In the movie Rainman, Charlie Babbitt discovers he has an older brother with autism he never knew about after the death of their father, Sanford Babbitt. Charlie was three years old when his older brother Raymond was moved to a residential hospital for people with disabilities. From then on, Charlie is raised by his widowed father without any knowledge of the existence of his brother. Upon the death of his father and learning that he has been left almost nothing of the multi-million dollar estate he thought he was sole heir to, Charlie accidentally discovers Raymond, setting off a series of events that eventually lead to a full and tender relationship between the two brothers.
What did Sanford Babbit get right?
He provided money for Raymond’s care, and he appointed a person who was well acquainted with Raymond to look after him.
Sanford understood that Raymond would need lifelong care and that he would need someone to manage and spend his money for him. Upon his death, Sanford’s assets were placed in trust, and while we don’t specifically know from the movie whether it was a special needs trust or not, the money is clearly protected and designated solely for the care of Raymond. The trustee chosen to handle the money is the doctor who has looked after Raymond for 30 years, so he is well-acquainted with Raymond, his needs, and also with the priorities of his father, an important aspect of ensuring that Raymond’s life can continue with little to no disruption.
What did Sanford Babbitt get wrong?
Basically, Sanford failed to consider the possibility and impact of conflict on Raymond’s life. This left Raymond unprotected in some important ways.
Sanford’s first mistake was in keeping Charlie in the dark about his brother. Certainly there is no law that says parents have to tell siblings about each other, not is there a law that requires parents to leave their estate to their children, but by letting Charlie think he was an only child, Sanford ensured that Charlie would be surprised, hurt, and probably angry when he discovered he had been essentially disinherited. Grief is difficult for people to deal with, and it tends to magnify feelings. The most common approach to inheritance is to divide the parents’ estate equally among the children, so anytime a parent intends to leave their property differently it is helpful to keep the kids informed beforehand. Removing the element of surprise allows the kids to work through any feelings about the distribution plan without the element of grief muddying things up.
If Charlie had known in advance about Raymond and known that the bulk of his father’s estate was going to be set aside to care for Raymond, his behavior and reactions would not have been so disruptive to Raymond, even if Charlie was unhappy about his father’s choices, he would have had an opportunity to deal with those feelings without blowing up Raymond’s life and safety.
Sanford also left Raymond vulnerable by not setting up a court appointed guardianship for him. It is understandable that he probably felt that was not necessary due to Raymond’s living situation and his protection from outside influences, but it was the failure to have a guardianship that allowed Charlie to take Raymond with him to Los Angeles. The doctor who was Raymond’s informal caretaker had no legal right to prevent Raymond from leaving and no legal way to prevent Charlie from leaving with him. If the doctor had been the legal guardian of Raymond, he would have had the ability to involve law enforcement officials to find and return Raymond to his home. Without that, the doctor had few options other than initiating a guardianship proceeding at that time, which of course is what ultimately happens in the movie when Charlie himself initiates the process in order to seek to have himself appointed as guardian. But Raymond was left unprotected and vulnerable in the interim.
And finally, Sanford erred by denying Raymond the ability to have a relationship with his brother Charlie. Even under guardianship, individuals generally have a right, to the extent they desire to and can exercise it, to maintain relationships with friends and family. A guardian does not have the right to isolate a person with a disability for reasons unrelated to the individual. Sanford’s appallingly awful relationship with Charlie was between Sanford and Charlie. Raymond had a seperate and independent right to have a relationship with his brother, which was denied to him by Sanford’s petty actions.
If you have questions about preparing for your own special needs child’s future, give us a call or shoot us an email. firstname.lastname@example.org or 833-733-2668
A large part of special needs planning involves thinking about the living situation your child will be in when they become an adult. Many families never really think about it and simply continue on with their now adult child living at home in pretty much the same way they have been all along, but without the structure of school. Other families struggle to come to terms with the fact that their child has needs the family can no longer handle on their own. And other families prepare elaborate, detailed plans for what they see as an ideal living situation, if only it existed.
