Minnesota Attorney General's Office
1400 Bremer Tower
445 Minnesota Street
St. Paul, MN 55101
M - F 8 am - 5 pm
Seniors Legal Rights
Planning for Incapacity
At some point you may need help managing your finances or property. If so, it pays to have done some advance planning. Explained below are a few management tools you may use to help plan for incapacity. If you don't make advance arrangements it may be necessary for the courts to set up a guardianship or conservatorship for you.
You might not need a formal arrangement to receive help with your finances. A trusted family member may help write checks, file tax returns and help with other financial matters. If you have someone help you, make sure that person keeps good records and goes over them with you periodically. For your protection, you generally should not transfer money or property out of your name into the name of your helper without first consulting your lawyer. If you do not have a lawyer and wish to consult with one, you can call the Minnesota State Bar.
Be aware that property transfers can make you ineligible for Medical Assistance (the program that helps pay nursing home and other medical expenses). Transferring your property to another person may also mean that your money will no longer be available to you if that person dies, is divorced, or goes bankrupt. Talk to your lawyer about these possibilities as well.
You may want to set up a more formal arrangement for your finances. There are several ways to do this. You should choose the way that best addresses your needs and makes you the most comfortable.
Banks offer several alternatives that may fit your needs. You can set up a joint account, an "authorized signed" account, or a "payable on death" account. Talk to your lawyer or banker to see which of these might meet your needs.
You may wish to create a "durable power of attorney." This is written authorization for someone to manage your property or financial matters according to your directions. A durable power of attorney remains valid even if you should later become incompetent. Forms are available to create durable powers of attorney, but you should be very cautious in completing them the person you appoint could get authority to dispose of all your property, even by giving it to himself or herself. Talk to your lawyer about ways to protect yourself and your finances if you plan to use a durable power of attorney.
Guardianship and Conservatorship
Guardianship and conservatorship result from court proceedings where the court appoints someone to make decisions for you. This is done to protect you, if you become incapacitated and unable to make your own financial or personal decisions. Under Minnesota law, guardianship and conservatorship are very similar, but guardianship limits more of your civil rights, such as the right to vote. Because of this, conservatorship is usually favored over guardianship. The protected person in this relationship is called the "conservatee," and the person named by the court to make decisions is called the "conservator." Under guardianship, the protected person is the "ward," while the person named by the court is the "guardian."
If you should become incapacitated and have not previously planned for incapacity, a guardianship or conservatorship may be the only way to handle your personal affairs. Anyone can petition for or be appointed to be your guardian or conservator. A person may be appointed even against your wishes if the court determines such appointment is in your best interests. By planning ahead, however, you can have a say in this process and consequently protect your independence.
"Conservatorship planning" (also called "nomination of conservator") involves a written document, like a will, in which you name the person you want for your conservator. You can also include instructions on how you would want your personal and financial matters handled by your conservator. For example, the conservator could be instructed to manage your property, know where you would like to live, and be informed about your wishes regarding health care. (The same person could also serve as your health care power of attorney.) Then, if you should become incapacitated and need a conservator, the court must name the person you chose and order that your instructions be followed, unless the court finds that this would not be in your best interests. Be aware that the person you choose is not required to serve as your conservator so choose a reliable person and discuss your plan with the person in advance to make sure he or she agrees with it.
If you have other informal arrangements with relatives or formal planning arrangements such as a durable power of attorney, you may not need to do conservatorship planning. However, if it is likely that someone would challenge your planning arrangements (for example, if there might be disagreements within the family), you should use conservatorship planning as a "backup" to your other planning arrangements. Remember, anyone can petition to be a conservator or guardian for an incapacitated person, and a conservator or guardian can revoke or terminate prior planning arrangements. By naming the person you would want to be your conservator or guardian, you have the best possible protection against the appointment of someone you would not want to be your conservator.
Planning for Your Estate Wills
Wills are important documents that help ease the transition of ownership of an estate after a person's death. An estate consists of bank accounts, houses, land, furniture, automobiles, stocks, bonds, life insurance policies, retirement funds, pensions and death benefits.
