and can also provide for distribution or ongoing management
after your incapacity or death. Once you die, the trust becomes
irrevocable.
 An irrevocable trust cannot be changed or terminated after it
has been established. It is a separate taxable entity, requiring
its own tax identification number. Tax considerations may
be a factor in deciding whether to make a trust revocable or
irrevocable, particularly when a substantial amount of property
is involved.

19

 Who will make decisions for you?
•  Choosing a trustee. A trustee has
as much, if not more, responsibility
as an attorney-in-fact in a power of
attorney. Great care must be taken
in choosing your trustee. In most
revocable living trusts, you would
serve as trustee as long as you
are able to do so. If you become
incapacitated, the “successor trustee”
would take over and be responsible
for management of all trust assets
during your life and for distribution of
these assets to the beneficiaries upon your death. Being a trustee is
a huge responsibility and should not be taken lightly. While a family
member or other individual could be named trustee if you are sure
that person is trustworthy and capable of acting in this capacity,
a fair amount of expertise is needed to handle the paperwork, tax
returns, and property management tasks that may be involved. In
most cities, professional trustees are available for hire, and many
banking institutions have trust departments. Going over options with
an attorney before naming a trustee is always wise.
•  Creating a living trust. A living trust is generally created by written
agreement. The grantor and trustee execute the trust agreement
setting forth how the property should be managed during the
grantor’s life and after the grantor’s death. Trusts should be drawn up
by an attorney.
•  A revocable trust cannot be used to avoid paying nursing home
costs. A revocable trust is considered an available resource under
Medical Assistance (MA) laws and is not a way to avoid spending
savings on nursing home care. The federal and state Medical
Assistance (MA) laws are very complicated and subject to change
at any time. Do not try to use a trust for this purpose without getting
competent legal advice.
•  Special trusts for persons with disabilities on Medical Assistance
(MA). MA rules are complex and vary depending (among other
things) on whether you are married or single, the types of services
you need, and your age. As a very general rule, however, you may
keep a car and your home (as long as you are living in it) and about
$3,000. Be aware that this amount varies. The point is, you can
have only limited assets outside of your home and car. There are

20

 three types of trusts that, if properly established
and administered, allow an individual with a
disability to retain more than $3,000 and
still be eligible for MA to pay for the cost
of care. These three trusts are a firstparty special needs trust, a supplemental
needs trust, and a pooled trust. The funds
in any of these three trusts may be used
to purchase goods and/or services that
benefit the individual and do not replace the
government benefits the individual receives.
For instance, funds may be used to pay for a
companion dog, nonconventional treatments, massage, companion
services, a home, rent, travel, or clothing. Funds may not be used to
pay for medical services covered by MA. Because you can have only
$3,000 to be eligible for MA to pay the cost of custodial care, having
a special needs trust can make a significant difference in your life.
Sometimes a special needs trust can make the difference between
living at home or in a nursing home.
 Special Needs Trust. The special needs trust is established for
the sole benefit of a person under the age of 65 who is disabled
as defined under the Social Security Act. The trust is set up
by the person’s parent, grandparent, court, or guardian and is
funded with only the assets of the disabled person. The trust
agreement must state that, at the death of the disabled person,
any remaining trust assets must be distributed first to the
state as repayment for any Medical Assistance received by the
disabled person. When these requirements are met, the assets
held in trust are not considered available to the disabled person
except to the extent they are distributed to the disabled person,
and the transfer of the disabled person’s assets into trust is not
penalized.
 Supplemental Needs Trust. A supplemental needs trust is
established for the benefit of a person who is disabled as
defined under the Social Security Act. The trust is set up by
anyone other than the disabled person, the person’s spouse,
or anyone obligated to pay any sum for damages or any other
purpose to or for the disabled person. The trust is funded with
assets of persons other than the disabled person. The assets
in the trust are not considered available to the disabled person

