The term attorney-client privilege is in the news today. If you have an attorney, or if you are about to hire an attorney, or if you are thinking about an attorney, some of this news may be alarming to read. So before you go any further, I want to give you three important things to know about attorney-client privilege.
- Attorney-client privilege protects confidential information learned by an attorney in the course of consulting with, advising, or representing a person. Attorney’s can’t give good legal advice if they don’t have good information. Sometimes the information the attorney needs is something the client doesn’t want other people to know about – like how much money they have, or whether they gave a child up for adoption, or that their mother would make a terrible guardian for their child. The attorney client privilege is intended to make sure that people feel comfortable telling their attorney all relevant information so that the attorney can give the right legal advice to them.
- Attorney-client privilege does NOT protect communications made in order to plan, continue, or cover-up a crime. If a client confesses a crime to an attorney, that information is covered by attorney-client privilege. But if the client and attorney discuss how to commit a crime, or if the attorney gives advice on covering up a crime that has already been committed, those communications are not covered by privilege. An attorney cannot help a person commit a crime, and any communications surrounding such advice or assistance are not protected by privilege.
- Attorney-client privilege does NOT apply if the communications aren’t made in a confidential manner. The attorney-client privilege extends only to communications and information that is intended to be confidential. If the client discusses information in front of people who are not connected to the representation, it may not be considered confidential. Talking to or in front of the attorney’s staff is generally the same as talking to the attorney, but if a person discusses information in a public area where others can overhear, that may void the confidentiality. Clients sometimes want family members to sit in on meetings with their attorney, but doing so might mean that anything discussed in front of the family member loses its attorney-client privilege.
What does this mean for you today? It means that despite what you may hear in the news, attorney-client privilege is alive and well and will protect your confidential communications with your attorney. This also means that it is safe to answer any questions your attorney needs to ask in order to properly represent you. If you are hesitant to tell your attorney a sensitive piece of information, ask about confidentiality first and have your attorney explain to you how the privilege works in your specific situation.
Special needs parents worry. I say it a lot because it’s true. They worry about the day to day, they worry about money for therapies and equipment, they worry about school resources, they worry about finding good people to help care for their child, they worry about the future, and most of all, in the back of their mind where they shove the worries they don’t want to have to think about, they worry about their child being abandoned, neglected, and abused. They worry about the very thing that happened to 35 poor residents of a Chicago-area residential home this week. You can read the story here. But the upshot is that a worst case scenario happened and the owners of this residence simply locked the doors and left the residents alone. Abandoned, neglected and abused in the purest sense of those words.
The good news is that you have the power to eliminate that risk for your child if you plan properly. Even though your child will probably outlive you, you can still take care of your child long after you have left this earth. If you do what you need to do, there is every reason to believe that your child will never be one of the forgotten.
Imagine yourself having just completed all the the Four Keys to Special Needs Planning. Here are the four reasons your special needs child will never be neglected:
- People are involved with your child. You have created a community of caregivers who have a way to stay updated on your child, have been asked to participate in your child’s life in whatever way they like, have been given specific permission to communicate with the “official” guardian and trustee for your child, and, most importantly, have been made to feel like they are a part of the group who is responsible for caring for your child.
- Money is available for your child. You have made sure that your child will remain eligible for government benefits and that all other financial resources that may be available for your child are found, maximized, and properly managed.
- You have left instructions and details. You have left all the information anyone might need to be able to both care for you child and also to make important decisions about their life and care in a way that is important to you and that takes into account all your child’s strengths and preferences. You have made sure that this information is accessible and available at short notice whenever needed.
- The force of law is on your side. You have been to a lawyer and have gotten all the paperwork, court orders, and legal mumbo jumbo you need to ensure that your plans are carried out the way you intended.
It’s a big project. It will take you some time and it will take some money to complete this project, but it is within your reach. If you haven’t gotten our Special Needs Planning Blueprint yet, click here to request your free copy – Blueprint.
An often overlooked benefit of writing a will and putting together a well thought out estate plan is that you can pass on your values to your children, even if you’re not still physically present. The most direct way to do this is with what lawyers call the “contingent minors’ trust.”
