If you died now, where would your kids go?

It is difficult enough thinking of dying, but trying to imagine someone else raising your children makes the thought even more difficult.  Every responsible parent needs to confront this difficult issue.

If you and your spouse (or the child’s other parent) died in a simultaneous manner, where would your children go?  If you do not have a will that nominates a guardian, the court will decide.  Do you want to let a judge who does not know you or your family, make this important decision?  For most people I know, that answer is “no.”

The most important step you should take is nominating a guardian for your children, and preferably two alternates, in a will.  Why is this important?  Your nomination will:

  • reduce the delay in appointing a guardian because the court will not have to consider factors and then make the decision;
  • reduce the potential for family disagreement among those seeking guardianship if no one is named, and spare the children of dealing with family discord;
  • provide for a smoother transition for children and family who are grieving;
  • avoid appointment by the court of people you believe are undesirable in raising your children.

Letting your children know who you have named might ease anxiety in situations where a parent is faced with a terminal illness or other medical conditions that might cause them to fear their future (where will we live?  Who will take care of us?) should a parent die.  I’ve seen children struggle with these worries more than usual with parents in the military, parents who travel frequently for work, or parents in high-risk professions such as first responders.

Death is a tough topic, but you must confront it if you have children.  Parenting involves making tough choices, including naming a guardian who’ll parent your children if you cannot.

Contact me at julie@juliemillslaw.com if you want to discuss nominating guardians for your children.

Special education win for students and their parents with U.S. Supreme Court decision

Two days ago on March 22, 2017 the United States Supreme Court ruled unanimously in Endrew v. Douglas County that children with disabilities are entitled under the Individuals with Disabilities in Education Act (IDEA) to receive an educational program reasonably calculated to make meaningful progress.  Why is this important?  Because in more than half the country, the standard of only “some” or “minimal progress” was required.  Therefore, this decision resolves conflicting federal circuit courts between those requiring only “some [or minimal] progress” (1st, 4th, 7th, 10th, and 11th circuits) versus other circuits requiring “meaningful progress” (3rd, 5th, and 6th circuits).  Ohio, fortunately, has followed the “meaningful progress” standard (Ohio is among states in the 6th Circuit).  This decision will have a larger impact on our western neighbor, Indiana, which employs the “minimal” or “some progress” standard, since Indiana is among states in the 7th Circuit.

This decision will have a profound impact on students with disabilities and their parents, schools, attorneys involved, and hearing officers.  One can no longer show some or trivial progress—meaningful progress is now required.  What does this mean?  Students will no longer be advanced without making any progress.  There must be meaningful progress, which is objective and data-driven.  Data will be required to show progress, or lack thereof, rejecting primary reliance upon subjective reports from educators about whether progress is occurring.  Data is objective and better suited to support either side’s argument, including when progress is actually happening to the objection by a parent.

What else does Endrew mean?

  1. In my opinion, Endrew spells out substantive obligations in the IDEA versus being merely a set of procedural requirements;
  2. Emphasis will be placed on parents and the school to develop an IEP that focuses on progress and advancement in the general curriculum, if the child is fully integrated in a regular classroom;
  3. Parents have complained that expectations for their child with special needs were set too low, too often. Now that the IDEA has more substantive “teeth,” the child must have the chance to meet challenging objectives;
  4. In my opinion (again), the burden of proof is now on the school for proving the sufficiency of an IEP;
  5. The Court has set a clear and workable standard now for lower courts to apply, ending various applications employed by various circuits.

Contact me at julie@juliemillslaw.com with special education questions.

STABLE accounts–savings accounts for people with disabilities

A child or adult with a disability can now save money without jeopardizing means-tested benefits with Ohio’s STABLE account.

“ABLE” accounts permit an individual with a disability to save money without having the savings jeopardize certain benefits such as Medicaid and Supplemental Security Income (SSI).  Historically, to receive Medicaid, SSI, and other benefits, you had to have a very minimal amount of savings, typically $1500-2,000.  Now, an eligible person with a disability can save money without worrying about losing these necessary benefits.  Ohio’s version of this special savings account is called a STABLE account.