21

 Who will make decisions for you?
except to the extent they are distributed or unless or until the
disabled person goes into a nursing home after
age 64.
 Pooled Trust. A pooled trust is managed by a non-profit
corporation and is made up of individual accounts for individual
disabled persons of any age. Each account established for
the benefit of a disabled person holds only the assets of
the disabled person and is maintained for that person. The
trust account may be established by a parent, grandparent,
guardian, court, or by the disabled person. The trust must
provide that any assets remaining at the death of the disabled
person, to the extent that they are not held in trust for other
disabled persons, must be paid to the State for Medical
Assistance that the person received. When these requirements
are met, the assets held in trust are not considered available to
the disabled person.
Because of the complexity of these trusts, you are strongly
advised to seek the advice of attorneys who have experience in
this area.
Conservatorship
A conservatorship is a relationship between two people created by a
court to protect persons who cannot handle their own financial affairs
and have not made prior arrangements for that purpose. The court
appoints a conservator to help manage the finances, assets, and income
of the protected person, when the court finds that the person has
impairment in the ability to receive and evaluate information or make
decisions about such matters.
•  Establishing a Conservatorship. Anyone can petition (ask) the
court to appoint a conservator over a person who needs help. The
potential protected person must be given advance notice of the
hearing and has the right to be represented by an attorney at any
court proceeding, even if he or she cannot pay for the attorney. In
this case, the court will order the county to pay these costs. The
person requesting a conservatorship must prove through clear and
convincing evidence that such an order is necessary. This could
be difficult if the protected person does not want a conservatorship
established.

22

 •  Ending a Conservatorship. The conservatorship ends if the
protected person can show the court that there is no longer a
need for protection. Usually a doctor or social worker needs to
tell the court that the person can handle his or her own affairs.
Conservatorships also end if there are no assets to protect.
Sometimes conservatorships are established to sell a home and pay
for care out of the proceeds. Once the money is gone, there is no
need for the conservatorship and the court will dismiss the matter.
•  Avoiding Conservatorship Should Be a Priority. There are many
reasons to avoid a conservatorship: it takes away your right to make
decisions about your own finances and it is expensive. It may be
necessary if family members disagree about your plans for yourself,
and they begin fighting amongst each other as to how best to care
for you. Thus, the most effective way to avoid conservatorship is to
plan carefully and make sure your family knows exactly how you
want your finances managed.

V. P
  lan Ahead for Management of Your
Health Care and Living Situation
Informal Arrangements
There are informal ways in which a person can arrange to receive
assistance. For example, you can have meals delivered, medication
set-ups, a personal care attendant come in and help you with bathing,
cooking, or housecleaning; or someone to come over once a week to go
shopping and cook with you. These sorts of informal arrangements allow
you to get help and live independently while at the same time remain in
control of your decision-making. Sometimes children come and live with
parents or parents move in with children. There are countless ways that
families have come up with to care for people who are aging or living
with disabilities.
Family Personal Services Contracts
Parents (and children) don’t really like the idea of commercializing family
caregiving arrangements. The fact is, though, that 92% of all caregiving
is done by family members. Sometimes, caregivers must give up their
day jobs in order to provide the level of care that is needed, and they
have financial obligations of their own that must be met. This makes
personal care contracts an attractive option, both to make sure that the

23

 Who will make decisions for you?
level of care is met and that children (or
other relatives or friends) will not have to
sacrifice their own financial well-being
while providing care to their parents.
Personal care contracts must, as a general
rule, be in writing, signed, and notarized.
The contract should state the kind and
extent of services that are necessary,
on reasonable terms. Because personal
services contracts involve payment for
services, income paid to a family caregiver
pursuant to such a contract is subject
to payroll and income taxes. Tax credits aren’t available for parentcaregiving unless the parent is the child’s legal dependent. You should
not attempt to prepare a caregiver contract without the advice of an
attorney.
Health Care Directive
A health care directive (HCD) is a written document in which you name
someone to make decisions about your care. If you are the person
making the HCD, you are called the principal. The person you name
to make decisions is called the health care agent. In the HCD, you can
also write your wishes about organ, eye, and tissue donation; funeral
arrangements; end-of-life care; choice of providers; and where you want
to receive your care.
•   Why make a health care directive? As an adult, you have the right
to make decisions about your own health care. You have the right
to refuse treatment and to authorize treatment. You also have the
right to information about your health problems and the various
treatments. That right does not end when you are not able to make
decisions for yourself. By putting your health care wishes in writing,
you are giving your family and loved ones a gift: they will know
what your health care preferences are and whom you chose to
make decisions for you. And you are giving yourself a gift, the gift of
knowing that your wishes will be observed, even if you cannot state
them yourself at the time.
•  Is a health care directive the same as a living will? No. In 1998,
the Minnesota Legislature created the Health Care Directive which
takes the place of Living Wills and the Durable Powers of Attorney
for Health Care (DPOAHC). Prior to 1998, you had to have a Living