Even a little can be a lot
If you were to die when your children are still under the age of 18, the law won’t let them have their inheritance directly, but will require it to be managed and directed by an adult until the child is 18. Unless you say otherwise, as soon as your child blows out those candles on their 18th birthday, they will be handed the whole caboodle to do with as they please. Even if you don’t think you have very much to leave to anyone, its likely you at least have a house with a small amount of equity, maybe a small employer provided life insurance policy, and maybe a car or two to sell. Even a very modest estate can wind up leaving $20,000 or so to your kids, and if you don’t think an 18 year old should be left unsupervised with $20,000, then you need to set up a minor’s trust.
What is a trust?
A trust is a way of owning property that gives the right to use the money to one person and the right to manage the money to another. In the case of a contingent minor’s trust, your will would say that if your children are under the age of 18 when you die, you want their share of the inheritance to be put into a trust for their benefit, to be managed by a person that you choose.
And then things get interesting. By creating a trust, you can direct how and when the money is used. This is how you are able to pass on more than just things, but also your values and priorities to your children. With the inheritance in a trust account, the age at which the child is given the money can be delayed to any age you choose, and the trustee can be directed to use the money according to your priorities.
Parent writes their will when the children are very young and parent has no idea what the child will be interested in as an adult nor does the parent have any idea how responsible the child is likely to be. The trust is written to maximize protection and also cover a broad array of possible expenses. As an example, the trust says that the trustee can spend money to pay for higher education expenses, vocational training, or a down payment on a home. The trustee will remain in control until the child reaches age 25, at which time 1/2 the remaining money will be distributed to the child, and the remaining amount at the age of 30.
Parent revises will when the children are in their late teens. Parent has been very successful in business and has an estate of about two million, meaning the children will receive a fairly large inheritance. Parent is concerned that children learn how to support themselves and manage money, so the trust is written to promote those goals. As an example, the trust says that the trustee may pay for higher education expenses as long as progress is being made toward a degree, or may pay for startup costs of a business with a well designed business plan. The trust may not pay ordinary living expenses more than one year after graduation. The child may become co-trustee at the age of 26 in order to learn money management skills with the guidance of the older trustee.
Your values in action
Both of these examples show the parent basically offering support to their child in the same way that they would if they were alive. If the amount of the trust is large, it can continue to age 30, 35, or older. Or if you believe in learning by doing, you can distribute parts of the trust directly to the child to learn or fail on their own. The trustee can be given the discretion to use the money for education and living expenses only, or to pay for travel and sightseeing or other life experiences besides formal education. In other words, your own priorities as a parent can be built into the trust.
To learn more about using trusts in your estate plan, send us a note or give us a call. We’re always happy to do short consults to help you decide if its time to bite the bullet and do your estate plan.
It’s January. The full moon is January 2 . . . and then on the last day of the month, January 31, we have a second full moon, a Blue Moon. You know some things only happen once in a Blue Moon, so this month we are celebrating the somewhat rare occurrence of the Blue Moon by encouraging folks to engage in another fairly rare event: the making of a will.
If you don’t have a will, you’ve got plenty of company. About 60% of adults in the US don’t have one, according to a survey by Caring.com. Not surprisingly, the percentage of people who do have a will increases with age, but since you have about a 15% chance of dying before the age of 50, having a will earlier rather than later in life is the best choice. And since the younger you are the less likely you are to have a will, that means that people who have young children are very likely to have no will or any other documents to protect their children if the parents die.
Why don’t most people have a will? Of those who don’t have one, the number one answer as to why (47%) was that they just hadn’t gotten around to it. In other words, they had no reason, they simply had not done it.
If you have children, and especially if you have a child with a special need who will never be fully independent, there should be more of a reason to avoid providing for their future care than simply “I haven’t done it yet.” Whatever your reason for not facing this, we can find a way to overcome it. The Law Office of Pamela Parker is committed to helping families prepare for the future of their children with special needs, whatever it takes. Tell us what is holding you back, and we’ll help you move around that block. Under the Blue Moon, anything is possible.
Check it out – and send us a note at email@example.com or give us a call at 512-804-9934 or 413-203-9358 to rock this Blue Moon with your own estate plan.
You love your child more than anything, even though their special needs can sometimes make life more tiring, more complicated, and more frustrating than your neighbors’ lives. It can also make your own life more stressful, because unlike your neighbors, you may need to take care of your child to the end of their life, even though you probably won’t live that long! There is a way to care for your child from beyond the grave . . . do you know how?