STABLE account specifics:

  • STABLE accounts permit you to deposit up to $14,000 a year into an account that you choose from accounts with varying investment options.
  • To be eligible for opening a STABLE account, the person with a disability had to have onset of the disability prior to age 26.
  • Additionally, the person must be either entitled to SSI, or entitled to Social Security Disability Insurance (SSDI), or have a condition listed on the Social Security Administration’s “List of Compassionate Allowances Conditions,” or can self-certify (see website for requirements to self-certify).
  • You do not need to reside in Ohio to open a STABLE account—enrollment is open to eligible people nationwide.
  • A person with a disability can open their own account. A parent, legal guardian, or agent in a power of attorney authorizing actions with STABLE accounts can also open an account for an eligible person.

Contact me at julie@juliemillslaw.com with any questions.

Happy National “Everything You Think Is Wrong” Day!

March 15th is National #EverythingYouThinkIsWrongDay.  Let’s celebrate by reading some things that many people believe, but are wrong:

  1. “Living together for 6 years means we are married.” No, at least not in Ohio.  Common law marriages in Ohio are recognized only if they occurred prior to October of 1991.
  2. “Contracts must be in writing.” Oral contracts are enforceable in many situations.  Exceptions exist, including most contracts for real property.
  3. “The United States Supreme Court has the final say of all laws in the U.S.” The U.S. Supreme Court is the final decider of federal laws and controversies involving federal law.  State supreme courts have the final say over state law.
  4. “I can’t be arrested for public intoxication if I’m on private property.” You can be standing on your front porch, beer in hand, and if you are creating a disturbance you can be arrested for public intoxication.
  5. “I don’t have a will.” You might not have prepared a will, but every state has a plan for your asses should you die without having prepared your own will.
  6. “I don’t need a will because my spouse will get everything anyway.” Not likely true if you had a child together, or you have children from a previous relationship.
  7. “My donations to a nonprofit are tax deductible.” In order for donations made to a nonprofit to be tax deductible to you, the nonprofit must have tax exempt status from the IRS.  Most commonly this is 501(c)(3) status.
  8. “If I’m arrested I’m entitled to one phone call.” This is partly true.  You have a right to one call to an attorney.  Generally the police allow an arrestee to call family or a friend but it is not a right.
  9. “The First Amendment protects your free speech from everyone.” This is a very common myth.  The First Amendment only protects your right free speech against the government, and even that protection has limitations.  People getting fired from a private employer for what they (employees) say is permissible, despite a hundred Facebook commenters lamenting that this person’s right to free speech has been violated.
  10. “If the house is in just my name, my spouse can’t get it if we divorce.”  Not true, typically.  Things acquired during the marriage are subject to equitable division and distribution.  And, equitable doesn’t mean equal, it means fair according to the judge.

Guardianship over an adult child with a disability–is it necessary?

For parents of a child with a disability, who have made every decision for that child for his or her entire life, they can be surprised to learn that they need to obtain guardianship over the child to continue such decision-making once the child turns 18.  Should you seek guardianship of your disabled child?

Guardianship takes away all of the choices a person can make in life.  It is a serious matter and can be time-consuming and costly.  There is court oversight and the guardian is responsible for financial accountings and other reports to the court.  In general, before pursuing guardianship over someone, consideration should be taken of all less restrictive alternatives.

A person, typically a parent, interested in pursuing guardianship must petition the court.  Clear and convincing evidence must be presented that shows the judge that the person lacks understanding to make or communicate decisions or is unable to manage his or her property and affairs effectively due to disability.

Each state has different standards when pursuing a guardianship.  Ohio has new rules pertaining to guardianships.  The Ohio Revised Code’s laws pertaining to guardianships (and conservatorships):  http://codes.ohio.gov/orc/2111.  If you have any guardianship questions, contact me at julie@juliemillslaw.com.