Before you die…

Or this post could have been titled “Ease the burden of loved ones.”  Because I’m an estate planning attorney, the “Before you die…” advice I’d typically give would be to have a will or living trust plan prepared.  I certainly always recommend that advice.  This post, however, is different.

I recently read an article I loved, “You Need to Make a ‘When I Die’ File–Before It’s Too Late.”  The article speaks to the side of estate planning that I rarely participate, and that’s the grieving family part of planning for what happens after you die.  I help my clients get all the documents they need, and advise on decisions that need made.  What struck me about the suggestions in this article though were actions to take that speak to people you love.  The article adds two items to the typical estate planning checklist, i.e., an ethical will and letters to loved ones: “[W]here a legal will transfers assets, an ethical will transfers immaterial things: your life lessons and values.”

An ethical will supplants a traditional will, and might be used to explain why you chose one child to serve as executor over the other child, or why you chose close friends as guardians for your child over your siblings.  “Letters to loved ones” is self-explanatory, and I highly recommend it if you have children who might have difficulty remembering you if you die when they are young.

As the author states:

The point of all this is to make a difficult thing like dying or loving someone who is dying less difficult. In that sense, creating a When I Die file is an act of love. It will always be too soon to tell your story and let people know how much they mean to you, until it is too late.

If you have any questions about estate planning, email me at julie@juliemillslaw.com.

Service dogs in schools–a decision for the parent

My law practice consists of estate planning, probate, business, nonprofit, real estate and other transactional-type of areas.  However, an unadvertised part of my practice involves service dogs in schools.  This area of practice came about by experience (my knowledge of the Americans with Disabilities Act [ADA]) and happenstance (jumping into the service-dog fray due to representing someone pro bono after their egregious situation made its way into the news).

Children with disabilities have service dogs (SD) for a variety of reasons.  Service dogs aren’t just comforting pets that accompany a child to make him or her feel better.  In situations where I’ve been involved, the SD has been trained to detect seizures before they happen and alert adults, detect low blood sugar in children with diabetes, prevent elopement (wandering) of children typically with autism, calm “meltdowns” that are uncontrollable, and trained in search and rescue when children do wander away without being noticed.  This training usually costs five figures or more and is time-intensive.  Some of these situations, especially “wandering,” might seem strange to parents who don’t have children on the autism spectrum, or other special needs.  Elopement-wandering, for example, is when children–again, typically who are autistic–escape notice and wander off (elopement happens often in nursing home residents as well).  This can happen in a split second and, in fact, elopement is a leading cause of death in children with autism.  Death from elopement is caused mostly by drowning, then by being struck by a vehicle.

Parents obtain service dogs for a variety of reasons also, but for most, having a service dog with their child is a matter of life and death.  One mom had an elementary-age daughter, nonverbal, autistic, who kept escaping her classroom, then escaped the school building.  The Special Education Director assured Mom that the school could keep her child safe.  The very next week, this nonverbal 6 year-old escaped the school building, wandered a mile down the road, crossed four lanes of traffic and entered a 7-11 store to the shock of the employees inside, and the school didn’t notice her missing for over an hour.  This was life and death for this child, and Mom got a service dog.  In a class of 20 students, a teacher already has his or her hands full, which is why the parents got a service dog for their child with Type 1 diabetes, so that blood sugar issues didn’t go unnoticed and possibly become fatal.

For years, schools would bring the SD issue under determination of special education procedures, i.e., an IEP, under special education federal law, the Individuals with Disabilities Education Act (IDEA).  Typically, the school would deny the SD as not necessary to the child’s education.  Fortunately the U.S. Supreme Court weighed in, and recognized what some courts held, that a service dog is a civil right to the child and not a matter under purview of anyone, including schools.  Governing federal law–the Americans with Disabilities Act and the Rehabilitation Act of 1973–permit service dogs to accompany their person anywhere, with very rare exceptions.  Service dogs are working animals, not pets, and are actually considered durable medical equipment, no different than a wheelchair.  They are protected in public places by federal law, as opposed to emotional assistance animals (most remember the peacock on the plane).