The Law Office of Pamela Parker is providing the following online educational seminars free of charge to residents of Western Massachusetts, including Amherst, Northampton, Springfield, and other areas of the local community. These seminars will help parents of children with developmental disabilities learn about and navigate current and future legal needs. As a parent of three children with disabilities, Attorney Parker is committed to helping families of all backgrounds help plan for their children’s future needs. With the opening of her Amherst office under the supervision of Attorney Hallie Hughes, she brings a proven formula to even more families who will now be able to address the most troublesome worry of all: What will happen to my child when I am gone?
All seminars are free and available online – if you can’t join us at the live time, all registrants will be sent a link to watch the replay at your convenience. Register Now
- Basic Support for Individuals with Developmental Disabilities:
Social Security and Medicaid
Seminar: December 19 at 12:30 pm
2. Additional Issues, Open Q&A January 2, 12:30 pm
3. Family Contributions for Future Support of Individuals with Developmental Disabilities: Special Needs Trusts
Seminar:January 16 at 12:30 pm
4. ABLE Accounts, Sources of Funding, Use of Funds in a Special Needs Trust:
Seminar/ Open Q&A January 30 at 12:30pm
5. Day to Day Care and Assistance for Individuals with Developmental Disabilities:
Guardians, Trustees, and Other Personal Care Helpers
My heart is breaking again. Several times a year, every year, I see stories such as this one – an aging or ill parent caring for a disabled child, has become isolated and hopeless that anyone will ever be able to properly take over the care of their child, and ultimately sees only one way out: to leave this world together with their child.
The latest story ended in even more tragedy than most of these stories. A mother facing cancer tried to end her life and her daughter’s life, but the mother did not die. The mother was found before death and saved, only to face criminal charges in the death of her daughter. Convicted and facing prison two years later, she was able to try again and this time succeeded in ending her life, as well.
You can read the story in the Chicago Tribune here.
Although it is easy for parents to tell themselves that they would never do such a thing, far too many parents face their child’s adulthood without adequate support and planning and cause untold stress for themselves during their own lifetime, as well as needless stress and chaos for their family after they die. And yes, a few become so overwhelmed that they make what they have convinced themselves is the best choice for their child.
Please don’t wait to learn about what you can do to prepare for the time when you are no longer able to personally care for you child. There are choices. There are safe choices. There are happy choices. But the longer you wait, the fewer choices you have.
Start here –Four Keys to Special Needs Planning – or simply call us for an appointment to sit and talk about your situation and how to put together a plan that will make sure your child is safe and secure until the natural end of their life.
Limiting driving privileges can be tough. The Alzheimer’s Association and Baylor Scott and White will show you when and how to handle this delicate matter. Check out the free program, Dec 7, in Austin. RSVP’s are requested by Thursday, Nov. 30 – lunch is provided free. Open the flyer below for details.
If your child with a developmental or other type of disability is not going to be able to care for their own personal and financial needs in adulthood, you will need to set up a system that can ensure they are cared for to the end of their life. That involves preparation in four key areas.
KEY ONE: Build a Community of Caregivers
Your child will need more than one person, more than a guardian, to help them through life. People have different roles and purposes in your child’s life and all need to be welcomed and “in the loop” on your child on a regular basis. Be sure to give everyone permission to talk to each other and speak up about your child.
KEY TWO: Financial Supports
Government benefits are the cornerstone for adults who have been disabled since childhood. SSI cash benefits from social security along with Medicaid will give your child access to a variety of supports designed to allow them to remain living in the community. Parents and other family members can also provide substantial amounts of money to supplement the government benefits through inheritance, life insurance, and pension benefits, but ONLY if its done the right way.
KEY THREE: Transition Tools
At various points in your child’s life there will be transitions from one caregiver to another. You must provide the information needed to make that transition a smooth one. Everything from lists of doctors and medications to contact information for family and friends to the parent’s priorities for the individual’s life should be written down and made easily accessible to anyone who cares for your child.
KEY FOUR: Legal Documents
The best made plans will only work as you intend if you provide the legal documents needed to enforce the plan. Court sanctioned guardians, special needs trusts with well chosen trustees, designations of agents and other legal planning tools are a must in order to ensure that your plan can work properly.
Worry weighs a lot
There is no reason to carry around a 15 pound bag of potatoes everywhere you go. Unless you are headed home from the grocery store or are on your way to a cookout, you don’t need the bag of potatoes until its time to use them. And if you don’t plan to cook potatoes, why in the world would you carry the bag around at all?