There is no such thing as an objectively good or bad choice for your child’s home. The safety and happiness of your child are prime considerations, but what makes your child safe and happy may not look at all like what makes another person’s child safe or happy.
Your child’s adult living situation will depend on a number of things:
- their physical and other needs
- the family’s resources
- the needs of other family members
- your child’s wishes
- available options
- and an infinite number of other factors
Even between two people with the same diagnosis, the “best” living situation for each of them will vary just as it does among you and your own friends. While you may long for a rural cottage home, your best friend from high school might be living in a highrise condo in the city. Our children with special needs are no different – there is no one right answer for how they should be living once they reach adulthood.
Here are some examples of what clients of ours have done:
- A family of a child with physical disabilities laid out a plan to modify their home and find caregivers so that the child could live with them as long as possible and still have mobility and room for equipment.
- A family of a child with severe behavioral issues found that an outside residential care setting provided the best solution for their child and family.
- A family with an adult child made plans to purchase adjoining homes so that they could maintain close contact while supporting semi-independent living.
- A family with an adult child that was able to articulate her own goals for herself helped her find a group home that had the support she needed but met her goal of having her “own place.”
- A family whose child had intensive medical needs determined that a nursing home setting near their family home provided the best care while allowing lots of family contact.
- A family with a special needs child built an apartment above their garage for the child to live in with some amount of privacy, while joining the family for meals and socializing.
- A family with aging parents focused on finding a variety of support people to provide both physical and supervisory supports to their adult special needs child so that the parents could phase out of direct care giving.
Some choices are obvious and easy, and other children’s needs present very real challenges in figuring out adult housing. Remember that nothing need be permanent – if you try something and it’s not a great fit, try something else. Housing and adult support looks different for everyone. Setting your adult child up in a home that is not with family is not right for everyone, but it is right for a lot of people and should always be at least considered. The reality is that most children with special needs will outlive their parents, and so will be in housing without family at some point in their lives. Finding that housing and preparing them for it while the parents are still alive and able to be involved may be a kindness both to the adult child and also to the rest of the family.
While home may look different for everyone, good planning is always needed to pull off the goal. When you’re ready to start, call or email us for a quick consultation on how we might be able to help. email@example.com or 833-RED-BOOT (833-733-2668)
Stick this chore under the heading “As adult as adulting can get.” You’re doing great at adulting if you have a retirement plan, life insurance, investments accounts, bank accounts, and the like. Checking the beneficiaries periodically is part of the package, though, so if you haven’t done it in a few years, it’s time.
Circumstances change, and even if you think you know who you named as beneficiaries, you’d be surprised how many folks check and find out its someone they forgot they had named, or thought they had already changed. If your retirement plans (401(k)s, 403(b)s, or IRAs, etc) are held or managed through your employer, they can probably help you find your designations. If they can’t find your designations, contact the company (or agency, if it is a state sponsored plan) and ask.
While your plans will go to your probate estate if there are no beneficiary designations or if they cannot be located, this is a more cumbersome and expensive process than having a beneficiary designation. There can also be unfavorable tax implications if the account passes through a probate estate, so it is worth the time to make sure you have and update beneficiaries. And while you’re at it, make sure you get a copy of the designation page to keep with your will so that your representative will have an easier time taking care of things.
Life insurance polices may also need to have beneficiaries updated periodically. A payout to a named beneficiary is typically much faster than having a policy distributed through your estate.
And finally, call your banks and check for beneficiary designations on all your accounts. It is fairly common for the paperwork provided upon opening an account to include a question about beneficiaries, and many people don’t even remember that they did this when opening their accounts. So take a look and make any updates needed.
