Guardianship is a choice, but not the way you may think

There are no true “alternatives” to guardianship for a special needs child.  A parent may choose not to seek a guardianship, but for a person who qualifies for a legally appointed guardian, there is no other legal alternative besides simply not having a guardian.

The term “alternatives to guardianship” is used frequently in  estate planning as a means to prepare for the possibility of incapacity later in life, through dementia, alzheimers, or other disease or disability.  By putting in place powers of attorney and other tools, most people can avoid the need to have a guardian appointed for them if they become unable to manage and take care of their own affairs.  This planning process provides an “alternative” to guardianship later in life.

But for children with developmental disabilities, there is no opportunity to prepare in advance.  Those that do not have the ability to manage and take care of their own affairs have never had that ability.  The only question, when they reach age 18, is whether or not they need guardianship.

When a child turns 18, Texas recognizes them as an adult, with all the rights and responsibilities of self-determination that entails.  Mom can no longer insist on coming into the doctor’s office with them, dad can no longer call the school to find out if they are turning in all assignments, and no one other than the child – now adult – can sign or void a contract in their name.

In other words, parents serve merely an advisory role after age 18.  And they serve completely at the discretion of their child.

The problem is, if the child who has turned 18 does not have the ability to understand and make decisions on their own, even with advice, then all the advice in the world may not keep them safe.  If your child has a developmental disability, this can cause serious problems.  If your child’s disability means that they are not able take care of themselves – cannot substantially provide for their own physical, financial and medical care – because they do not have the physical or cognitive ability to do so, then they are at significant risk being out in the world making their own decisions.

If your child is likely to reject medical treatment because they don’t understand the benefits, or if your child is likely to turn over all their money to a scam artist who is willing to take advantage of them because they don’t understand what is happening, or if your child is so impulsive that they may act without even considering the consequences or any previous decision they may have made or advice they have received, your child is at risk without a guardian in place.

People over the age of 18 who have a disability that prevents them from having the ability to understand and manage their own financial, medical, and daily living affairs should have a court appointed guardian who can make sure they are cared for. The guardianship should only cover the areas in which they are unable to function on their own, so a guardianship may be “full” or “partial,” depending on the individual.

There are some situations in which a parent may choose not to seek guardianship over a child who otherwise qualifies.  Those situations work only as long as the child is cooperative or unable to express an opinion, or as long as others accept the situation.  But if a medical office, or a service agency, is uncomfortable letting a parent speak for their incapacitated child without legal authority, then a guardianship is the only way to overcome that problem.

A child turning adult who does have capacity to make their own decisions and care for themselves in one or more areas can enlist others to help them.  This may be an informal arrangement where they simply ask mom or dad for help, or a formal designation of authority by signing a power of attorney, medical power of attorney, and other information releases.  However, the person signing these documents retains their right to conduct their own business, and can revoke or change the documents at any time.   A Supported Decision Making Agreement is another way to formally agree to help and be helped.  It emphasizes to a special needs adult the importance of using the support system he or she has, but it does not provide anything in addition to other formal documents and is not a substitute for guardianship.

For help figuring out what is best for your child, or to get started preparing guardianship or other documents, give us a call at 512-804-9934.

Fearless Family Fund Grants are here!

We are excited to announce a new tool available to help families complete the legal planning that is so critical to taking care of our special needs children.

The Law Office of Pamela Parker now has grants available to offset the cost of obtaining guardianship, and of doing the estate planning and special needs trust creation needed to ensure the continued eligibility of adults with disabilities for SSI, medicaid, and other needs based government benefits.  Grants are also available for one time consultations on special needs issues.

Applying is as simple as filling out an application and certifying that without the grant you would be unable to obtain needed services without significant financial hardship.

Grants are awarded based upon available funds and time.  Grants may be denied or withdrawn if a conflict of interest appears.  Download the application:  Fearless Family Fund Grant Application pdf

Holidays – good or bad?

All parents of special needs children, no matter how old they are, know that the holidays present extra challenges.  Even children and adults who love the holidays can be overwhelmed by the festivities.  Add in families that don’t fully understand the limitations your special needs family may have in participating in family traditions, and it’s easy to let the holiday stress be your focus instead of the holiday fun.  My wish to you this season is to recognize that more people are behind you than you know, and to remember that every family is unique and all traditions, even non-traditions, are valid.

And in that spirit, I share with you my 24yo son’s photo with Santa, taken yesterday at the mall.  Dylan loves Santa, but sitting with him in the middle of a busy mall in front of flashing lights was a little more than he could handle.  Fortunately, Santa looks more amused than annoyed!  img_20161221_160422

Share your own favorite holiday photos below.