24

 Will in place to appoint someone to make decisions for you when you
were in a “terminal condition.” You also had to sign a DPOAHC so
that you could have an agent to make decisions for you, review your
medical records and discuss your condition with your doctor if you
were incompetent but not in a terminal condition. The health care
directive combines both the living will and the DPOAHC into one
document. If you have a living will and you prepared it before August
1, 1998, it is valid. If you prepared it after that date, you should have
a new Health Care Directive prepared.
•   What must a health care directive include?
 It must be in writing.
 It must be dated.
 It must state the name of the principal who must be competent
when he or she signs the document.
 It must be signed and witnessed by two people or signed before
a notary public.
 It must include either a health care power of attorney or health
care instructions.
•W
  ho can be a health care agent? A health care agent may be any
individual 18 years of age or older who is not the principal’s health
care provider or an employee of the health care provider on the
date the health care directive is signed or on the date the health
care agent must make a decision. It is wise to choose someone you
know very well and someone you trust to make decisions according
to your wishes. It is very important that you talk to this person about
being your health care agent before you appoint him or her. It is
also important that you name a successor health care agent in case
the first person you name is not able or willing to act on your behalf
when the decisions must be made. You must make sure that the
person(s) you want to appoint:
 Wants to be your health care agent;
 Understands your wishes; and
 Will follow your instructions and act in your best interests.

25

•  What may be included in the health care directive? An individual may:
 Appoint one or more agents or alternative agents and include
instructions as to how decisions should be made and whether
or not named agents must act jointly or may act independently;

 Who will make decisions for you?
  tate which nursing home the
S
principal would like to live in
the event nursing home care
is necessary;
 State which medical records
the health care agent should
be able to get and when;
 State that the health care
agent is the “personal
representative” under the
federal Health Insurance
Portability and Accountability Act (HIPAA) and has the authority
to have access to medical records;
 State whether the health care agent shall be guardian or
conservator in the event a petition is filed;
 State whether to donate eyes, tissues, or organs upon the death
of the principal;
 Make a declaration regarding intrusive mental health treatment
or a statement that the health care agent is authorized to give
consent for such treatment;
 State what will happen with the principal’s body at death (burial
or cremation);
 State instructions regarding how the principal would like her
pregnancy to affect health care decisions made on her behalf;
 Give instructions regarding artificially administered nutrition or
hydration;
 State under what circumstances the health care directive will
become effective; and
 State any other instructions regarding care including how
religious beliefs may affect health care delivery.
•   When do the health care agent’s responsibilities begin? Generally,
the health care agent may begin to make decisions for the principal
when, in the judgment of the principal’s attending physician, the
principal lacks decision-making capacity. However, the principal
may state in the health care directive that the health care agent has
authority to act even if the principal still has capacity.

