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What do school closings mean for special education?

Posted on March 19, 2020 by Parker Counsel

If your kids are at home and you’re scrambling to find a way to keep some type of learning going, you are also probably wondering what happens to the carefully worked out IEP your child has?

Clearly we are in uncharted waters. As the health crisis deepens and normal life takes a sharp turn, it is impossible to know exactly what life will look like when we are finally able to shake hands again. This means that there are many questions we cannot answer in detail, but we do have some general information to start from.

If you have a child still in school who has been sent home, the general rule is that if services are being offered by the school district to children in the regular program, then services must also be offered to children in special education. For almost all children, the IEP cannot and will not be followed exactly, but where it can be followed, it should be. The main thing to know is that special education programs cannot simply be abandoned during this period unless the entire school program is temporarily suspended.

The second important thing to know is that the legal mandate for compensatory services will, in most cases, likely mean that schools will have to provide extra services for children in special education in order to make up for missed learning and services during the shut down. The schools will, of course, be overwhelmed with the need for additional services when they re-open, so there’s no way to know exactly what this will end up looking like, but the law as it currently stands does require schools to provide additional special education services when needed services have not been provided.

All of our students are missing learning opportunities at this time, but the law says that our students in special education should NOT take the brunt of the loss if there are limited resources.

As outlined in this factsheet, there is very little room for schools to make exceptions to the special education rules.

Stay safe out there.

Parker Counsel Legal Services serves families in Texas, Massachusetts, New Hampshire, and New Jersey. Call us at 833-RED-BOOT (833-733-2668) or legal@parkercounsel.com

ABLE Account Questions and Answers

Posted on March 4, 2020 by Parker Counsel

What is an ABLE account?

An ABLE account is a type of savings and investment account that can be held and used by a person with a disability who is receiving needs based government benefits. SSI, Medicaid, and some other assistance programs will not count the money being held in an ABLE account as a resource that disqualifies the person from the benefit.

Who can open an ABLE account?

An ABLE account can be opened for a person who has a disability that began before age 26. It does not matter how old the person is when the account is opened, as long as there is proof that the disability began before age 26. The account can be opened by the person, or by a guardian or other responsible person (see individual state accounts for specifics).

Who can put money in an ABLE account?

Anyone can put money in the account. The person with the disability can deposit work earnings and gifts to the account, but parents, grandparents, and anyone else who would like to give money can also deposit money into the account.

Is there a limit to how much money can be put in an ABLE account?

Yes, sort of. There is a yearly maximum and an overall maximum for money to be both tax advantaged and excluded from available resources for purposes of SSI and Medicaid qualification. Currently, up to $15,000 in deposits within one year. This amount may be adjusted for inflation periodically, and there are a few circumstances where the yearly maximum may be different (lawyers are incapable of answering a question without saying “it depends.”) In addition to the yearly deposit limit, once the total amount in the account goes over $100,000, the extra amount may be counted as a resource for determining eligibility for SSI and Medicaid. The account can accumulate more than that, but it may cause problems for the person’s benefits eligibility.

What can ABLE account money be used for?

Money in the account can be used to pay for items, services, and activities related to the person’s disabling condition. Most state’s interpret this provision liberally, but account holders should read their state rules carefully and keep receipts and explanations for all the money spent.

What happens to money still in the ABLE account when the account holder dies?

Many, but not all, states allow the Medicaid program to be reimbursed for payments made on behalf of the individual during their life. If there is money still in the ABLE account after any Medicaid claim, that money goes to the individual’s heirs or as directed in the individual’s will.

Can a person have more than one ABLE account?

No. Only one ABLE account per person is allowable. However, The ABLE account can be transferred to a different state program if one is found that better suits the person’s needs.

Does an ABLE account have to be opened in the state where the person lives?

No, most state ABLE programs allow accounts to be opened no matter where the person lives. Each state program is a little different, so you may prefer an ABLE account in a different state. You can see the terms of each state program and compare them here – ABLE National Resource Center.

What is the difference between an ABLE account and a special needs trust?