Lights!

Today is the anniversary of the invention of the electric light bulb, a monumental moment in the development of modern life.  Personally, I think the invention of the disposable paper nose tissue was the single greatest invention for the improvement of quality of life, but there are no documentaries about it’s origins, so instead I will offer you this 1922 look at a day in the life of Thomas Edison.

Life is not like a movie

While happily scrolling my facebook feed today, checking out what my friends’ kids wore to the first day of school, and who is outraged about what today, I was suddenly stopped in my tracks by this headline:  “Last hospitalized Pulse shooting survivor discharged after nearly three months.

Pulse?  That was the horrifying mass shooting in Orlando that happened, when, a long time ago, right?  Long enough ago that I’ve had time to be horrified, outraged, sickened, sad, and then . . . going on with my life.  So the news that one of the victims is only now getting out of the hospital, that one of the victims has been under hospital care for nearly the whole of summer, stopped me in my tracks.

Because it’s easy to forget that tragic, massive events don’t end once the story has been thoroughly reported.  They don’t unfold like in the movies, where victims or car accidents, or fatal diseases, or even mass shootings, either die or survive.  In the movies, victims who die are buried and eulogized, victims who survive get up and leave.

In real life, injuries bring your life into a different dimension.  Three months in the hospital can decimate whatever order you had in your life, and if, as is likely, the recovery will continue after release for months or years longer, your life will and must be different.

Which is why planning for the possibility of disruption in your life is so very important.  Legal, financial, and personal contingency plans make the difference between hardship and disaster.  They make the difference between stress about the injury, and stress about every single thing in your life. They make the difference between having the people you know love and care about you around helping, and not having them there.

Writing a will is important, but it’s only one small part of what you will do with an estate planning attorney.  You will also get help putting a plan in place that gets as close as possible in the event of a traumatic injury,  to keeping you focused on your injury and recovery, not on everything else.

When you plan with Pam, things go more smoothly.

Not all your “property” is yours

confused ladyDid you know that some of what you think you own might not actually be yours?

I help people decide what they want to do with their property at their death. I write documents that ensure that their wishes can be carried out.  As part of my job, I ask people about the property they own.  And what I know because of this, is that most people don’t have clue about online property.

It’s important to know what property is yours.  That sounds like an unnecessary statement to make, but we actually have a lot of property that we believe is ours, but that actually is not.  And that can cause you problems. If not now, it can cause problems later on for the people you thought you left the property to at your death.

Almost everyone has digital property. Online accounts for social media, blogs, websites, email are all types of digital property, as well as any files you place on those accounts.  But some of that “property” is not really yours.  Take, for example, a facebook account. Most American adults have a facebook account, and many of us use it as a repository for photographs, as well as an ad hoc diary of our life.  But the account is not actually owned by you.  It is actually owned by Facebook, and they retain nearly all rights to determine if and how you get to keep the account and the files housed there.  The practical effect of this is that when you have personally meaningful files stored there, most commonly photographs, you risk losing access to all of them if you do not have backups on your own computer or storage device, such as a flashdrive, hard disk, or CD.

Cloud storage companies are used by many people for their valuable photo and text files.  Some act simply as a storage service for files that you retain ownership of.  Others may simply be a location to display files but the company has no obligation to make those files accessible to you.

It’s complicated.  You must be absolutely sure you know what you are doing when you upload files to the internet, or you must be absolutely sure that you have those files backed up on storage devices within your possession.

Carelessness with your digital property might mean you actually lose your property completely, or that your loved ones cannot get access to it after your death.

If you have questions about your digital property and how to protect it, call the Austin Texas office of Pamela Parker.

Sarah Silverman’s Scary ICU Story

Comedian Sarah Silverman announced today (read her facebook post here) that she’s spent the last week in the hospital in intensive care after going to her doctor about a sore throat.  It turns out she had a potentially life threatening bacterial infection.  Her medical team knocked her out during the many days of treatment, so she was completely, and suddenly without warning, out of commission.  She calls herself “insanely lucky” to be alive.

Preparing for short term disability isn’t something most people think about, but it’s immensely important.  If you find yourself unexpectedly out of commission like Silverman did, without advance planning documents like HIPAA releases and medical and durable powers of attorney, your friends and family might have a really difficult time getting information about your condition, and on the much worse end of the spectrum, you might find that your rent or mortgage check didn’t get turned in and you now have either big late fees or, even worse, an eviction notice to deal with.

