Month: August 2015

I spoke at a meeting of special needs parents one time, 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.

What is the ARD?

An ARD (admission, review, and decision) committee is a group of people whose job is to design an individualized education plan (IEP) for each student who receives special education services. Parents are an important part of their student’s committee, but because there are so many rules that govern special education, it can be difficult for parents to give the meaningful input they want to simply because it is so easy to get lost in the educational terms and the endless paperwork and regulations.

Many parents work very hard to learn about the special education process, but even those parents can find ARD meetings difficult.  And for parents that have not had much opportunity to learn about their role, it can be almost impossible to come away from a meeting feeling like it went as well as it should have gone.

It is certainly helpful to have an understanding of special education law and educational strategies for your student’s particular needs, but you don’t have to know these things to make a positive impact on the development of the IEP for your student.  As a parent, one of your primary goals at the committee meeting should be to make sure that a range of possibilities are considered based on the individual strengths of your student.  The questions below are designed to prompt school personnel members of the ARD committee to think creatively about your student, without you, the parent, having to know a lot of technical information.  You have the best personal knowledge of your student’s strengths and weaknesses, and you have an overall goal in mind for your student, and these questions will help you pick the brains of those with educational training about how to best educate your student.

Six Questions for Parents to Use in the ARD Committee

Question 1. What would you need to make that happen?

This question is designed to be used in two different situations.

1.  When you have asked about something that the district has told you can’t be done, use this question to find out if there is anything that can feasibly be done to make it possible.  Just because something isn’t already being done, doesn’t mean that it might not be pretty easy to make it happen.
2. When the committee is going to do something, this question is good to find out if there are preliminary steps that will need to be taken, like providing training, purchasing materials, or adding additional personnel.  By asking this question, you can make sure that the preliminary steps are also written into the IEP and that a timeframe for completing the preliminary steps is discussed.

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.

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.

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.

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.

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.

Online accounts you have may hold some of your property (like photos or writings) or the site actually be the property (like domains names or income generating sites).   Your estate planning should consider your online accounts and how you want them handled in the case of your death.

Unless you leave access instructions with someone, the account may be lost entirely, or at best be difficult to retrieve.  The larger sites all have policies in place detailing how they handle requests for access from friends, family, or executors or deceased persons, and the policies vary widely – ranging from treating the account like a regular assett to requiring immense amounts of paperwork to grant access, to treating the account as the property of the site itself.

Facebook has a well defined policy for handling accounts of members who have died.

“When a person passes away, we memorialize their account to protect their privacy. Here are some of the key features of memorialized accounts:

• No one can log into a memorialized account and no new friends can be accepted
• Depending on the privacy settings of the deceased person’s account, friends can share memories on the memorialized timeline
• Anyone can send private messages to the deceased person
• Content the deceased person shared (ex: photos, posts) remains on Facebook and is visible to the audience it was shared with
• Memorialized timelines don’t appear in People You May Know and other suggestions”

A special needs trust almost always comes with a suggestion to write a “letter of intent” or “letter of instruction,” or some similar language.  The letter is meant to be information, instruction, and guidance for trustees and others who may need information on how to care for your child, how to use the money left for him or her, and in general how to manage their life.

It sounds easy – “write down all the information anyone would need to know about how to care for your child” – and yet, most families never get around to it, or do an incomplete job.

When your kids were little, you probably left some instructions for babysitters.  Maybe a few phone numbers, maybe you explained what activities would be good to do with them, or how to get them to stay in bed.  If you have special needs kids, you might have also left more specific medical instructions.  But you wouldn’t have left the house without giving your babysitter at least some information about how to take care of your child while you were gone.

And yet, parents of grown special needs children frequently “leave the house,” as it were, without providing information on how to care for their grown child.  It’s hard to get around to it, we feel like it needs to be perfect, we put it off until there’s time to gather all the information . . . and it sits uncompleted on the desk for years.

What finally got me to actually start writing things down was the Conga line.  At one point my son was often very aggressive, and the only thing that would get him safely in his room to calm down was to start a Conga line.  His autism and OCD made it impossible for him not to join the line, and he would dutifully Conga himself right into his bedroom, where we could keep him and everyone else safe until the aggression had passed.

And one day it occurred to me that if my husband and myself dropped dead, no one would know that was the way to handle his aggression.  And I would bet money that no behavior specialist would have come up with that suggestion.  But knowing this information was vitally important to his and others’ safety.

So I started writing.  Over the course of a few months, I compiled a pretty complete instruction manual for my son.

The Conga Line is important in my family.  What’s important in your family?

If you need help getting your instruction manual written down, why not use our Workbook?  Just answer the questions and fill in the charts, it gets you started and keeps you moving.

Parents can leave money to a child with a disability in a specialized trust, commonly called a special needs trust, without jeopardizing their medicaid benefits.  

Even a child that has money that is legally theirs, such as an inheritance, life insurance policy, or lawsuit settlement that went directly to the child (at any age), can preserve their eligibiilty for medicaid by moving the money into a special needs trust.

The catch is that a trust which holds money that belonged to the individual with the disability must provide for payback to the state medicaid agency if there is money left in the trust at the death of the individual.   A trust that holds money that came from other people does not have to pay back medicaid.