If you need to do estate planning, or update a plan you did a while ago, we can help. To find out more, contact us at 833-RED-BOOT (833-733-2668) or firstname.lastname@example.org
You may be sick of the word “unprecedented,” (I know we are!) but the truth is this year has been like no other. If you haven’t before, you probably have been confronted with the reality that our lives and all the safeguards we have gathered around us are fragile and impermanent. Knowing how much our special needs kids depend on us will make you either freeze with fear or go into high gear trying to prepare for every contingency. If, like so many of our recent clients, this past year has caused you to think more than usual about making sure your “affairs” are in order, we have some suggestions for things to be thinking about.
- If you have an estate plan, get it out and look it over. Make sure it still fits your family’s needs.
- If it took you a while to find your estate plan, pick a good place to keep it from now on and let your trusted family members know where you keep it. Make a note in your calendar for a year from now to go look at it again, and tell yourself in that calendar entry where it is.
- Touch base with the people you have named as executor, trustee, agents in your powers of attorney, and any backup people you have named. Ask if they have any questions about what their duties are and what they should do when you pass. Your older and adult children especially want to know what you have planned – read one sibling’s perspective here.
- If you haven’t done your estate plan yet, take some time to think about what you want to do. We’ve posted some light hearted articles analyzing how famous movie deaths have been affected by estate planning choices. Seeing how estate planning can have consequences for your family might get your planning juices going. Batman, Cinderella, Ghost, Harry Potter
- Compile or update the non-legal information about your special needs child. If you suddenly come down with a severe fever and have to isolate and can’t communicate, will your child’s substitute caretakers have easy access to information about emergency numbers, medication, and daily care? Create a binder or accessible computer file with the information that will be needed quickly in a pinch.
Although estate planning may seem overwhelming, our attorneys can guide you through the process and provide ideas drawn from real life to help you put a plan in place and help you keep it up to date with your own changing circumstances. We’re here when you need us.
Cinderella lost her mother when she was very young. Her father remarried in an attempt to create a family for Cinderella, wedding a woman with two daughters of her own. Apparently things were hunky dory when when dad was alive, but sadly, he also died when Cinderella was still a young girl. At that point the step-mother became the step-mother that all step-mothers since have tried to disassociate themselves from.
What went wrong?
Cinderella’s dad, believing his second wife to be a loving mother to his daughter, left all his fortune in her control and his daughter in her care. However, step-mom prioritized her biological daughters and was imprudent with the money, leaving the family in less fortunate circumstances than they had been. In order to conserve the money that was left, Cinderella was turned into the family housekeeper, cook, and all around caretaker, while the step-sisters and their mother were pampered with what remained of the inherited money.
Cinderella’s dad may not have been able to know what would happen after his death, but he could have made far better preparations for his family, and his daughter in particular, that would have minimized the unexpected turn in his wife’s behavior. While step-mothers do not always turn on their step-children, they do sometimes run into other circumstances that can thwart a deceased parent’s intent. Severe illness, serious accidents, drug addictions, mental illness, early onset dementia, and other things can derail even the kindest step-parents. The desire to protect against unknown events is a great reason to set up safeguards in your estate plan when it comes to providing for minors or disabled children.
A better choice
Instead of leaving everything in the unfettered control and discretion of his second wife, Cinderella’s dad should have considered having a separate trust set up for his daughter, to be used solely for her needs or accumulated and given to her when she reached majority. This would have prevented the step-mother from diverting all the funds away from Cinderella, or given Cinderella a remedy if the step-mother failed to meet her fiduciary duties as trustee. He could have even had a trustee other than the step-mother, to provide an additional point of view in the care of his daughter.
With better planning on her dad’s part, Cinderella may have been able to see more choices for her future than merely securing a rich prince to care for her needs. After all, not everyone can get a prince, so we need to give our children the means to go forward on their own.
Planning matters. Blended families need extra special planning. When you are ready, give us a call at 833-Red-Boot (833-733-2668), email email@example.com , or make an appointment here to talk about your needs.
Couple in late twenties or early thirties have recently purchased a New York City loft and done extensive renovations. One partner is a money manager, the other is a potter. Most of the income is likely provided by the money manager, who is murdered and dies on the spot.