Children with disabilities can be accompanied by their service dogs to school.  Period.  This is not a decision left to the school.  A service dog is a right of the child independent of their receipt of a Free and Appropriate Public Education (FAPE).  Whether the SD is medically necessary is not up to the school.  Obtaining a prescription from the parent for the SD, requiring insurance coverage, or requiring vaccinations beyond what is required of any dog are not permitted.  Rejecting the SD’s presence due to another’s allergies, or because of the dog’s breed, are also prohibited.  These are all reasons that were given to my clients by schools in service dog cases.  Parents ask permission from the school to permit the dog to accompany their child, but frankly this is not required.  It is certainly good practice to alert the school and work with the school to accommodate your child with the service dog.  My favorite court ruling mentioned the defendant-school stating that “we[staff] can help Johnny when he needs it, he doesn’t need the service dog” (Johnny isn’t his real name), to which the court responded that this was akin to saying about a student in a wheelchair, “we’ll carry him where he needs to go–he doesn’t need his wheelchair.”

The school has to provide reasonable accommodations and reasonable modifications to policies when a request for a reasonable accommodation is made by a student with a disability.  The Department of Justice (enforces the ADA) makes it clear that public schools are to make reasonable accommodations for service dog requests.  Schools perhaps justifiably analyzed service dog requests under the law that governs their daily work lives, the IDEA.  Fortunately, the Supreme Court realized that other federal laws govern students as well.

If you have any questions regarding service dogs, whether it’s school-related, or service dogs in public places or elsewhere, please contact me at julie@juliemilslaw.com, or (614) 519-8661.

 

Misconceptions you might have with estate planning

I have heard all of these misconceptions mentioned, including just today.

  1.  The attorney who prepared my will must handle my probate.  No.  Many estate planning attorneys prepare wills with an eye toward being called upon to handle a probate if the client dies, but there is absolutely no requirement that the drafting attorney who prepared your will must handle your probate.  This includes if the attorney who prepared your will holds your original will for safekeeping.
  2. My will dispenses with all of my property. Some documents override a will.  If you have a will, and you leave all real (house, land) and personal property to John, yet you have a deed that is held somehow with Jane, Jane will get the house because she is on the deed, not John, even though your will gives it to John.  Generally, titled and deeded assets go to the person listed on the title, or beneficiary designation, or deed.  “I leave everything I own to Bob.”  At my death, I have a life insurance policy that lists Joanne on the beneficiary designation.  Who gets my life insurance?  Joanne.
  3. I had a trust prepared so I don’t have to worry about probate.  It is so frustrating to see clients come to me with trusts they had prepared (and paid a lot to have prepared), only to learn that the trusts are unfunded.  What the client has, then, is a stack of papers that likely will not do what was intended.  Funding your trust involves titling or deeding assets to your trust.  You can accomplish this by naming your trust on beneficiary designations so that asset goes into your trust at your death, or having a “transfer on death affidavit” prepared that puts your home into your trust at your death.  For example, you would have a deed prepared granting your home from Jenny Jones to “The Jenny Jones Revocable Living Trust.”   However you accomplish it, a discussion of “funding your trust” should be a critical part of planning from your attorney.  If you have a trust prepared and then never prepare a new deed putting your home into your trust, and you die, your home will likely require a probate to be opened, defeating one of the important reasons for having a trust prepared (avoiding probate, privacy).
  4. A will (last will and testament) is different than a “living will.”  A last will and testament is what we think of as a “will”–we state who is to inherit what, we name a guardian for our kids if they’re young, we name an executor.  On the other very different hand, a “living will” is a healthcare document stating whether we want artificial life support if (1) we are terminally ill and death is imminent, or (2) if we are in a permanently unconscious state (i.e., brain dead).  This is popularly known as “pulling the plug.”

Contact me at julie@juliemillslaw.com to discuss estate planning.

What it’s like to be a court-appointed guardian?

The Canton Repository newspaper wrote an excellent article on serving as a court-appointed guardian.  The name used is CASA (court-appointed special advocate) or GAL (guardian ad litum).  CASAs/GALs are typically appointed for incompetent adults, or for children, in court proceedings.  In almost every court, CASAs and GALs are needed.  I like this article’s explanation of what the role requires, and especially how those who’ve served explain what they do. The article focuses on Stark County in NE Ohio, but the roles and experiences apply throughout Ohio.

Living trusts–do I need one?