A smart way to maximize funds is to have two separate trusts if the individual with a disability has money to be put into the trust.  One trust would hold only the individual’s money, and the other trust would hold all money from parents, grandparents, inheritances, beneficiary designations, etc.

Because a trustee of a special needs trust has total discretion to whether to spend any money from the trust, the trustee of the non-payback trust can hold all money until the payback trust is exhausted.  In other words, spend money from the payback trust first, and only after that trust is depleted spend money from the non-payback trust.   This will maximize funds available for the individual and also allow money left at the end of the individual’s life to go to other family members or to a charity of the creator’s choice.

For more information about how to plan for your own special needs child, call the Law Office of Pamela Parker for an appointment (serving special needs families throughout Texas).  Dial 512-804-9934 to set it up.

When you do estate planning, one of the things you will be asked to do if you have children under age 18 is designate who you would like to be appointed their guardian if both their parents die before they are 18.  For some parents, the choice is obvious.  For other parents, the choice is obvious but they are nervous about stating that choice because it may cause hurt feelings.  Other parents are in disagreement about who to name, and some parents simply have no ideas on who they would want to be guardian.

In any of these cases, the result, too often, is that all planning stops and the wills never get completed.  All because of this one decision.

There are tips in the video below for how to choose a guardian if you are stuck.  And if you still can’t make a decision, then skip it.  Do everything else – wills, trusts, powers of attorney, etc – and leave the designation of guardian out.  Indecision in this one area should NEVER prevent you from completing everything else.

If you’ve written a will, your property will be given to the people you named – probably. At least, most of your property will be given to the people you named.  Property that no one knows exists, or property that no one can get to will simply languish, abandoned, getting older and more outdated but never decaying.

I’m talking about digital property, internet real estate that you can’t touch.  You can see it, if you know where to look, but you can’t touch it unless you have the magic password – or if not a magic password, a regular old password and a username.

Nearly everything we do online these days needs a password.  Without even realizing it, you could have acquired an array of digital accounts larger than the jewel collections held by emperors of old.  Out of curiosity, the other day I made a list of all my accounts I could think of.  Of course, I have accounts related to my business so a person who doesn’t use the web in a business of their own may not have this many accounts, but I still made my own jaw drop on the floor when I came up with a list of about 60+ real accounts (I didn’t include things like Runescape  and Neopets that I used to play with my kids).

Some accounts are important to your life, but not so important to your executor.  Your online banking account and utility accounts are examples.  You need them to conduct business but your executor will know you have these accounts in real life and can go straight to the institutions for access to information.  Other accounts are not this way.  For example, an account with an online newspaper to which you pay a subscription fee may only be known to you. That is, until the charges appear on your bank account and the executor has to go looking for the source.

As part of your estate planning, it’s a good idea to go through your digital accounts and online journals, blogs, shopping and sharing activities and make a list for distribution to appropriate people upon your death.  Review each category of online activity and determine IF, WHO, and HOW you want to leave password information.

Email: this is the lifeblood of your online world.  You probably have contacts in email that are not in any other address book.  You probably have people who only know how to contact you via email.  And if you’re like me, if you have “gone paperless” for any of your utility, financial, insurance, or other accounts, email may be the only way for your executor to figure out who you may owe money to and who may owe money to you.

Financial accounts: If there is a paper listing somewhere of what institutions have your accounts, your executor may not need online account access. However, if your family will need to continue the account, they may need more immediate access through your online account.

Utility accounts: Like financial accounts, your executor may not need online access, but if your family will continue to pay the account each month, it’s probably a good idea to give someone else access.

Personal accounts: There are numerous web-based activities and services that require passwords.  You probably have some mixture of social media, games, newspapers, chat boards, listserves, shopping, and other types of accounts.  Go through each of these accounts and determine if you need or want to let someone into them upon your death.  Some won’t matter, some you will want to pass on to another person, and some you may want to let die a quiet, anonymous death.

Business accounts: You may have accounts that are business –related even if you work for someone else.  Continuing education, business email, networking, etc may all have business purposes but be under your personal name.  You should leave someone the passwords to these accounts if they are important to the business, or if you have a credit card on file with them that will be making auto-payments that need to be stopped.

Because we add accounts and change passwords frequently, your digital assets need to be reviewed and updated more frequently than you review and update your will.  And by the way, you are reviewing your will every year, aren’t you?

Conversations with parents frequently start with this question, followed by various concerns they have about getting guardianship and then concerns about not having it.

The thing to remember about this question is that it is not a choice the parents make.

Guardianship is for individuals who do not have the capacity to properly care for themselves.

Texas law defines lack of capacity in the context of guardianship as “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.”

If your child meets this definition in one or more areas, then a guardianship is needed so that someone has the legal authority to do the things your child cannot.

If your child does NOT meet this definition, then guardianship is not appropriate no matter what the parent prefers.

That said, there are some individuals for whom it is difficult to say clearly one way or another whether they have capacity. But for most, there are few, if any, questions about their ability.

It’s very important for parents to understand that if their child does in fact need a guardian, but the child is still developing, at some point guardianship may no longer be necessary. This is not a lifetime decision. If your child is able to care for himself or herself at a later age, the guardianship can and should be removed. But a failure to appoint a guardian at 18 simply because of a possibility that it will not be needed later in life can put the child’s safety at risk.