Special Needs Planning for Families

Fearless Family Legal Document Package

The Basic Package includes the following:

• Documents and materials related to the winding up of your affairs in the event of your death.
• Documents and materials to take care of you  in the event of your own permanent or temporary disability
• Documents and materials to provide financial, personal, and transitional care for your child with a disability

 Documents you will prepare:

• Will
• Minor’s trusts
• Designation of Guardian for a minor child
• Durable Power of Attorney
• Medical Power of Attorney
• Living Will
• HIPAA Release form
• Special Needs Trust

Materials you’ll receive:

• A binder for your special needs trust, with basic instructions for administration and record keeping
• Sample letters for relatives
• EIN application for your special needs trust
• Complimentary copy of  “Special Planning Workbook: Create a Personal Instruction Manual for Your Special Needs Child”
• Checklists for things you need to do after you create these documents
• Checklists for making sure you keep all your documents and plans up to date

You’ll receive personal advice and guidance on:

• Choosing your child’s guardians
• How to distribute your assets, including life insurance and pension plans, to meet your goals
• The specific terms of your minor’s and special needs trusts
• Choosing trustees and executors
• Transferring assets to the Special Needs Trust, if necessary

The package includes a minimum of three consultations, in person, by phone or email as appropriate, and inclusion on an annual reminder list that will help you keep your plan working and up to date.

 

Package add-ons:

• Succession planning for business owners – quoted after consultation
• Tax planning for estates  subject to the federal estate tax (Texas has no estate tax) – quoted after consultation

 

Call 512-804-9934 or email pparker@parkercounsel.com for an appointment. 

How Doing Your Estate Planning Can Help in a Disaster

As we all watch the almost incomprehensible scenes of devastation coming out of Oklahoma, I have trouble  imagining how the people in these neighborhoods will begin to move forward.  They have nothing - not even a wallet with ID and their bank card. Even if they could find a way to get to a store to get food or water, they would have no way to pay for anything.  The Red Cross, Salvation Army, and other relief services are critical in the immediate aftermath of a disaster. 

But there are other things that can help in the aftermath as well.  Things that we can do ourselves to prepare in advance for emergencies.  

For example, in the days to come, many people will have to figure out how to replace those ID's, get access to their bank accounts, get copies of documents such as vehicle titles, homeowner's documents,  credit card information, bills that are due . . . and if there are injuries, health insurance matters are added into the many many administrative matters that need to be dealt with, as well as repalcement of lost prescription medications and medical equipment. 

BUT if they have created a power of attorney, and given a copy of it to their designated agents, then those people can do a lot of these tasks for them.  If they have created a HIPAA release, the people designated on the release can help with health insurance and medical matters.  If you found yourself in a total disaster such as this, you would welcome all the help you can get from friends and family, but without documents such as these, their ability to give all the help you need is hampered.   A person with a power of attorney could even go to your bank and withdraw cash for you. 

So use this moment to light a fire under your excuses, reluctance and fear.  Estate planning is not just for your death, it is also for disability and disaster.   You will thank yourself if you ever need it. 

Writing your own will: Can you? Should you?

I spoke at a meeting of special needs parents last week, and in the course of the discussion one woman shared that while she hadn't yet done a will, she does do an informal, handwritten will every time she takes a trip.  Her question was, is it valid?

I like that she was taking action.  Imperfect can be better than nothing.  Especially with a special needs child, her handwritten will, if done propoerly, could make a huge difference in the amount of money available to care for her special needs child over her lifetime.  

Or it could drastically reduce the amount of money available. 

Every state has very specific rules about how a will must be created in order to be valid, rules that deal with things like witnesses - how many, what they must say, who can be a witness - and notarization - whether you must have it or not - and the actions of the testator - what he or she must say to the witnesses, whether testator and witnesses must see each other sign, when the testator is "fit" to make a will.  If you miss or mess up one of the requirements, your will either won't be accepted by the court, or your estate will spend a lot of money convincing the court to take the will anyway. 

Many states also allow what are called "holographic" wills, that is, a will written completely in the testator's own handwriting, that can therefore skip many of the otherwise required elements.  But each state also has their own rules about these kinds of will, too. 

In Texas, if the will is completely handwritten by the testator, and signed, it is valid, even without witnesses or a notary. 

