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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.

1. 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.
2. 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.
3. 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. 

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.

To celebrate the Blue Moon this month, we’ll be posting a new version of either “Blue Moon of Kentucky” or “Blue Moon” every day on our facebook pages:   Texas Residents  Massachusetts Residents

Check it out – and send us a note at legal@parkercounsel.com  or give us a call at 512-804-9934 or 413-203-9358 to rock this Blue Moon with your own estate plan.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Share your own favorite holiday photos below.

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