And yet, we parents of special needs children, we parents of children that we know will never be able to fully support themselves or fully care for themselves, we choose to carry around a bag of potatoes simply because we don’t know how to put it down.
So what is the bag of potatoes we are carrying? It’s the worry about our child’s future. It’s the worry about who will care for them, who will watch over them, who will pay for them – and who will love them the way we do when we are gone. That’s our own special bag of potatoes. And the burden of carrying it saps energy and strength that could be much better spent elsewhere.
It takes effort but its worth it
There are things you can do to prepare your child for life when you are no longer around. But first you have to know what they are, then you have to have some idea of how to do them, and then you have to prioritize it enough so that taking those actions you need to prepare your plan can bust through the already overloaded days that special needs parents have – hands on care, driving to school, to therapy, calling insurance companies, supervising, cleaning up after, trying to make a buck, and oh yes, washing your own hair every now and then and trying to get a little sleep at least every few days.
Your time is already completely taken up with getting through each day. But that is precisely why it is so important to hit overdrive for a little while and take care of your planning for the future. When you do that, you will actually free up the mental energy you have assigned to worrying about the future. And when you worry less, your body has less stress, and you actually feel better. All the things that accompany stress and worry, like tense muscles, stomach and intestinal problems, low energy, more illnesses, will be relieved a bit. Thinking about the future is not your only source of worry, but having seen the physical relief play out on my clients the moment they sign all their planning documents, I would bet that it is more of a worry than you have acknowledged to yourself.
Interdisciplinary problems need interdisciplinary approaches
I have to confess here, that as a mom of two special needs children of my own, these are the same planning things that I had to make myself do. My kids were teenagers before I shifted my law practice into this area, so I actually was exactly like all of you when my kids were young. I didn’t know very much about what I needed to do, but I did know I needed to do something. I wasn’t exactly sure how to best find out what that something was. I did know that estate planning was involved, so I chose a law firm and made an appointment and had a consultation and filled out some paperwork and signed some documents. But at the end of it I knew barely more than I had known going into it because the lawyers didn’t really talk to me. I explained my situation and they asked a few questions and that was about it. They did the legal actions they knew to do and that’s all that was dealt with. It had nothing to do with planning for my child, it had only to do with writing a will and a trust.
Think of it this way: if you or your loved has a cough, you go to the doctor, you get a diagnosis and you get a treatment of some kind. Simple response to simple problem. But imagine you or loved one – and some of you have been in this very situation – has several symptoms. Say, a cough, a limp, and an intestinal pain. But the doctor you go to only deals with coughs and doesn’t even have an interest in the limp or the pain. So you go to a doctor that treats limps, but she doesn’t want to know what the cough doctor said, it doesn’t have anything to do with her. And then you go to a doctor for the intestinal pain who says nothing is showing up on the tests, you must be ok, and you ask if the cough and limp could be related and the doctor says go ask the cough and limp doctor. You can’t get anyone to look at the entire problem, they are only willing to look at one individual body part for a problem that may or may not be related to the other problems but you can’t even find out because none of the doctors will consider the possibility.
This is what it is like to try and plan for a special needs child when you don’t have the right information because the situation hasn’t been looked at as a whole, interconnected puzzle. In isolation, you may have a series of good steps, but they may or may not all work together because no one has actually stood back and looked at the whole picture before starting to guide you through making a plan.
We see living people
This is why I built a law firm whose mission is to help special needs families. I didn’t create an estate planning firm, although we do that. I didn’t create a trusts firm, although we do that, too. Our firm does a lot of individual things, but they are all in service to what we really do: Planning for special needs families. Or, as I like to say, our firm specializes in putting down potato sacks.
You may not know how you can possibly prepare for your child’s needs long into the future, but we do. Let us help. Download the Special Needs Planning Blueprint on this page, attend one of our online workshops or Q&A sessions on the Four Keys to Special Needs Planning, or go ahead and schedule a personal consultation. Whatever it takes, we will show you how to get there.
Parker Counsel Legal Services can help you understand how to use special needs trusts and ABLE accounts together in a well designed plan to provide for the future needs of your child with a special need. We serve families in Texas, Massachusetts, New Jersey, and New Hampshire. Contact us for a consultation at 833-RED-BOOT (833-733-2668) or firstname.lastname@example.org