There are many differences, and they serve different purposes in a special needs legal plan, but here are some of the primary differences:

An ABLE account can hold a limited amount of money, but a special needs trust can hold any amount
An ABLE account can hold only cash. A special needs trust (other than a pooled trust) can hold real property and other assets as well as cash
An ABLE account can be managed by the person with the disability. A special needs trust is managed by a Trustee.
Any money in an ABLE account may have to be used for Medicaid recovery. Special needs trusts that contain only money or assets contributed by people other than the person with the disability do not have to pay Medicaid.

A special needs law firm can help you learn the difference between the two and the best use for each.

Should everyone who qualifies have an ABLE account?

This answer totally depends on the individual circumstances. Although ABLE accounts do provide some benefits, not everyone is going to need those benefits. And while it might not hurt to have an ABLE account even if one is not really needed, it can hurt if it’s being managed by someone who might not exercise the proper care and that could end up jeopardizing SSI and Medicaid benefits. So no, not everyone who is eligible needs an ABLE account.

Where can I find more information on ABLE accounts?

An excellent resource, especially if you want to compare and choose a state program to open an account, is the ABLE National Resource Center. You can also discuss these accounts and their benefit to you, if any, with your special needs planning attorney. An ABLE account is one part of a larger plan and should be part of the discussion you have with your attorney.

Parker Counsel Legal Services consults with special needs families in Austin Texas, Western Mass, the New Hampshire Seacoast, and Northern New Jersey. Special needs trusts, guardianship, and more. Give us a call and tell us about your family situation for some guidance on how best to plan a safe, secure future for your child. 833-RED-BOOT (833-733-2668)

Top 5 Mistakes People Make In their Wills

Posted on February 14, 2020 by Parker Counsel

If you’re the average person living your life, and you’re one of the slightly less than 50% of the adult population who decides to actually write a will, for real, this time, then there’s a good chance you will make one of the following mistakes. So to help you do the best job you can do with this important task (how important? Just ask someone who had a parent or spouse die without a will) we’ve compiled the most common mistakes people make when writing their wills.

Not finishing. You’d be surprised how many people try to DIY their will but never actually finish signing them. You have to sign in a very specific way, which varies depending on which state you live in but always involves some combination of you, witnesses, and a notary public. Usually all these people have to be present at the same time and sign together, which makes it easy to put off and a lot of people never get around to it. A will without the proper signatures is not a will.
Not updating. A will should be reviewed and updated as your life changes. Sometimes the problem is that what you own has changed significantly and the way you distributed it no longer makes the best sense. More often, people you named as executor or other fiduciaries have died, become unreliable, or moved far away and can no longer serve.
Thinking that a will is all you need. Not all of your property is disposed of by your will – if you have life insurance, or retirement accounts, and sometimes even your investment or ordinary bank accounts, have beneficiary designations. This means that when you open the account, you are asked who you want to get the account at your death. Anything you own that has a beneficiary designation will not be affected by your will. This means you have to think about everything together and review (and change if needed) the beneficiary designations you have made at the same time you are preparing your will. If you intend to give everything to your friend Bob, but you forgot that you named your friend Fred on your retirement account, then your intent will not be carried out. Also, there are other useful documents you may need to prepare in addition to a will, even though we tend to think about “writing a will” rather than “writing a HIPAA release,” there are a number of documents that typically are prepared when someone sits down to “do their will.” These include a power of attorney, a medical power of attorney, a HIPAA release (that lets the people you name have access to otherwise private medical information), and a few others. These documents will be needed in the event you become incapacitated, either temporarily or permanently. If you are in a serious accident and spend months in a hospital or rehabilitation center, you will need other people to help handle your finances, your insurance claims, and other similar things, which they will not be able to do easily unless you have prepared these additional documents.
Not letting people know about your will. Once you have a will, and, hopefully, your other documents (see #3), you need to make sure people know they exist and where to find them when needed.
Thinking you can do it all yourself. I know, this one sounds very self-important, but a lawyer really is useful when you want to write a will. If you want to make sure you do what you intend to do, hiring a lawyer is definitely the way to go.

