First, ripped off; then, state tries to deny his benefits

  • Article by: MARY JANE SMETANKA , Star Tribune
  • Updated: May 8, 2008 - 10:17 AM

One man's battle for long-term aid could become more common as elderly juggle assets.

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Donald Mayne listens as his daughter Linda Jentink explains why his nursing home bill hadn't been paid.

Photo: Kyndell Harkness, Star Tribune

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In his whole life, Donald Mayne says, he never bounced a check or failed to pay a bill.

But when the retired bus driver began to show signs of Alzheimer's disease and his diabetes acted up, he gave his daughter Lisa power of attorney and left it to her to pay his bills.

Over 27 months, Lisa, without her father's knowledge, allegedly drained at least $60,000 from his bank accounts, according to Ramsey County court records. In June, she faces trial on three counts of theft by swindle.

Donald Mayne, 77, bows his head when he talks about Lisa. But her trials would not be the only heartache he would face over his lost savings.

Because of his daughter's actions, local authorities tried to strip Mayne of government benefits that help pay for his care in an Eagan assisted-living facility. They cited laws that require states to crack down on clients who shed assets to qualify for that kind of government assistance.

Attorneys who work on elder issues say that while it's unusual for a senior to be penalized for someone else's theft, Mayne's ordeal over benefits may become more commonplace.

In 2006, the Legislature lengthened the "look-back" period for asset transfers from three to five years and toughened penalties for illegal transfers. The full effect won't be seen until 2011, but in some counties questions have been raised over giving as basic as tithing to a church.

"The system that is set up to help people is hurting people," said Laurie Hanson, a Minneapolis attorney who is chairwoman of the elder law council of the Minnesota State Bar Association. "It's so adversarial and mean-spirited. I don't think it needs to be that way. ... We're all just trying to get our clients the long-term benefits they need."

Without the help of some University of St. Thomas law students, Mayne might have lost his benefits.

He relies on elderly waiver services, a form of government Medical Assistance -- Minnesota's version of Medicaid. Late last year, Dakota County concluded that he had made a prohibited transfer of assets that made him ineligible for benefits. An administrative law judge at the state Department of Human Services agreed.

Even though Ramsey County had already found that Lisa Mayne financially exploited her father, the judge said there was "no convincing evidence" that the transfer was anything but an attempt to hide assets so he could get benefits.

"It does not matter that his daughter, who was his attorney-in-fact, made the transfers against his will and outside his control," human services judge Ruth Grunke Klein wrote.

According to St. Thomas law students Dee Ann Slinkard and Jessica Peyton, who represented Mayne as part of the school's Elder Law Practice Group, Mayne's benefits were restored only after a district court appeal and intervention by the state attorney general's office. Within a day, Dakota County gave Mayne a waiver to keep his benefits.

Dakota County Communications Director Gail Plewacki said the county had been merely following the law.

"We have a dual responsibility to protect qualified recipients and also be the watchdogs of tax dollars," she said. "We followed the letter of the law. ... I can't imagine that anybody here would want to see any of our clients hurt in any way."

An eviction notice

Donald Mayne drove buses in the Twin Cities for 42 years, raising two daughters after a divorce. Lisa, the oldest, became a lawyer; her sister, Linda Jentink, is an administrative assistant.

When Mayne began blacking out in 2005 because of diabetes, he was hospitalized and then went to a nursing home. He gave Lisa power of attorney because she was "the smart one" in the family, he said, a college graduate and lawyer.

He applied for Medical Assistance. He was required to pay a portion of his retirement income for his nursing home care. Medical Assistance picked up the rest.

In 2007, Mayne moved to Keystone Communities assisted living in Eagan. His benefits shifted from Medical Assistance to elderly waiver services, which pay for care in settings outside of nursing homes. Lisa was supposed to pay his rent from his pension.

In March 2007, Jentink visited her father and opened an envelope that was on the table.

"I went, 'Oh my God,'" she said. It was from lawyers representing the nursing home he had left, saying it had not been paid for more than a year.

She called her sister, but she didn't return the calls. When they finally talked, Lisa "said it was all a mess-up and it was supposed to come out of the account," Jentink said. It was the last time they talked.

In mid-April 2007, Jentink was notified that Lisa hadn't been paying his rent at Keystone, either. Mayne owed more than $8,700.

"I thought, 'She's stealing my dad's money,'" Jentink said. "I had an eviction notice in my hand!"

Mayne switched power of attorney to Jentink, who notified police of her suspicions. In August, the nursing home filed suit for payment of almost $38,000. In October, Ramsey County found that Lisa had financially exploited her father.

A week later, Dakota County notified Jentink that it was denying Mayne's benefits.

Plewacki said the suspension of benefits was legitimate, based on state law, and noted that Mayne never lost services. Slinkard said that was only because Mayne appealed and because the attorney general intervened.

Spokespersons with the state Department of Human Services declined to comment on the case.

Hitting the middle class

Elder law attorneys such as Hanson and Julian Zweber of St. Paul believe the revised asset-transfer rules will be a minefield for middle-class families.

"If you never had any money to give away, you'll never get into trouble, and if you're wealthy enough to private-pay for your care, you'll never get into trouble," Zweber said. "But if you've accumulated some life savings and you would like to pass it on to your children... this could be a trap for the unwary."

The law is designed to prevent people from giving an early inheritance to their heirs, leaving taxpayers to finance their long-term care.

In Mayne's case, Hanson said the theft "wasn't a transfer, and should not have resulted in even a hearing. Or if they had a hearing, it should have stopped there... [Mayne] did not appoint her to steal from him."

Lisa Mayne did not respond to the Star Tribune's phone and e-mail messages. According to a criminal complaint, she told police that her father wanted her to have his retirement accounts. She admitted using money for personal expenses, and said that she has mental health issues and that her house had been foreclosed on.

Her dad just wishes the whole thing had never happened.

Lisa's portrait sits in a lineup of family photos in his apartment. Sometimes, Jentink finds that he has flipped Lisa's photo face-down.

"I hope she comes back someday," he said, tears filling his eyes.

Mary Jane Smetanka • 612-673-7380

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