Writing your own will MIGHT be better than not doing one at all, but it can still wind up costing as much or possibly much more in the long run than the amount you save by not paying an attorney or even buying will-maker softare. 

Some examples

• if you fail to specify an executor, someone will have to petition the court to act as one - resulting in adidtional cost to probate the will
• if you don't say that your executor serves without bond or can conduct an independent probate, then there may be significant additional cost to probate the will
• if any of what you write is ambiguous, the court may have to make a determination of your intent - after a hearing which of course means additional cost

There are other ways in which a self-written will may not accomplish your goals as well as it could have if you had consulted an attorney. Doing your own legal work is similar to doing your own home repair - some repairs are simple enough to do yourself, some are so difficult or require specilized tools that you know you can't even begin to do them yourself, and then there are a bazillion repairs in between those two extremes that you have no way of knowing whether you can do them properly and may only find out you couldn't after you've made a colossal mess and had to hire someone to fix the original problem and the new one you inadvertently created. 

That said, many people do their own home repairs because they have no other choice.  And  if you have no will and don't intend to hire an attorney any time soon, a handwritten, holographic will might be better than nothing. 

 

Six Questions to Ask at an ARD Meeting - Question SIX

Question 6. Do we need more information before a decision can be reached? (and why, or why not?)

Pull this question out when you are interested in a particular service but the school is trying to talk you out of it.  An ARD committee meeting can be adjourned by mutual agreement any time and as many times as necessary, so if there is more information to be gathered, the meeting can be rescheduled.  This question is a good one to use to try and slow things down if they are going in a direction you disagree with.  Asking the follow-up – why? Or why not? – will let you know if they are making a conscious recommendation, or if they are simply following the routine plan for special education students.

Although the law requires an individual education plan to be developed for each student based on that student’s individual and unique needs, in reality schools generally set up programs and apply them to all students.  For the most part, this is not necessarily bad, and may be the only way for the school to have resources to provide services to everyone who needs them.  But sometimes, you do need to be very individual and these questions will help you keep the school on the right path.

 Review all six questions:

Question ONE

Question TWO

Question THREE

Question FOUR

Question FIVE

Question SIX

Six Questions to Ask at an ARD Meeting - Question FIVE

Question 5. Where will that be written in the IEP?

If it’s agreed to by the entire committee, it’s a suggestion.  If it’s written down in the IEP, it’s a mandate. However, because the paperwork for an IEP is extensive and complex, it is not always readily apparent whether something is actually in the IEP or not.  Make sure you ask this question to be sure that it is not overlooked.  Because of the complexity of the paperwork, things are sometimes unintentionally left out of the IEP, so it is always worthwhile to ask this question, even if you trust your ARD committee. 

 

Chedk back tomorrow for Question SIX, the last in the series. 

Read Question ONE

Six Questions to Ask at an ARD Meeting - Question FOUR

Question 4. What training on this is available to these personnel?

Adequate training for personnel that work with your student is critical.  Training may be on specific educational techniques or on working with particular disabilities. This is a good question to ask as a matter of routine, because you want regular training for all the staff working with your students, including classroom aides.  Once it written into the IEP, the district is legally obligated to make sure the training is provided. Because classroom aides are often the people primarily engaged with your child, be sure to ask specifically about training for them.  Many districts routinely do staff development training only with teachers. 

Check back tomorrow for Question FIVE

Read Question ONE

Six Questions to Ask at an ARD Meeting - Question THREE

Question 3. Is there any person in the district that might have more information on this?

With only a few school staff on each ARD committee, there are bound to be people in the district with more experience and more expertise in many areas being discussed by the committee.  Whenever you feel that more information would be helpful to deliberations, use this question and see if that person can be consulted or brought into the discussion.  

Check back tomorrow for Question FOUR

Read Question ONE

Six Questions to Ask at an ARD Meeting - Question TWO

 

Question 2. What other ideas do you have?

This is a great question to use when the school staff seems to have already decided the entire IEP.  

 Check back tomorrow for Question THREE. 