Turning Fire Drills into a Game

Posted on January 18, 2020 by Parker Counsel

Every year 2400 fires occur in homes where a person with a physical or mental disability lives. Fire drills at home are probably even more important than school fire drills for families who have a member with a disability, as there may be fewer people to assist with evacuation and homes are less likely to be fully accessible and may have fewer exits than public buildings. On top of that, at least half our time at home is during sleep hours, when no one will be thinking clearly if a fire wakes them out of a slumber. The US Fire Administration has more information and safety tips here Fire Administration

At least one company has set out to help families teach their children with special needs how to safely get out of their house in the case of a fire. Fire Guide has developed an app that lets you guide your child with your own voice, and then give feedback and refine the instructions specifically for your own home and your own child’s abilities.

Planning and drills can mean the difference between safety and tragedy. Turn fire drills into play time and give your family a better chance in case of fire.

Portsmouth NH Special Needs Trust Attorney

Posted on December 6, 2019 by Parker Counsel

Parents of children with developmental disabilities that will not be able to work and support themselves as adults can provide for their children in the future with special needs trusts. This special type of trust allows families of all economic means to leave money to help provide a better quality of life for their child without endangering their very important social security and Medicaid benefits. You can find more information on special needs trusts here. Our firm can help you develop a comprehensive estate plan that includes a special needs trust for your child with special needs to ensure resources for their care long into the future.

Your child may also need guardianship after they turn 18, when you, the parents, can no longer make decisions for them or even access educational and medical information without your child’s permission. Our firm can help families in Rockingham county and Stratford county apply for and present the necessary evidence to a Court to obtain an order of guardianship. Some of your questions about guardianship are answered here.

The best way to get answers to your questions and see if we can help you is to give us a call or send an email. We love to chat with families about their needs, and we promise you will learn something you didn’t already know when you talk to us. 833-RED-BOOT (833-733-2668) or legal@parkercounsel.com

A New Hampshire special needs trust attorney can help you from our office in downtown Portsmouth, 155 Fleet St, Portsmouth NH 03801.

Ask the right questions about fiduciaries

Posted on December 5, 2019 by Parker Counsel

One of the most difficult parts of estate planning is choosing the people you will name as your fiduciaries – that is, the people who will carry out your business. The word fiduciary involves trust, and a fiduciary is a person who you trust to carry out the task for which you have named them. In estate planning, you will name people to not only to handle your will, but also to handle your financial affairs in the case of your disability, to make medical decisions on your behalf if you are unable to do so, to take care of your children if you die, and possibly to take care of the money and property that you leave your children while they are minors or if they are disabled. While you do need someone you can trust in all those roles, there are other factors that are important as well.

If you are lucky enough to have enough family and friends to have to make choices, in addition to the question “who do I trust” you should also ask the following questions to help you determine the best choices for your various fiduciaries:

Who cares about my child?
Who understands and respects my wishes?
Who knows when to ask for help?
Who is happy to hear suggestions from other people?
Who is careful about recordkeeping?
Who is good with money?
Who would step up to help even if you didn’t ask?

These and other questions like them will help you think through the people in your life and figure out who the best matches are for the various fiduciary roles in your estate plan. If no one fits the bill, your attorney can help you figure out how to either provide extra support for your fiduciaries, or point you to professionals who can fill the roles.

Parker Counsel Legal Services serves families in Central Texas, Western Massachusetts, Northern New Jersey, and the New Hampshire Seacoast with special needs estate planning, special needs trusts, and guardianships. Contact us for a consultation at 833-RED-BOOT (833-733-2668) or legal@parkercounsel.com

Keep your estate and special needs plan up to date

Posted on November 11, 2019 by Parker Counsel

Review your retirement, investment, and trust accounts

We help families in Texas, Massachusetts, New Jersey, and New Hampshire plan for the future of their child with special needs, and part of that planning means knowing what you have. We recommend you periodically review all your accounts and assets to

Make sure you remember what you have (as nice as it is to “find” money in the state unclaimed property lists, it’s better not to lose it in the first place)
check the amount you have in it
review whether you have a beneficiary named on the account and whether it is the correct beneficiary for your plan
make sure that your property and any beneficiary designations still match your overall plan

Make a list of your current assets, their amounts, and the beneficiaries. If you need to make any changes, make an appointment with your financial planner or attorney to go over your situation.