You might see advertisements for seminars discussing trusts, and why you should have one.  For many people, a trust is a critical part of their estate plan.  For others, a trust might be unnecessary.  Perhaps you just need to change the way your assets are held, as I explained in this blog post.

However, if anything in the list below applies to you, then I recommend a living trust for you:

  1. You have minor-aged children and do not want them to inherit everything at age 18.” Most of us remember back to when we were 18, and how we were not experienced or mature enough to manage a large sum of money.  A living trust can pay for your child’s education, and make distributions at certain ages, ensuring financial support along the rites of passage in life.
  2. You have real property in other states.”  If you own a home or parcel of land or other real property in other states, ancillary probate would need opened in each state where you own property after you die.  This would be expensive and cause delay with distributing your assets.  Putting your real property in a living trust would eliminate the need for probate, and for ancillary probate in other states.
  3. You want privacy.”  Dying with only a will means anyone can drive to the courthouse and look up your will, including probate filings such as an inventory of your assets and their value, and your tax returns.  These are all considered “public records.”  For business owners, private business information could be made public.  A living trust is a private document, and if privacy of your assets is a concern, then you need a trust.
  4. You want to disinherit or there might be potential will contests.”  With a will, next-of-kin are required to receive notice that a will has been filed with the court, and a probate might be opened.  A relative who discovers he or she will not inherit might decide to contest the will.  Because a living trust is private and there are no notice requirements to next of kin, will contests can be avoided.

If you want to see if a living trust is right for you, contact me at julie@juliemillslaw.com.

Newly-divorced parents, and the start of school: create a “School Parenting Plan”

Now that the July 4th holiday is over, it signals to me that half the summer is over.  It wasn’t like this when I was in school, where we didn’t return until after Labor Day.  But now, July 4th seems to be summer’s midpoint.  With a new school year approaching, I’d like to offer some tips to newly-divorced readers who have children about to head back to school.

We all remember the anxiety of starting a new school year.  Adding divorce and two households instead of one results in compounded anxiety for children.  Parents must find ways to manage the routines of homework and after-school activities with an ex spouse in order to bring structure to their children’s lives.  To help children ease into a new school year, divorced parents should develop a shared School Parenting Plan.

First, start a plan together that deals exclusively with the school year.  Simply agreeing to develop this plan is the first step, since it shows that you both value your child’s academic performance, and can come to agreement on school-related matters.

Second, determine before school starts how you, as parents, will deal with the school.  Prepare the school and teachers with information about your new situations.  Will both parents attend parent-teacher conferences?  Will you attend all meetings related to your child together?  Will you request separate conferences and meetings?  Who will be dropping off and picking up your children if they don’t ride the bus?  Will stepparents attend meetings and conferences?

Third, develop terms and conditions with school work.  Be as specific as possible.  Will one parent assume responsibility for daily homework?  Will the other parent assume responsibility for larger assignments, research projects, the science fair, etc.?  What does “assuming responsibility” mean—the parent will work with the child, know what the school expects, help the child meet deadlines?  Will one parent be responsible for one child, the other parent responsible for another child?

Fourth, address parental responsibility with after-school activities and sports.  Will one parent be responsible for taking the kids to practices, the other parent to games?  Or one parent with the first four weeks of responsibility, the other parent will be responsible for the last four weeks of a sports season?  Mom is responsible for activities on Mondays, Wednesday and Fridays, while Dad is responsible for Tuesdays, Thursdays and Saturdays?  What about financial considerations—who will be paying for what?

Fifth, sync your routines as much as possible, and keep a shared calendar.  Try to set the same rules around homework, dinner and bedtime so going from the routine at Mom’s house to Dad’s house is more predictable.  A shared calendar, such as Google Calendar, means that everyone has the same expectations and knowledge regarding everyone’s school schedule.

Parents who work together on a shared School Parenting Plan ensure a more stress-free and seamless transition for their kids from summer to the new school year.  Do you want to develop a shared school parenting plan?  Do you have a plan that has worked well?  If you have any questions regarding school parenting plans, please contact me at julie@juliemillslaw.com.

A *Must* for Kids Going to College

Your child has selected a college.  In no time, your child will be starting classes.  Because he or she will technically be living at home (home over holidays and summers), perhaps still on your insurance, and possibly still driving one of your cars, it doesn’t really feel as if they’re off to adulthood, does it?

