On this day in 1791, the first ten amendments to the United States Constitution, known as the Bill of Rights, became the law of the land.  In 1941, Franklin D. Roosevelt issued a proclamation designating December 15 “as a day of mobilization for freedom and for human rights, a day of remembrance of the democratic and peaceful action by which these rights were gained, a day of reassessment of their present meaning and their living worth.”

THE BILL OF RIGHTS – FULL TEXT

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Key One of the Four Key Special Needs Planning System is to create a community of caregivers. You’ll probably need a guardian and a trustee, but other people can be involved in less formal ways.

One way to use people who are interested in your child is to use them as extra eyes to watch out for problems.  If your child is frequently alone with a caregiver, or lives in a group home, ask people to visit at random times.  This not only gives your child visitors, but it gives you an opportunity to check in on how your child is being cared for and helps encourage caregivers to pay closer attention to your child.

But It Was More Personal Than I Thought

I get asked sometimes why I do this kind of law, and my answer always involves the fact that I have special needs kids of my own, and I know how important the things I do are to the quality of life for the kids and the family. But my passion comes from a deeper place.

If you’re still trying to figure out what a special needs trust is, whether you need one, or what to do after you have it, register for the online webinar that will give you answers to everything you can think of and more.  Tuesday, October 20, 2015, two times to choose from – noon central time and 8pm central time.  45 minutes jamp packed with information.  Register here for

The Ins and Outs of Special Needs Trusts: why and how to leave money that will pay for the things that make life good for your special needs child.

Ever wonder what will be said about you at your funeral?  Lots of people, especially as they get closer to the end of their lives, think about the legacy they will leave, and hope that they will be remembered for something good.

The Dodo bird went extint hundreds of years ago, in the 1600’s.  Despite that, it has managed to be remembered to this day and most people are aware of the Dodo bird and it’s extinction.

Twenty years ago the American Bald Eagle was near extinction.  When people became aware of how endangered it was, there was much talk of the beauty, the symbolism, the spirit that would be lost if it became extinct.

And therein is the difference and the lesson for us: the Dodo Bird is well remembered, becuase it could not fly and became extinct.  It is famous for being extinct and not being able to fly.  The potential loss of the Eagle worried people becuase of what would be lost to us.

It has been my experience that the biggest advocates of writing a will are adult children of parents who died without one.  Family gatherings inevitably turn eventually to the mess of an estate that was left behind.

Family gatherings of individuals who left a will often include fond, touching, and funny remembrances of the deceased individual.

If you die with a will, no one will ever mention it again once the estate is settled, but if you die without one they will talk about nothing else whenever they talk about you.

Do you want to be remembered like the Dodo bird, for what you failed to do?

Or do you want to be remembered for how you lived your life?

A Fearless Family understands that the future is unknown, but it does not have to be scary.

Take your average family with your average young kids.  The family probably expects their kids to grow up, get a job, have a house, a family of their own, and generally wander about in the world in a similar fashion to the parents.  The parents understand that they don’t know what kind of job their child will have, where they will live, if they will get divorced after they get married, if there will be grandkids, whether a serious auto accident will change plans drastically, whether the new tax rates will affect their child’s savings, if the child will progress steadily at their place of employment or get laid off and have to start over in a new job or line of work, and the parents do not know specifially what anything in their child’s life will look like in the future.

And yet, the parents will almost certainly send their kids to school, start a savings account for them, teach them how to talk to people, apply for jobs, hwo to treat their family members and stay in touch, cook, shop, and operate a bank account.  The parents set in place all the tools and skills they can muster to put their children in a position to handle whatever comes at them in the future.

Parents universally understand that the future is unknown.  And yet, they are seldom scared of it because they are able to equip their children with what they need to handle what comes up.

These same parents are often paralyzed by fear of the unknown, however, when it comes to their special needs children, who may not be able to navigate the world and its unknowns by themselves. For some reason, the unknown becomes scary, often debilitatingly so, when parents think about the future of their special needs child.  And so, instead of putting together the tools and skills and supports that their special child will need, they hide their head and throw up excuses for why they can’t get to it right now, all in an effort to flee from what scares them.

A Fearless Family accepts that the future is unknown.  They accept that there are tools to prepare their special needs child for the future just as there are tools to prepare their other children.  A Fearless Family accepts that while these tools are different, they are just as useful and just as necessary and that they make the future no less unknown, but a whole lot less scary.