Your will should ensure that your assets are distributed as you wish. And, you still have full use of your property while you are alive.
In Minnesota, you must be at least 18 years old and of sound mind to make a will. The will must be in writing and must be witnessed by at least two people, both of whom must also sign the will. You must intend for the document to operate as a will. The will must be signed by you, or by another person at your direction in your presence. Handwritten wills are recognized as valid in Minnesota only if the will is witnessed and signed by two people. Notarization by itself is insufficient to make a handwritten will legally binding.
Your will should clearly state who will get your property upon your death. Minnesota law provides that a spouse inherits a specified amount of property, even if she or he is left out of the will. You may, however, disinherit a child, if your will clearly states that you do not wish the child to get anything.
A personal representative (also known as an executor or administrator) should be named in the will. This person will be responsible for seeing that the property is distributed as you desire.
Wills can be changed by writing a new one, or by adding a "codicil," which is an addition to a will. Wills cannot be changed by simply crossing out language or writing in new provisions. Such alterations will not be effective. The codicil must be written, signed and witnessed the same way as the will, and should be attached to the will.
If a will specifically states that personal property should be distributed by a separate document, it is all right for a person to distribute most personal property in a handwritten statement. The statement can be written after the will is signed, and it can be changed without revising the will itself.
A will is effective until it is changed or revoked. It is a good idea to periodically review your will. Changes in your family, the value and kind of property, tax laws, or a move to another state may make changes in the will advisable.
You may revoke your will; however, revocation must be done in strict compliance with the law and the assistance of an attorney is highly recommended.
A surviving spouse who is not satisfied with his or her share in the will may elect to waive rights under the will and take his or her share according to state law. (A surviving spouse should seek legal counsel to do this.)
Your will should be kept in a safe place. The original will should be placed where it can easily be found after your death. In Minnesota, the Probate Court or Court Administrator's Office will accept wills for safekeeping at no charge or for a nominal fee. You have the right to get your will back at any time. Putting a will in a safe deposit box might make it inaccessible after your death until probate begins, unless you are survived by a person who jointly owns the box and would have access to the box after your death.
If you do not have a will, your estate will be distributed according to Minnesota's law of intestate succession. This law generally provides that, without a will, your estate will pass to your spouse, if still alive. If your spouse is not alive, your estate will pass to your children in equal shares. You should consult an attorney to determine exactly how your estate will be divided if you do not have a will.
A trust manages the distribution of your assets. A trust is created by the transfer of property by the owner, or "grantor," to another person, the "trustee." The trustee holds the title to the property and manages the property for the benefit of a third party, the "beneficiary." There are two general types of trusts. The "living" trust is created during the lifetime of the grantor when all or part of the grantor's property is transferred into the trust. The other type of trust is called a "testamentary" trust. In a testamentary trust, the property is transferred into the trust after the grantor dies.
There are potential drawbacks to a living will. For example, transferring property into a living trust can make you ineligible for Medical Assistance. Talk to your lawyer about that possibility. Also, if the grantor is also the trustee, the grantor has a fiduciary obligation to the beneficiaries for both present and future income. This, for many, may be the biggest drawback of a living trust.
There are also good reasons to consider a living trust. A living trust, unlike a will, enables you to have a trustee with financial expertise manage your assets during your lifetime. A living trust can allow for a smooth transition of property if you become incapacitated or incompetent. A living trust can also protect your privacy regarding the distribution of your assets.
With a will, the probate laws require that an inventory of the estate's assets is filed with the court. The inventory is public information. With a living trust, generally only the beneficiaries of the trust will be informed of the nature and the value of the assets. In cases where there is both a will and a living trust, this privacy may be lost.
A living trust is legal in Minnesota if properly written. It is important that a living trust be written to reflect the individual characteristics of each person's estate while complying with Minnesota law. How a particular trust is drawn up depends on the type of property being placed in the trust and the purposes for which the trust is formed. It is good to have your attorney evaluate the use and legality of a living trust in the context of your other estate planning documents and objectives.