Unmarried, substantial assets, surviving partner without resources to purchase or maintain partner’s assets on her own.
In the supremely romantic movie “Ghost,” Sam Wheat and Molly Jensen are a visibly loving couple who have just moved into a New York City loft in a not-yet-gentrified area. We can surmise that they have purchased it, rather than rented, based on the extensive interior renovations they are doing themselves. Because we know that Sam works in a money management or investment firm handling exceptionally large amounts of money, and that Molly is a potter who is currently spending the bulk of her time working on their new loft, we can guess that Sam makes a fair amount of money and is either the sole or primary income for the couple. Since they have purchased and are working on the loft together, we can guess that they intend to be permanent partners, despite not having married.
Marriage gives each partner to the union certain legal rights to property held or acquired during the marriage. This protects partners whose cash earning, or cash resources are unequal, so that they can continue to have a means to provide for their needs until adjustments to being single can be made.
But when partners are unmarried, even if they intend to share their economic resources as well as their lives, the law does not recognize that partnership without other documents that acknowledge and create it. This means things like a will, or joint title to property, or payable on death and beneficiary designations on accounts are essential.
Here’s what would have happened if Sam and Molly did not do any sort of planning: If the loft was titled in Sam’s name alone because it was purchased with Sam’s money or based on his income, and he left no will, then the loft would legally pass to either his parents, any children he had with a previous partner, or his siblings. Molly would lose her home. Even if Sam had put Molly’s name on the deed as a joint owner with right of survivorship, if he failed to leave her any of his cash accounts in a will or with beneficiary designations, then she would have had to sell the loft for lack of money to pay the mortgage, taxes, and insurance.
Similarly, if Sam and Molly were both on the title to the loft and both owners of the cash accounts, unless the form of ownership specifically included a right of survivorship, then Molly would likely only own one half of everything after Sam’s death with his half going, again, to the parents, kids, or siblings.
Imagine Molly’s state when she realized Sam is present and wants to inhabit Oda Mae’s body so he can feel her again – instead of the iconic, bittersweet, love scene we all swoon over, most probably Molly would have been whipping his sorry ass for leaving her homeless and without immediate means to take care of herself. That would have been a very different movie.
Planning matters. When you are ready, give us a call at 833-Red-Boot (833-733-2668), email firstname.lastname@example.org , or make an appointment here to talk about your needs.
A lot of families find it helpful to hear what other families have done in their estate planning, and they get ideas from what others have done. It’s most helpful, I think, when you know something about the family itself, so let’s talk about Harry Potter. (We have previously discussed Batman here)
Who will care for the orphan?
Harry was famously orphaned as an infant when his parents were murdered by Voldemort. At the time, though, it was believed that Sirius Black had either killed them or was involved in their killing. Because Harry’s parents, James and Lily, had named Sirius as Harry’s godfather, under wizarding law that would mean he was the designated guardian for Harry in the event something happened to the parents, which of course, it did. But because it was believed that Sirius was involved in the killing, Dumbledore stepped in and took Harry to be raised by his relatives, the Dursleys, which in hindsight was a very bad deal for Harry.
[If you’re interested in more case studies and discussion about how the wizarding world handles it orphans, like Tom Riddle and Teddy Lupin, you might want to check out this chatboard. ]
In the muggle world, if a family had named a designated guardian for the child who was determined to have killed the parents, a court, much like Dumbledore, would likely determine that person not to be a suitable guardian, and refuse to appoint them, even though the parent’s had named that person. A judge will always look to see if the named person is otherwise suitable at the time the appointment comes along, thus protecting the child much as Dumbledore attempted to do.
While James and Lily could not have predicted that Sirius would be alleged to have been involved in their murder, they could have predicted that for a variety of reasons Sirius might not be able to serve as guardian when the time arose, and their best course of action would have been to name backup guardians. With an apparently large number of close friends in the wizarding world, naming a backup to Sirius would have allowed Dumbledore to consider other people as guardian before turning to the Dursley’s, and Harry might have been spared the closet and abuse he endured as a young child.
