Author: Pamela

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.

The special needs community is truly a community.  Community with shared experiences, shared values, and shared understanding of what it means to have and be responsible and to love a child with special needs.  Each member of the community may have their own unique details, but the community understands and can support each other with a common voice of having been there in one way or another. 

Writing a will and preparing a trust for your special needs child is a caring, compassionate, and smart way to help your family transition to life without you, whenever that time comes.  There is enormous value in doing these things.

But what if the transition that comes first is not life without you, but life without your child?

I am a member of a large, online parent group whose members all have children with extensive medical needs.  I have had the privilege of watching many times as a parent shares with us the decline and impending death of their child.  I have felt the warm rush of care and support from the community surround this parent as they help their child prepare for the passing, while the community helps the parent prepare for the passing.  Many of the members have lost their own children, others simply understand, because they know it could as easily be their child.

Grief over a death is much harder than people think before they experience it.  And while it can make a person feel very alone, the experience of grieving is truly universal, and the support of a community can be invaluable.

In central Texas, the wonderful organzation  The Christi Center provides grief support of all kinds.  They also have a page of resources and a list of similar grief support groups in other states.   They also provide help for friends of family of a person who is grieving, with suggestions for what to say and things to do.

Life is not something we do alone.  Grieving is part of life, and should not be done alone, either.

I wish that estate planning were called something else.  Estate planning implies that it is about what happens to your property when you die.  That is, of course, part of what estate planning attorneys do for clients.  But a lot of what estate planning attorneys do is designed to prepare clients for other events, other than death, that happen in their life.

Perhaps personal legal planning is a better term for what I and attorneys like me do for people.

An estate planning attorney will typically help a client prepare a plan for the distribution of their property when they die, but the attorney will also help the client put together plans for medical emergiencies, long term health crises, short term medical issues, and the potential needs that come with aging.  This post discusses three common documents an estate planning attorney will help clients create: the Medical Power of Attorney, the Directive to Physicians, and the HIPAA Release.  The names of the documents and the following discussion is based on Texas law, but all states have similar documents.

MEDICAL POWER OF ATTORNEY

The Medical POA is used when a person is not conscious or not competent to make medical decisions for themselves due to medical or physical problems.  The document allows an individual to designate in advance the person (and backups) who medical personnel are authorized to go to for decisions about medical treatment and care.  It is only used with the individual cannot make their own decisions.

Married persons usually designate their spouse, followed a parent or a grown child, but it can be any person in any order.  The document is especially useful for persons who have longtime partners but are not married, and for persons who have a chaotic family where no clear representative would emerge.

DIRECTIVE TO PHYSICIANS

In Texas, this is the official name of what is commonly known as a living will.  This document allows a person to state their own wishes about end of life care in the event they have a terminal condition and are unable to state their own wishes as to care and treatment.  It overrides any person designated in a Medical Power of Attorney, but only for end of life decisions.  Basically, the document lets you state whether you wish to continue treatment or to receive comfort care only.

HIPAA Release

Very strong federal privacy laws protect a person’s medical information from being released without the person’s consent.  This document allows a person to give consent to anyone holding protected health information to the person or persons named in the release.  This document only gives access to information, it does not allow the named individuals to make any decisions.  In the event of a serious medical situation, it will allow doctors to talk to the people you name about your condition.  It will also allow your helath insurance company to talk to the named persons about your coverage and claims matters.  In the event you have a serious medical situation, there may be a friend or family member who would be willing to help with insurance issues and general hospital matters, and naming them in this release will allow them to be able to help.

These three documents will make a difficult situation much less stressful to deal with than if they have not been completed.  It’s a life planning matter, a personal legal planning matter, that you will benefit from and your family and loved ones will be grateful that you completed.