If the living trust contains all your property, a will may be unnecessary and you can avoid probate. If the trust contains only part of your property, you need a will. If you want your property to go into the trust after your death, your will should include a "pour-over" provision to put the remaining property into the trust upon your death. Also, a will can be used to distribute personal belongings, identify guardians for your children, and provide for an executor to handle any unfinished business.
Minnesota does not have an inheritance tax. Federal law requires that an individual
with an estate totaling more than $600,000
file an estate tax return. If your estate is less than $600,000, there will not be any inheritance tax owed on your estate whether it transfers through the probate courts or in a trust.
Prepared forms or "kits" used to establish living trusts are currently marketed through magazines, brochures and door-to-door salespeople. Although the forms themselves may not be illegal, they may be too generic to suit you and your situation.
Planning a Funeral
Minnesota law and the federal Funeral Rule give you tools to control the cost of funerals. The Funeral Rule requires funeral directors to provide detailed, pre-purchase price information, including a General Price List of all services offered. Following the funeral arrangement, a detailed itemization, called the Statement of Funeral Goods and Services Selected, must be prepared.
Some things to keep in mind when planning a funeral:
- Your budget and true desires should guide your choice of arrangements
- You may wish to involve several members of your family, and perhaps an objective friend or clergy member when you make funeral arrangements.
Safeguards for Consumers
You may choose to make your own funeral arrangements, and set aside funds to pay for your funeral. One way to do this is to invest the needed amount of money, or put it in a bank account or insurance policy, making sure it will be accessible to family members upon your death. Another option is to prepay for funeral goods and services.
Unfortunately, money received from the advance sales of funeral goods and services is sometimes mishandled. To help safeguard prepaid funds, Minnesota law provides several protections. Under state law, a funeral director or cemetery operator must place all prepaid funds in a trust account in a bank or other financial institution until the need for a funeral arises. Minnesota law allows you to ask for and receive a full refund at any time before goods and services are provided.
There are also safeguards in the law to ensure that funds are available for the long-term upkeep of cemeteries and mausoleums. Cemetery owners must place in trust 20 percent of funds received from the sale of cemetery lots and ten percent of funds from the sale of mausoleum space. These "permanent care and improvement" trust accounts are to ensure the future care and maintenance of cemetery grounds and buildings.
To help safeguard prepayments for funeral goods and services, state law also requires
funeral directors and cemetery operators to give you the name of the financial institu
tion where your money is in trust, and the account number of that trust. The law requires annual reporting and record keeping for both "pre-need" and the "permanent care and improvement" trust funds:
- Licensed funeral directors must file an annual report disclosing the status of the pre-need trust fund with the State Commissioner of Health.
- Cemetery operators must file an annual report disclosing the status of the permanent care and improvement trust fund with their County Auditor.
Seniors Legal Rights
Age discrimination is against the law. The Minnesota Human Rights Act prohibits employers from using age as a basis for firing you, discriminating against you, or refusing to hire you, if you are over the age of 18. The Act also prohibits an employer from asking job applicants about their age or stating a preference with regard to age. Employers also may not interfere with your opportunity to acquire pension credits or benefits.
The Minnesota Human Rights Act also requires that all individuals over the age of 25 be given full access to educational institutions and the services that they provide. Educational institutions also may not ask your age, except under certain circumstances.
In addition to age discrimination, the Minnesota Human Rights Act prohibits discrimination based on race, color, creed, religion, national origin, sex, disability, and sexual orientation with respect to employment, real property, public accommodations, public services and education. It also prohibits discrimination because a person is receiving public assistance with respect to employment, real property, public services and education. The Act prohibits marital status discrimination with respect to employment, real property and education and it prohibits familial status (for example, the condition of living with one or more minors) discrimination with respect to real property.
If you believe that you have been the victim of discrimination, contact the Minnesota Department of Human Rights. If your claim is covered by the Human Rights Act, the department will help you file formal charges. Staff will then conduct an investigation. If the department finds that there is probable cause to believe that the Human Rights Act was violated, it will refer the case to the Attorney General's Office.
You may contact the Department of Human Rights in writing at: 190 East 5th Street, St. Paul, Minnesota 55101, or call (651) 296-5663 or 1-800-657-3704.