26

 •   What are the duties of the health care agent? The health care agent
does not have a legal duty to act. That is one of the reasons it is
so important for you to talk with the person you have appointed, to
make sure that person will act on your behalf and will follow your
wishes. The health care agent has authority to make health care
decisions as though standing in the principal’s shoes. The health
care agent must carry out the health care directive in good faith. The
health care agent should ensure compliance with the health care
directive and seek legal help in the event the doctor or health care
provider will not comply with the health care directive.
•   Can the health care directive be cancelled or revoked? The principal
may cancel or revoke the health care directive in whole or in part by:
 Destroying the document;
 Directing another person to destroy it;
 Executing a written and dated statement stating what part of the
health care directive he or she wants revoked;
 Verbally expressing the intent to revoke it in the presence of two
witnesses who do not have to be present at the same time; or
 Executing a new health care directive.
•   Where should the health care directive be kept? The health care
directive should be kept with personal papers in a safe place. Do
not place it in a safety deposit box because you want it used in an
emergency! Give signed copies to doctors, family, close friends, the
health care agent, and the alternative health care agent. Make sure
the doctor is willing to follow the principal’s wishes. This document
should be part of the principal’s medical record at the physician’s
office, the hospital, the home care agency, hospice, or nursing facility
where care is received.

27

 DNR/DNI/DNH. The acronym DNR/DNI/DNH means “do not
resuscitate/do not intubate/do not hospitalize.” This is a request by a
patient to his or her physician to limit the scope of emergency medical
care. The request is signed by the patient or the patient’s proxy, and
it must be ordered by a physician. It will be followed by emergency
medical personnel if presented to them at the time of the emergency.
You should have a health care directive as well, because the DNR/DNI/
DNH is limited only to decisions regarding end of life and resuscitation
or intubation and does not deal with all the other myriad issues that
may arise at the end of one’s life.

 Who will make decisions for you?
  OLST—Physician Orders for Life-Sustaining Treatment. POLST is
P
a signed medical order that communicates the patient’s end-of-life
health care wishes to other health care providers during an emergency.
A POLST does not replace a Health Care Directive; it is a tool by which
providers can discuss end-of-life treatment options with patients who
have been diagnosed with serious illnesses. The form is generally
more specific than an advance directive, and, since it is signed by
a physician, it is a medical order. Like the DNR/DNI/DNH, you are
advised to have a health care directive and appoint an agent, even if
you have a POLST.
 Guardianship. A guardianship is a relationship between two people
created by the court to protect persons who cannot handle their own
personal affairs and for whom no prior arrangements have been made.
A guardian is appointed to look after the personal affairs of the ward,
when the court finds that the person is incapacitated. The guardian
will make personal decisions such as the type of medical care you get
and where you will live.
•  Establishing a Guardianship. Anyone can petition (ask) the court
to appoint a guardian over a person who needs help. The potential
ward must be given advance notice of the hearing and has the right
to be represented by an attorney at any court proceeding, even if he
or she cannot pay for the attorney. In this case, the court will order
the county to pay these costs. The person requesting a guardianship
must prove through clear and convincing evidence that such an
order is necessary. This could be difficult if the protected person
does not want a guardianship established.
•  Ending a Guardianship. The guardianship ends if the protected
person can show the court that there is no longer a need for
protection. Usually a doctor or social worker needs to tell the court
that the person can handle his or her own affairs.
•  Avoiding Guardianship Should Be a Priority. There are many reasons
to avoid a guardianship: it takes away your right to make decisions
about your own personal matters and it is expensive. It may be
necessary if family members disagree about your plans for yourself
and they begin fighting amongst each other as to how best to care
for you. Thus, the most effective way to avoid guardianship is to plan
carefully and make sure your family knows exactly how you want
your person and health to be managed.