Read Question ONE

Four Keys Overview of Special Needs Planning

Ghostly Molecules of You

The time is coming when you will have to confront a growing issue for thos of us who are active on the internet is what, if anything, to do about your online "property" when you are writing a will and doing your estate planning.  Even if you are not a blogger or ebay entreprenuer with intellectual property or an actual part-time business to think about, you do likely have a number of password protected accounts with photos, written posts, or personal information that you would like to either disappear at your death or to be accessible to your family or other loved ones. 

At the very least, everyone - at least everyone who is reading this online blog - has an email account. 

There are two basic ways to handle these online accounts at your death.  

1. Do nothing.   This means that someone, and it may not be the person you would expect, may or may not think of trying to get into your accounts and may or many not be successful after much sweat and tears. 

2. Leave passwords to the accounts you care so that a person that you choose can get into them and take appropriate action.  There are a number of ways you can do this. You can handwrite the passwords and leave them in a safe deposit box, you can direct your executor to distribute them as per your will, you can give them to a trusted person now, you can keep them in an online "locker" with instructions as to how to handle them on your death.  

But now there may be a third option, at least for some types of accounts. Google has a new service  that allows you to designate what to do with your Google accounts after a specified period of inactivity.  It's an intriguing idea and I suspect we will see forms of this pre-determination pop up on other types of accounts as well, just as we designate beneficiaries on our financial documents. 

Whatever the route you choose, it is a good idea to give this some thought and make a plan for the accessibility or destruction of your accounts at some point in the future. 

The Disastrous Consequence of Skipping Step Two

Step one is to think over and come up with a plan.  Step two is to implement it.

The general legal planning for each child is the same.  The first part of the plan is to set up a legal framework for other people to help as much or as little as needed.  This may mean a guardianship, or it may mean creative ways to authorize others to help with business, medical and day to day to decision making.  The second part of the plan  is to provide for financial resources.  For most people with disabilities, this means making sure that they have access to federal assistance programs such as supplemental security income (SSI) and Medicaid, or their state counterpart programs.  Additionally, the family will want to provide a way to supplement whatever basic benefits the individual may be entitled to.   While most families do think about these things, far too many fail to create the legal documents that are needed to carry out the plan.

Mrs. Smith, from near Houston, made just that mistake.  She raised a large, loving family that pulled together to take care of its own time and time again.  She herself raised her mentally disabled grandson whose mother suffered from her own disabilities.  The family rallied and together made sure that this grandson lived his life happy and well cared for.  By the time he reached his 30’s, Mrs. Smith, now sick and near death, had amassed a modest estate that would allow her grown children to continue to care for her grandson and other family members who needed help. Mrs. Smith had talked extensively with her children about her wishes and had complete trust in their ability to carry on in the caring and loving way they always had.  Mrs. Smith died knowing that all her family was well taken care of.

But Mrs. Smith neglected to take the legal steps necessary to carry out her plan.  She neglected to give her children the legal authority to do what they knew she wanted done. And the result is irreversible. 

When she died, Mrs. Smith had no will.  Her grandson was her only legal heir under the state intestacy statute.  Her grandson did not have a successor guardian designated. The family immediately stepped in upon her death, as she anticipated, and continued caring for the grandson and other family members who Mrs. Smith had been assisting.  By all accounts, the family was united and handling things well according to Mrs. Smith’s wishes. 

The problem was that under state law all of Mrs. Smith’s estate belonged to the grandson. In an ordinary case, the grandson would have been free to use his inheritance in any way he wanted to, including giving away money to other family members. Be because his disability made him not competent to make decisions for himself, the court had to appoint a guardian, whose responsibility would be to preserve the money for his care.  The court declined to appoint a family member as guardian, because they had already shown an intent to divert part of the grandson’s money to other people. And once the court appointed guardian was in place, the family no longer had access to Mrs. Smith’s estate and could no longer use the money as she had intended. 

Mrs. Smith had a good plan, a comfortable financial legacy, and people she trusted. But her failure to complete the plan by creating the legal documents necessary to carry it out meant that famly members she had intended to care for were left out in the cold, and the guardianship of her grandson was no longer in the family. 

The creation of wills and trusts, the naming of executors and guardians, is not something that can be done informally.  The following chapters will give you a feel for how to plan, what to plan for, and how to nail everything down.  Thinking about these difficult topics is only the first step.   This book will help you with that step.