Probate & Trust Law Section Conference Manual ... - Minnesota CLE

K. The North Dakota MA Manual at 510-05-75-10 states that property enrolled in
the Conservation Reserve Program (CRP) is considered property essential to
earning a livelihood and is excluded as an asset.
L. The North Dakota MA Manual has a separate Section at 510-05-75-15 for the
treatment of asset ownership for individuals that live in communal colonies
(Hutterites, Mennonites, Amish, etc.)
M. Disqualifying transfers in North Dakota are treated the same as Minnesota with
one substantial difference: those transfers involving “someone in a confidential
relationship.” North Dakota MA Manual Section 510-05-80-05(4) provides:
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4. “Someone in a confidential relationship” includes an applicant or
recipient’s power of attorney, guardian, conservator, legal custodian,
caretaker, trustee, attorney, accountant, or agent, and may include a
relative or other person with a close and trusted relationship to the
individual.
North Dakota state law provides that any transaction between an
applicant or recipient and someone who has a confidential relationship
with that individual in which the individual who has a confidential
relationship gains any advantage over the applicant or recipient is
presumed to be entered into without sufficient consideration and under
undue influence.
Someone with a confidential relationship who can exercise control over an
applicant’s or recipient’s income or assets has a duty to act in the highest
good faith and not obtain any advantage over the applicant or recipient;
to not use or deal with an applicant or recipient’s property for their own
profit; to refrain from transactions adverse to the applicant or recipient;
and to refrain from using undue influence to obtain any advantage from
the applicant or recipient.
Accordingly, transfers of an applicant or recipient’s real or personal
property made by an applicant or recipient to the person with the
confidential relationship must be at 100% of estimated fair market value.
Transfers for less than 100% of fair market value may be subject to the
disqualifying transfer provisions.
Transfers of an applicant or recipient’s property made by someone with a
confidential relationship, for which 100% of fair market value was not
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