28

 VI. E
  nsure Your Post-Death Wishes
Regarding Your Body are Followed
Organ, Eye and Tissue Donation
The Minnesota Uniform Anatomical Gift Act regulates the donation of
body or organs, tissues, or eyes for transplant or research. Unless you
state in writing that you do not want organ donation, your spouse or
health care agent or other relatives, in order of preference can make the
decision to donate your organs at the time of your death. You may make
your wishes with regard to organ donation known on your health care
directive, driver’s license or Minnesota ID, make a written statement, or
get on a donor registry.
•  The University of Minnesota Medical School Anatomy Bequest
Program has been developed to facilitate anatomical whole body
donations to support medical research and education for health
professionals. See www.bequest.umn.edu.
•  The Mayo Clinic Section of Anatomy has a body donation program.
See www.mayoclinic.org/body-donation.
•  University of North Dakota School of Medicine Dept of Anatomy has a
body donation program for Minnesotans in northwestern Minnesota.
See www.med.und.edu/anatomy/deeded-body-program.cfm.
•  University of South Dakota Sanford School of Medicine has a body
donation program for Minnesotans in southwestern Minnesota.
See www.usd.edu/medical-school/body-donor-program.cfm.
Funeral Planning
In Minnesota, you may name the person who you want to be in charge
of your funeral and what happens to your body after you die in a Health
Care Directive. If you want someone to plan and carry out your funeral
instructions, but you think that someone in your family will object to that
person or your wishes, you should fill out an Advance Funeral Directive.
A written, signed and dated funeral directive will give the person you
name the power to make the decisions, even if your spouse, children,
parents or siblings do not agree.

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 Who will make decisions for you?
VII.  Ensure Your PostDeath Wishes
Regarding Your
Property Are Followed
Definitions
You must understand the following
terms in order to decide how you want
to plan for post-death distribution of your
property, payment of your debts, and
providing for your loved-ones.
•  Last Will and Testament. A will is a document that directs the
ownership of an individual’s probate assets and personal property
after death. In a will, you can give instructions as to who should get
your property, how your debts should be paid, and you can appoint
someone to take care of your minor children. You will also appoint
a personal representative who will be in charge of carrying out your
wishes.
•  Probate assets. Those assets held in the decedent’s name that do
not pass automatically to another at death.
•  Probate. A court procedure to determine ownership of a decedent’s
probate assets. The purpose of the probate procedure is to
determine who is entitled to receive these assets. If there is no
will, the probate court will determine the heirs of the decedent and
distribute the assets according to state inheritance laws. If there is a
will, the court will validate the will and distribute the assets according
to the terms of the will.
•  Non-probate assets. Those assets that will automatically transfer to
another at death. If your assets are held jointly with another person,
or if all of your assets have a beneficiary or “transfer on death”
designation, then at your death there will be no need for probate. In
Minnesota, all assets, including your house, can have beneficiary
designations on them so that they pass automatically at death.

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 •  Beneficiary Designation. Most retirement plans, annuities and life
insurance policies let you decide who should receive your assets
at your death. Each financial institution will have forms for you to
complete. Beneficiary designations generally kick in immediately
after death and override a will. You need to ensure that your
beneficiary designations are up to date and correct!
•  Joint Tenancy with Rights of Survivorship (JTROS). This designation
provides that at the death of one of the owners, the surviving owners
own the property. So, for instance if you own your home with your
spouse in JTROS, then at the death of the first spouse, the survivor
is the sole owner of the home. If you own the property jointly but as
tenants in common instead of JTROS, then at the death of the first
spouse, the survivor only owns one half of the property. The half that
the deceased spouse owned will have to be probated to determine
ownership! So, make sure you own your property in JTROS!
•  Payable on Death Account. A payable on death account, also called
an “in trust for” account or a “totten trust,” allows you to name one
or more people to own your account automatically when you die,
without having to go through probate. But during your lifetime, the
named persons have no right to the account, their creditors cannot
tie up the account, and they cannot make withdrawals or sign
checks.
•  Transfer on Death Deed (TODD). A TODD allows you to transfer
your home or cabin or other real property to someone (the
beneficiary) upon your death without going to probate. Once you
die, the beneficiary will have to execute and record an Affidavit of
Survivorship at the County Recorder’s Office and obtain clearance
from the Minnesota Department of Human Services to determine
the amount of money the Medical Assistance program has paid on
your behalf, if any. Once that is done, the property will belong to the
beneficiary. You can name more than one beneficiary.
•  Affidavit for Collection of Personal Property. If the value of all probate
assets is under $50,000 and there is no real property, no probate
is necessary. The person presumptively entitled to the assets or the
Personal Representative named in your will may claim the assets by
using an Affidavit of Collection of Personal Property along with your
death certificate.