How to handle the money
Lily and James also would have needed to create a plan for the property and money they had, and how that would be left to Harry. Kids who inherit from their parents while still minors are never handed the keys to the bank account, but they generally do get full access and control of the property and money as soon as they turn either 18 or 21, depending on the state. In the wizarding world the age is 17, so Harry would have gotten full control of everything in the Gringott’s Vault as soon as he turned 17, which is a scary thought for most parents. Butter Beer for all!
The better way for the Potters to have done this would have been to appoint a trusted person – and some back up people since Sirius would likely have been their first choice – to act as trustee for the property until Harry reached an age that they felt he would be able to appropriately handle the money. Until that time, the trustee would make decisions about spending for Harry’s benefit. The actual age chosen by each set of parents depends on what they know about their child, their own philosophy of money and adulthood, and the amount of money likely to be available. The scenes where Harry heads to the Gringott’s vault at the beginning of each school year and grabs a bunch of money, with no supervision and no thought about budgeting or accounting, should make every parent cringe. Setting up your estate plan to avoid that is easily accomplished.
If you’re ready to avoid your own estate planning fiasco, call or email us for a quick consultation on how we might be able to help. email@example.com or 833-RED-BOOT (833-733-2668)
Special needs planning when your child has siblings
(This guest post was written by Cassidy Parker Knight, the adult daughter of one of our attorneys. )
If you’re a parent of a child with special needs, you’ve probably spent some time wondering about what your child’s future will look like once you’re not around to take care of them anymore – maybe a lot of time, and maybe more worrying than wondering. Where will they live? What money will support them? Who will take care of them?
You may not realize it, but if you have other kids who aren’t disabled, they’ve thought about it too. Of course, the reason you’re worried is because you won’t be around, but the reason your other kids worry is because they will be around. They may worry that you plan on your disabled child living with them and they don’t want that, or they may worry that any financial burden will fall to them, and wonder what happens if they can’t afford it. If they’re older, they may worry that there is no plan, and that it will be all on them to figure out after you’re gone.
I think I was in middle school the first time the thought occurred to me that someday, my parents would be gone and it would just be me left to care for my brothers. It’s overwhelming, at just 12, to start worrying not only about your parents dying someday, but all the lifelong responsibilities that will come with those deaths. And the older your kids get, the more aware they’ll become of what those responsibilities entail. I’ve spoken to siblings who made decisions about college, their profession, where they live, and whether they start families all based on their future responsibilities for their siblings.
For a parent, it must be overwhelming to think about planning a future for your child that you won’t be a part of. It can be easy to think that you’re shielding your other kids from that worry, but in reality, the opposite is true. Your disabled child’s adult siblings are your biggest allies, and filling them in on any estate planning you’ve done or wishes for the future you have will also be a kindness to them. It can also help you both to spot problems with the plan while you still have a chance to make your voice heard—for instance, if you want your child with special needs to live with your abled child and you learn that your abled child doesn’t want that, it’s probably important to you that you have a say in the alternative.
In all the conversations I’ve had with other siblings though, the most common worry I hear about the future is not about the responsibility or having to take care of their sibling—it’s about the uncertainty. If you have the estate planning under control, fill your child in, especially if they’re not really a child anymore. Let them know what roles they should and shouldn’t expect to play, and give them an opportunity to tell you whether that fits the role they want to play. Most importantly though, there should be a plan. If that part hasn’t been done yet, starting that process would really be the greatest kindness you could do all of your children.
One of our best known vigilante crime fighters, Batman, was orphaned at the age of 8 when his parents were murdered. He swore to dedicate his life to fighting crimes like that which killed his parents, and by the time we see him in adulthood he has spent millions of his billion dollar fortune designing and building crime fighting gadgets galore and an elaborate secret cave for operations headquarters. Let’s see how that might have come about.
What issues do the Waynes have?
They own businesses, so they need succession planning to make sure the company can continue running.