Protection Under the Law
Seniors Legal Rights
Crime Victims Rights
Diminished physical, financial, and mental capacities make seniors particularly vulnerable to crime. Minnesota's Victims Rights Act provides crime victims with the following rights. If you are a victim of a crime, you have the right to be notified of:
- Your rights as a victim.
- Plea bargain agreements.
- Where and when the defendant will be appearing in court, including any changes in court schedules, date, time and place of sentencing.
- Release of the offender from prison or other institution.
- Evidence indicating the presence of sexually transmitted diseases (if you are a victim of a sexual assault or the parent of a minor who is the victim of a sexual assault).
- And, if you are the victim of a domestic assault, you have the right to know what legal remedies are available including your rights to request the filing of a criminal complaint, your right to file for an order of protection, and to know of available shelters or other services.
You also have the right to participate in prosecution, including the right to:
- Tell the court about the impact of the crime.
- Have input in any pretrial diversion program.
- Object to a plea bargain.
- Request a speedy trial.
- Bring a supportive person to the pretrial hearing.
- Attend sentencing.
- Give written objections to the perpetrator's sentence.
- Request restitution.
- Request a review hearing if the defendant does not comply with the court's restitution order.
- Finally, you have the right to protection from harm:
- Tampering with a witness is against Minnesota law.
- You may request the police withhold your identity.
- You have the right to a secure waiting area during court.
- Employers may not discipline or dismiss you, or your witnesses, because you are called to testify in court.
- You have the right to pursue civil remedies.
- You have the right to address the Pardon Board and make a recommendation as to whether or not a pardon should be granted to the defendant.
The right to financial compensation means the Crime Victims Reparations Board may be able to reimburse you for out-of-pocket costs of counseling, medical care, transportation, child care, and other expenses which are directly related to the crime committed against you. The Reparations Board can only compensate those victims who have reported the crime to the police and who have cooperated fully in the apprehension and prosecution of an offender, where an offender has been identified.
There is an Office of Justice Programs to monitor compliance with victims' rights and to receive and investigate complaints from victims who believe that their rights have been violated or that they have been mistreated by people within the criminal justice system. If you have questions or need specific information regarding services available to seniors who are victims of criminal acts, call the Office of Justice Programs at (651) 201-7310 or 1-800-247-0390.
Minnesota law protects adults who are vulnerable to abuse, neglect and financial exploitation because of a physical or mental infirmity. The following people are required to report abuse: Any professional or employee of a nursing home, hospital, state licensed residential or nonresidential facility that serves adults; home care providers; and personal care assistants. A report must be made by a caregiver who believes that a vulnerable adult has been:
- Physically or sexually assaulted.
- Subjected to conduct which produces or could reasonably be expected to produce physical pain, injury or emotional distress.
- Subjected to improper sexual behavior.
- Forced, compelled, coerced or enticed against the person's will to perform services for the advantage of another.
- Denied necessary food, clothing, shelter, health care or supervision.
- Targeted for financial exploitation, including the unauthorized expenditure or use of the vulnerable adult's funds or property through undue influence, harassment, duress, deception or fraud.
Reports must be directed to the appropriate agency. Failure to make a required report is a misdemeanor. Failure to make a report which causes great bodily harm to a vulnerable adult, or even the death of a vulnerable adult, or protects the reporter's interest, is a gross misdemeanor.
When a report of suspected abuse, neglect or financial exploitation of a vulnerable adult is received by local law enforcement or the designated agency, the agency must decide within five days whether to investigate the alleged incident.
By knowing your rights as an older Minnesotan, you can help protect yourself and others from crime and abuse. If you have any questions, or need further information, contact your county social services office, the Office of Justice Programs, or the Senior Linkage.
Seniors Legal Rights
Assistance AvailableCold Weather Rule
The Minnesota Public Utilities Commission developed the Cold Weather Rule to protect you from having your heat source disconnected during the winter if you are unable to pay your utility bills. The rule is in effect from October 15 through April 15 and applies to utilities regulated by the state.