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 Who will make decisions for you?
Who May Make a Will?
Under Minnesota law, any person 18
years of age who is of sound mind may
make a will. The will must be in writing,
signed and witnessed by at least two
individuals. The witnesses and the person
making the will should make a statement
under oath that the will was signed by
the person of his or her own free will, and
that the person is over the age of 18 and
of sound mind and under no constraint
or undue influence.
Should You Make a Will?
Yes. Even if all of your property can pass automatically at your death,
you should have a will just to make sure your wishes are known in case
something unforeseen happens (like the company loses the beneficiary
designation or your named beneficiary predeceases you).
How Do You Avoid Probate?
Having a will or not having a will makes no difference as to whether an
estate goes through probate. The question is whether the decedent had
sufficient probate assets to make the probate process necessary. If the
probate assets are over $50,000, you will need a probate. If there is
real property of any value that does not have a joint owner or a Transfer
on Death Deed designation, your estate will have to be probated. You
avoid probate by making sure that all of your assets have beneficiary
designations or are jointly owned or you place all of your assets in a trust.
In Minnesota, avoiding probate should not be the sole goal of your estate
planning. Rather, protecting your heirs and ensuring your wishes are
followed should be your goal. Sometimes, avoiding probate can be more
expensive than going through probate! Talk to your lawyer about your
situation.

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 VIII.  Getting Assistance with Planning
Ahead—Resources
Own Your Future
Go to www.mn.gov/dhs/ownyourfuture to get details about planning
for meeting your long-term care needs. Own Your Future is a state
sponsored initiative to help Minnesotans plan for future long-term care
needs.
Long-Term Care Options Counseling through the Senior LinkAge Line®:
A One Stop Shop for Minnesota Seniors
Call 1-800-333-2433 to get linked with an expert that can help you learn
about and understand all of your long-term care options. Help is available
by phone, in person and by live chat at www.MinnesotaHelp.info®.
The Senior LinkAge Line® can also help connect you to legal assistance
for more complex legal planning issues. The assistance provided by
the Senior LinkAge Line® is comprehensive and unbiased. There is no
fee. The Senior LinkAge Line® does not sell any insurance or financial
product of any type.
Legal Assistance
Some of the planning tools discussed in this book can be handled
without legal advice. However, the law is complicated and laws change
frequently. To get the results you want, it may be a good idea to get legal
advice on your documents and plan. When looking for a lawyer, you may
want to ask a friend, relative, banker, or accountant to suggest someone.
You may want to interview more than one lawyer before making a
decision. Do not be afraid to ask about the cost. You can help your lawyer
help you by following a few guidelines:
•  Before you call a lawyer, gather and organize any written information
you may have, and make a list of questions you want to ask.
•  Ask for copies of all papers the attorney prepares for you.
•  Do not sign any documents until you fully understand what you
are signing.

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 Who will make decisions for you?
www.MinnesotaHelp.info®
A comprehensive resource database with thousands of Minnesota longterm care resources available throughout Minnesota. The Long-term
Care Choices Navigator is a long-term care support plan tool also found
at www.MinnesotaHelp.info®. Live Chat is also available on the site.
www.LawHelpMN.org
Assists with finding legal information in a variety of areas including
family, housing, seniors, work, immigration and consumer debt. This is
a web site of the Legal Services State Support, an association of seven
Minnesota regional legal service agencies.

The information presented is general
information and should not be
considered legal advice. For legal
advice, consult an attorney.
This publication is a 2013 revision of
Planning Ahead originally published in
1994. It is produced with funds made
available under the Older Americans
Act and Centers for Medicare &
Medicaid Services.
The services, facilities and benefits of
the Minnesota Board on Aging are for
the use of all older people regardless
of race, color, sex, religion, disability or
national origin.

If duplicating these materials, please
acknowledge the Minnesota Board on
Aging as the source.
Planning Ahead was produced with
the assistance of Laurie Hanson, an
attorney with Long, Reher, & Hanson,
P.A.
The Minnesota Board on Aging and
the Area Agencies on Aging provide
the statewide Senior LinkAge Line®: A
One Stop Shop for Minnesota Seniors.

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