And a Fearless Family plunges into the fear so that it can be released.

Do you know what “estate planning” is, exactly?  Basically, it is your  plan for what will happen if you die or become seriously disabled, and it should answer the following questions:

Who Will Administer Your Estate If You Die?

In other words, what person do you trust to carry out your wishes, make sure things are wrapped up properly, and that your heirs are properly taken care of?

Who Will Care For Your Minor Children And Any Adult Disabled Children?

You should name the person or people you want to raise your children and provide for their care if you and their other parent both die. If you are the guardian of yoru adult disabled child, you can also name the person you think should take over that role if you die.

Who Should Get Your Money and Things?

You should have a basic distribution plan for the things you leave behind, including money, retirement plans, your personal property, famly heirlooms . . . and only with a will can you be sure that things will go to the people you want to have them.

Who Should Manage the Money You Leave to Your Children?

You may not want the same person who is the guardian of your children to also manage their money. You can name trustees to manage anything you leave for your minor or disabled children.

Estate Planning should also include naming people to help take care of your own affairs if you become disabled.

Once all of these questions have been answered, the proper legal documents will be created so that you can be sure that your wishes are carried out.

Check out our Fearless Family Legal Documents package, designed for families that have children with disabilities.

. . . but for special needs parents, they are still sweet.  For some kids, the first steps never come at all, but other firsts arrive on their own unique schedule and we relish every one of them.

That said, there are steps parents should be taking as well.  I was reading a post this morning on a business blog called “51 Weeks of Pace: Leap!”   It was about a planning technique that requires you to start taking steps before you have THE PLAN, as they put it.  In otherwords, doing is sometimes more important than knowing everything first.

Ultimately, the writer, a business coach, challenged readers to ask themselves “what can I do to build my business today” and to make the answer a priority on their to do list.

It’s a challenge I give to parents – if you died today, would you have everything in place you need to give your child the best chance at a safe transition to new caregivers and the most financial security you have to offer?  

If the answer is no, then ask yourself, “what can I do today to make progress toward that goal,” and make your answer a priority on your own to do list.

If you don’t know what to do to make that progress, you can read through or listen to the resources in this blog, or give my office a call and schedule an appointment to talk about where you are, where you need to be, and how you can get there.  We help families all over the state of Texas, and we can help yours too.

I have a friend in San Francisco who, like me, is an estate planning attorney (because, you know, attorneys all hang out together).  Unlike me, her practice focuses on elder law, so whereas my clients are mostly young parents or parents who are, shall we say, in the happy middle years of their life, her clients are very elderly.  This means that she winds up attending more than the average number of funerals and memorials.  Aside from a funeral director or the Ruth Gordon character in “Harold and Maude,” my friend has probably observed as many funerals as anyone you’ll ever meet.

So when she called me yesterday to tell me about a memorial she had attended over the weekend, it got my attention.  Every life and every service she attends is important to her, but because she attends so many, it’s not the kind of thing she usually even mentions to people who are otherwise unconnected to the family. But this time, she couldn’t wait to tell me about the service.

She said she could not remember ever leaving a funeral before feeling inspired the way she did after this one.   The joy and honor that people seemed to feel at having been part of his life overshadowed the sadness at his passing.  There seemed to be no loose ends in his life.

It got me thinking.  Most people want to matter and to know that their death will make a ripple on the pond.  The irony is that the ripple most people leave is not that of a quiet breeze blowing across the water; it’s more like the tumultuous froth caused by a drowning frog.

Imagine you are attending your own funeral.  Do you hear people quietly noting how beautiful the service is or telling a cute story about something you did?  Or do you hear tense mutterings about what will happen to your family now? Wouldn’t you rather hear your friends admiringly relate how you left everything planned out and taken care of?  Wouldn’t you like to relieve your family’s stress at one of the most stressful times of life, and wouldn’t you like to relieve the periodic stress you yourself feel whenever you remember that you need to “get around to doing a will?”

Your life can be in an inspiration, and it probably already is.  Don’t let the good life you’ve been leading be forgotten in the stress of a messy death.  Make an estate plan, a trust, and a plan.  Be Fearless.

Photo by Madison Lambeth

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.