Review your will, power of attorney, medical documents, and trust documents

After you take a look at what you own, take a look at the documents you have to take care of that property, both before and after your death.

Are your fiduciary agents still the right people?
Have there been any weddings, births, divorces or deaths that require changes to your plan?
Have you moved to another state or had a significant change in your assets?

If you need to make changes or have questions about any of the changes in your life, make an appointment to see your attorney to make sure your plan is up to date and still does what you want it to do.

How NOT to use Special Needs Trust Money

Posted on August 20, 2019 by Parker Counsel

Special needs trusts are simple and yet oh so complicated, like almost everything devised by the government. They are a wonderful tool for parents and others to provide money to use for a disabled child while protecting the child’s eligibility for Medicaid and SSI (social security benefits). They can hold any amount of money and that money can be used to supplement the benefits received from the government and thereby, it is hoped, enhance the quality of life of the individual.

The money cannot ever, however, be used to pay for items that the benefits are intended to cover, without causing some reduction in, or sometimes loss of, the benefits. This includes things like:

Cash given directly to the beneficiary for any purpose

Food or groceries

Restaurant meals (except if given as an occasional gift)

Rent or mortgage payments

Utilities such as electricity, gas, and water

Utilities hookup or connection charges

On the other hand, a special needs trust CAN make contributions to an ABLE account, and the ABLE account CAN be used to pay for many of the items the Trust cannot pay for. See? Simple and yet complicated all at the same time.

Special needs planning blueprint

Posted on August 12, 2019 by Parker Counsel

This checklist keeps you organized as you work through creating a plan to care for your child with special needs in the future. Broken into sections that track the Four Keys System we use with our clients, this Blueprint will let you dive in wherever you can without missing items you need to come back to.

Eighteen and armed . . . with all the best documents!

Posted on June 5, 2018 by Parker Counsel

I love having 18 year olds in my office. They signal they are listening intently to me by making their eyes wide and keeping them trained on me while I talk, but the slight glaze over the eyeball is obvious as they nod and agree and pretend like they understand everything we’re talking about.

Now, don’t get me wrong, they DO understand, but they don’t UNDERSTAND. They know that the power of attorney means someone else can access their bank account and get money to pay the landlord if for some reason they can’t do it, but they don’t really get why that matters. They understand that the HIPAA form means everyone they list on it will be able to call the hospital and get information on their condition if they wind up in a car crash far from home, but they don’t really know why we think that might happen. They understand that the FERPA release will let their parents arrange for a leave of absence from their college if a medical emergency lays them low for a few months, but they really kinda think we’re being ridiculously anxious about things that will never happen.

They don’t yet understand that life is unpredictable. They don’t yet understand that the unpredictability can cause problems that last for years if they are ignored. They don’t yet understand that it’s easier to prevent a major problem with a little planning than it is to try and clean up a problem that has grown to an intrusive problem. They don’t understand that one eviction for nonpayment of rent, one default on tuition payments, one medical emergency where an insurance company gets away with denying services that should have been covered can all have far reaching consequences that affect their life and options for years to come.

But parents understand. So every 18 year old client that I have, sitting in front of me while I explain the personal legal documents that every adult should have, has a parent or two sitting in the waiting room, who understand.

It’s easy to book an hour and a half appointment for your young adult to complete all the personal legal documents every adult – even young ones – should have. Give us a call at 833- RED-BOOT (833-733-2668) or email legal@parkercounsel..com Whether you’re in Austin, TX, Western Massachusetts (Amherst, Northampton, Springfield, the Berkshires) or Northern New Jersey.

Author: Parker Counsel