The Cold Weather Rule does not prohibit shut-offs but does provide three levels of protection: (1) Inability to Pay Status; (2) Ten Percent Plan; and, (3) Payment Schedule. In order to qualify for Inability to Pay Status or the Ten Percent Plan your annual income must not be more than 185 percent of the federal poverty level and you must be willing to follow a payment plan. To qualify for Inability to Pay Status your account must be current as of October 15 when the Cold Weather Rule season begins.
Any residential customer, regardless of income or account status, may qualify for a payment schedule. The Rule also provides a Reconnection Plan for those who meet the income guidelines and whose service remains disconnected on October 15.
For more information contact your local utility or call the Consumer Affairs Office
of the Minnesota Public Utilities Commission at (651) 296-0406 or 1-800-657-3782.
Disconnection of Utility Services
You cannot be disconnected from utility service unless you first receive a written notice. The notice must tell you the date it will occur, the reason, and the action you can take to avoid disconnection. The notice must be written in easy-to-understand language. Notice must be given at least five days prior to disconnection, excluding Sundays and legal holidays.
Your local telephone service cannot be shut off for failure to pay for long distance or "900" calls if you dispute those calls and if you pay the remainder of your bill on time. Your utility service cannot be shut off for failure to pay for non-utility service like inside wire insurance or appliance repair or protection plans. If you have questions regarding disconnection of utility services, contact the Consumer Affairs Office of the Minnesota Public Utilities Commission at (651) 296-7126 or 1-800-657-3782.
Energy Assistance Program
You may be able to receive help paying your winter utility bills through the Energy Assistance Program. This program considers income and family size when providing assistance with winter utility bills. One or two person households are given special consideration.
Applications for assistance are accepted between October 1 and April 15 of each year. You can mail in an application or have a home visit. If you are eligible for energy assistance you are automatically eligible for home weatherization assistance.
If you have questions or want to apply, contact your county social service agency.
Telephone Assistance Plan (TAP)
The Telephone Assistance Plan (TAP) is a state program that offers a discount on local phone service for low-income seniors and low-income disabled people. If you qualify, you could save up to $7.00 per month on your phone bill. If you meet certain income guidelines but are younger than 65 or are not disabled, you may still qualify for $5.25 per month of federal assistance. To apply, or find out if you qualify, contact your local telephone company or the Public Utilities Commission.
The Link-Up America program is designed to get Minnesotans without telephone service into the telephone network. The program deducts one-half of the local telephone service, connection and installation charges for eligible individuals.
If you have questions about this program, or would like an application, contact either your local telephone company, or the Minnesota Public Utilities Commission, (651) 296-0406 or 1-800-657-3782. The TTY number is (651) 297-1200.
Telephone Services to the Deaf
If you or someone you know has a hearing impairment, you may want to take advantage of Direct Connect Minnesota Relay Service. This service helps make calls between special TTY phones and standard phones. TTY callers can dial the relay service, give the requested information, and the operator will place the call. The operator will read the TTY-user's words aloud to the voice-user and type the voice-user's words to the TTY-user. All calls are 100 percent confidential. The service operates 24 hours a day, 7 days a week. Call 1-800-657-3603 (TTY), or 1-800-657-3599 (voice).
Leasing Telephone Equipment
You have a choice to own or lease your telephone. Leasing your telephone usually costs more. If you used to lease a telephone, check your next telephone bill to make sure you are not being charged for a phone you do not have or do not want. Many customers are surprised to learn that they have been billed for leasing a telephone that they returned many years earlier. If you find such an error on your bill call the telephone company to ask for a refund.
Inside Wire Insurance
Several local telephone companies sell what is called "inside wire insurance." This is an unregulated "service" under which the telephone company, for a monthly charge, will make repairs to the telephone wire inside your home at no additional cost. Telephone companies claim that repairs made by the telephone company may be costly if you do not have this insurance.
When deciding whether you need this service, keep in mind that damage to inside wire is very rare. In the event you have a problem with your inside wiring, an electrician or other independent repair person may be able to repair it for less than the phone company would charge. If you live in an apartment it is likely that the landlord is responsible to repair any wiring problems. If you are already paying for the insurance, it can be canceled by a simple phone call to your local telephone company.