They have a minor son, so they need to plan for his care until he grows up and for how and when they will give him the money he will inherit.
What did they own?
We don’t actually know if the elder Waynes left a will or any other estate planning, but I would guess it was incomplete, at best, as I’ll explain below. We know that they had enormous wealth in the form of a number of profitable companies falling under the umbrella of Wayne Industries. There was money and potentially company ownership from Mrs. Wayne in addition to Wayne Industries, but it is less clear how that was owned and managed. This means that in addition to planning for the distribution of their personal wealth, Bruce’s parents also had to prepare succession planning for their businesses and business interests.
And of course, the most important piece of their planning, and where I suspect they failed, was in the management and distribution of their wealth and businesses to their son.
The Waynes appear to have had at least some succession planning in place for their businesses, as we know that the companies weathered the immediate period after their death and that they were thriving many years later when Bruce was flying about the town on his bat wings. This meant that the companies must have had either a corporate structure or a well written set of bylaws or partnership agreement for an LLC or partnership structure. In a corporation, the company itself has the ability to replace leadership, adjust to circumstances and operate independently of whether their officers or any of their shareholders died unexpectedly. The passing of shares is generally controlled by specifically created and adopted company policies, or controlled by state law.
In the case of an LLC or partnership, where there are typically fewer people involved in the running of the company, a plan setting out who owns shares versus who has the ability to run the company is important to prevent infighting or take over by inexperienced leaders. The Waynes do appear to have prevented the demise of their companies through advance planning of some sort. While Bruce, as their only heir (if they did not have a will), would have inherited their interests in the companies, as an 8 year old he would have been unable to run them, requiring the parents to prepare for the possibility of their early death by having other adults ready to step into company leadership roles. Written plans, along with properly adopted bylaws and policies within the company, would have allowed for this.
We know that Bruce inherited all or the majority of his parents’ estates due to the seemingly bottomless pit of money he has access to in later life. Most people do leave all or most of their estate to any children they have before considering gifts to other relatives or friends, and the Waynes seem to have followed this pattern. If they had no will at all, then in most states everything they owned would go to their child. But as an 8 year old, Bruce would not have been able to exercise control of any money or property at that time. The best way to provide for minor children is through the creation of a trust that will hold their inheritance until they are older and allow an appropriate person or trust company to manage the inheritance until the child can take over. If the Waynes did not have a will that created a trust for Bruce, a court would have created one for him. In that situation, when Bruce reached the age of majority, which today is usually age 18 but may have been 21 if we are talking about the Golden Age Batman, he would have been give all the fortune outright, having complete control over management and spending of the money as soon as he turned either 18 or 21.
If the Waynes had created a trust in advance, they would have been able to delay Bruce’s access to the entire sum of money, and they would have been able to allow time for him to learn how to handle such a large sum responsibly. Some parents direct the trustee to pay for higher education or down payment on a home or even a sum toward starting a business, but access to full control by the child is delayed until an older age or a life milestone, such as obtaining a college degree. If the amount of the inheritance is very large, it may be released to the child in stages, so that some money comes under their control while the rest stays in trust and protected from the missteps of youth.
Basically, you can set the trust up to do what you expect you would do for your child if you’d been alive and they asked for money.
I suspect that Bruce’s parents did not have a trust set up for him because it is hard to imagine that the ways in which he used his money would have been green lighted for loans or gifts by his parents. “Hey Mom and Dad, I want to spend a big chunk of your hard earned money to dig a giant hole under our tower (I’ll pay an engineer to make sure it doesn’t fall down) and then try to invent super high tech comic book toys so I can confront highly dangerous and violent criminals all alone. Is that ok?”
I like to think Mom and Dad would, at the very least, have required Bruce to provide a proof of concept and marketability study before backing this particular hobby. Which is why I’m pretty sure young Bruce had sole control over his money at about the same age many young men buy their first car and then roll it into a ditch.
If you want to keep your young super heroes safe and solvent and protected from their own passions, a trust for minor’s is definitely the way to go.