Just listen to the morning traffic report and its long list of accidents and you’ll know that many people are likely finding themselves in this vulnerable position.  You, however, can take care of this right now while you’re thinking about.  Call your local friendly lawyer and ask about getting your death and disability planning done now.

 

So Prince didn’t have a will. Does it really matter?

As always when a celebrity dies, a few days after news of the death you will find mentions of whether or not there was a will.  Why?  Who cares?  And beyond the public’s curiosity, does it even matter if there was a will?

Yes, there are a lot of reasons why it matters, and here’s a few of those reasons.

  • The public loves dirt.  Wills are filed with the court and become public.  So if a celebrity has a secret lover, or is disinheriting a child, or wants a long time employee to inherit everything, the public gets to know.  They want a window into the private life of high profile people, and a will often gives them that.  Which is precisely why most celebrities use trusts in addition to a will to protect their personal affairs.  Trusts are not available to the public, and the particulars of who gets what stay private.
  • We want to know if the celebrity was smart or not.  Anyone with an estate over about six million dollars has the potential to pay federal estate taxes, a tax that is in addition to ordinary income taxes.  Estate planning allows people with large estate to minimize the amount of estate tax paid when they die, in much the same way itemizing your tax returns can save on income taxes over simply taking the standard deduction.  It’s perfectly legal and quite prudent to do what you can to minimize the estate tax owed, but if no will or any other planning has been done, the estate may pay large amounts to the federal government that could have gone to the heirs. When a celebrity dies without a will, it almost certainly means that “too much” will be paid in taxes.
  • Lives are complicated, and not everyone you love is related by blood.  When there is no will, the only people who can inherit are those related by blood (or adoption in most cases).  Which blood relations inherit depends on the individual state laws, but no one who is not related can inherit from someone who is not a blood relation or a spouse at the time of the death.  Celebrities with large estates have the means to spread their love around, and they often do . . . but the court cannot award anyone, even those who were clearly close and clearly financially dependent on a celebrity, anything not provided for in a will or trust.
  • Are we going to remember the person, or the mess?  The old saying “death is a part of life” doesn’t just mean that all life includes death.  It also means that all the circumstances surrounding your own death become part of your life story.  If your death without a will, or with a poorly written will, means that your name is forever after mentioned with a tag line that goes something like ” . . . and s/he left such a mess when s/he died,” then you have obscured the good things about your life for eternity.  Who among us can think of Anna Nicole Smith without also thinking about the long and bizarre court battles over her estate?  Who among us doesn’t have at least one relative who died without a will and caused all sorts of stress and problems for the family?

It’s too early to know if Prince’s life and work will be marred by ongoing stories about his estate, but by failing to write a will he certainly did not protect his legacy the way he protected his music during his long career.  Even we less purple humans can protect what we have and those we love.

In case of parents’ death . . .

It’s not often that stories are written about the exciting world of estate planning.

Tonight’s episode of the television show “Blackish” revolves around the parents’ realization that they haven’t, but should, name guardians for their children in case of their own deaths.  The kids are now pre-teens and tweens, so the parents decide they need to get moving on this.  Good for them!

But then it devolves into arguments over whose family would make the better caretakers, and whose family shouldn’t even be allowed near the kids, and we see some of the stress that leads parents to put this off until the need for it disappears. Fortunately, there are ways around this.  Watch this short youtube video I made a couple of years ago for ideas on what to do when you don’t know what to do.

If you need to do this important planning, give my office a call to set up an appointment to get it done.

And if you decide to pretend like you are immortal, you can listen to this song I found on Youtube while looking for my guardianship video.

Are disability benefits taxable?

I have a good friend who works at the IRS, and every year I get emails from her for about a week before April 15 reminding to get my taxes done.  It’s not that she thinks I’ll forget, she’s just so excited about Tax Day she can’t help herself!

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Frankly, I don’t get nearly as excited about it as she does, but I do like to get them in on time and I really like to do them correctly.  So here’s the answer to the big question many families have when a member is receiving SSI benefits: do you have to file taxes?

SSI benefits, which are available to individuals over 18 who have a developmental disability and have never worked or who make only a very small income, (and some children under 18 whose families have lower incomes), are not taxable by the federal government.  If your child receives SSI benefits and has no other income, then it is not necessary to file a tax return.

However, if your child has other income – including social security benefits through a parent, then some of the income may be taxable and you may need to file a return.

For more information, you can check out IRS Publication 907.