Blocking 900 Numbers
As a telephone customer, you have the right to block unwanted pay-per-call services on your telephone. Pay-per-call services are usually charged on a per-minute basis and can cost as much as $5.00 per minute. These services come in a variety of forms, including 900 numbers, and international numbers. There are a number of things you can do to prevent access to these numbers from your phone:
- Get a 900 number block on your phone to prevent access to all 900 numbers. This can be obtained free of charge from your local phone company. You can also get blocking for international numbers. Some companies entice people to call international numbers for "free" information. International phone rates can be as high as $3.00 per minute. Ask your local and long distance company to block all international calls through its lines if you want to block these numbers. A nominal one-time charge may apply for international blocking.
- Talk to your children and grandchildren about these numbers so that they understand these calls are not free. By law, you are not liable for unauthorized calls to pay-per-call services made by minors or vulnerable adults.
If you get billed for unauthorized pay-per-call services you should know your rights so you can dispute the bill. You have the right to dispute any charges that you do not believe are correct. You should dispute the charges in writing and call the customer service number listed on the bill. Until the dispute is resolved, you may withhold payment of the disputed amounts and pay only those portions of your telephone bill that you do not dispute. When you send in your payment, indicate how you want the payment allocated.
Your local or long distance telephone service cannot be disconnected for nonpayment of pay-per-call charges.
Caller ID is a service that uses a display unit attached to your phone to identify who is calling you. You may lease or purchase your Caller ID display unit at a retail outlet or your local phone company, but you must pay your local phone company a monthly fee for the identification data. Because of technical limitations or because callers have blocked the release of the information, Caller ID will not identify some calls. Many telemarketers use these limitations to prevent you from using Caller ID to screen them out.
Each time you call someone who has Caller ID your name and telephone number are revealed unless you block the release of your name and number. Many people with unlisted or non-published numbers are surprised to find out that their information is released when they call someone with Caller ID. There are two ways to block your name and number from being released per-call and per-line blocking. When you use Caller ID blocking, your calls show up on the Caller ID box as "anonymous" or "private."
Per-call blocking will prevent the telephone number information from being released on that call only. Simply dial *67 (or 1167 on a rotary phone) before you dial the telephone number you are calling. This service is automatically available on your line, and there is no charge for using per-call blocking.
Per-line blocking will prevent your name and number from being displayed on all calls made from your line. To get through to people who do not accept calls from blocked numbers, you can temporarily disable blocking by dialing *82 (or 1182 on a rotary phone) before you place the call. Your line is then unblocked for the next call only. You must contact your local telephone company to request per-line blocking. There is no monthly charge for per-line blocking, however, a one-time charge may apply to order the service. Caller ID blocking does not work for calls to toll-free numbers your telephone number is always released to the company or person you are calling. When calling a 1-800 number, you have the right to request that your name and number not be used for telemarketing purposes.
"Slamming" is when your long distance or local service provider is switched to another company without your knowledge. Your first clue is usually when you get a phone bill from a company different than the one you thought you were using, probably at higher rates. To avoid having your long distance "slammed," ask your local phone company for a "PIC Freeze." This means that your long distance company cannot be changed without you personally contacting your local phone company either in writing or by phone. (There is no PIC Freeze-type protection for your local phone service.)
If you think you've been slammed, call your local phone company and ask to be switched back to your preferred company. You should also ask to have any switching fees refunded to you. Under Minnesota law, the company that slammed you must respond to your complaint by providing proof that you authorized the change in carriers. If they can't, you are not required to pay for any charges billed by the unauthorized provider.
If you are being billed for services not directly related to making local or long distance calls, and you never ordered the services, you may have been "crammed." These fraudulent charges come from various sources who submit their charges through your local telephone company. The charges appear on your phone bill with terms such as, "charges and credits," or "enhanced services." Close inspection reveals these costs are charged by a company independent of your local telephone company.
Take time to review your next phone bill. If you see evidence of cramming, contact your local phone company right away to cancel the services and have the illegal charges removed from your bill. Then contact the "cramming" company to dispute the charge.