At age 18, under the law, they are adults.  (For children with disabilities, the age of majority might differ.)  They are legally no longer under your dominion.  They might even balk at that, since they are driving your car, to your house, covered by your insurance.  Regardless, they are legal adults.  And, as young adults heading off to college, they should have three critical documents: a HIPAA release, a healthcare power of attorney, and a financial power of attorney.  (In Ohio, some of these documents overlap.)

Many parents are genuinely shocked to learn that, when they call the hospital where they learn their daughter has been taken after being hurt, the hospital won’t release much information to the parents.  She might still seem like your young child, but she’s an adult now and the hospital needs a HIPAA release in order to provide you with information.  Or, the bank won’t permit you to access your son’s accounts to break a lease, sign for loan or scholarship documents, etc.  When I state “child” below, I am referring to an 18 year-old.

The Documents:

  1. HIPAA Authorization: most of us have heard of HIPAA.  The Health Insurance Portability and Accountability Act is a federal law that, among other things, protects the medical privacy of patients. If you are 18 or older, medical providers, hospitals, etc. will not provide your private medical information to a third party without a release from you.

Your child would list people he or she wants to be granted access to his or her health information, and your child would sign it.

  1. Healthcare Power of Attorney: a healthcare power of attorney grants the agent your child lists in the document with the power to make healthcare decisions for your child if he or she is unable to make them for yourself.  If your son is in a car accident and the hospital can pursue different courses of treatment, it is the healthcare power of attorney who will make the decision on what to do.  If there is no living will and end-of-life decisions must be made, it is the healthcare power of attorney who will make them.  Additionally, if your child is receiving care you believe to be substandard, or you prefer treatment at a hospital you believe is better equipped to provide, you can choose to change hospitals (or doctors) if you are the agent in charge of your child’s healthcare.

Your child lists one agent and two successors, then signs the document in front of two witnesses or a notary (Ohio requirements).

Note: in Ohio, a HIPAA release is included in the most recent version of Ohio’s Healthcare Power of Attorney.

  1. General Durable Power of Attorney (Finances): a financial power of attorney permits the person the child names as agent to make financial decisions on the child’s behalf.  If your child becomes incapacitated, whether it requires a lengthy hospital stay, or leg casts making it impossible to leave a house, a financial power of attorney permits the agent—likely you, the parent—to pay your child’s bills, enter or break a lease, manage bank accounts, pay taxes.  Likewise, it permits the parents to discuss other housing issues, educational and financial institution matters.

Your child lists an agent and two successors, and signs the document in front of two witnesses and a notary (Ohio requirements).

I recommend these documents for kids going off to college so that a parent can step in when needed.  Most attorneys offer these documents separately; and some attorneys offer them together as “New Adult” packages as I do.

Please contact me at julie@juliemillslaw.com if you want to arrange for these documents before your child goes off to college.

Benefits of a Trust

A trust is a contract, or a relationship, between the person who makes the trust (Grantor) and the person who manages the trust (Trustee).  These are often the same person, initially.  I make a trust (Grantor), and I manage the trust while I’m alive and competent (Trustee).  The Trustee manages the assets that are in the trust for the benefit of the beneficiaries, who are people the Grantor chooses to receive assets that are in the trust.  (I, as Trustee, manage assets in the trust such as investments, insurance, real property, etc., for the benefit of my children who are my chosen beneficiaries.)

Why have a trust?

The premier reason for a trust, in my opinion, is to maintain control from the grave.  For example, if you have assets such as a house and retirement plan, and if you have a minor-age child when you die, your child will inherit everything–value of your house, retirement, assets—when he or she turns 18.  It is likely that an 18 year-old person will mismanage (likely deplete) that amount of money.  If you had died with a trust, however, the trust could have reserved money for college, would distribute money at certain staggered intervals (my clients typically choose a portion distributed to the child at 25, then 30 and then 35).

Benefits of a trust

Beyond “control from the grave” for the benefit of children, however, are other important benefits to a trust.

  1. Trusts do not have airtight privacy control but, as private contracts, are typically private.  This is the opposite of probate and guardianship proceedings, which are both public matters.  With a trust, you can avoid both probate and guardianship.
  2. Avoid probate if you own property in other states (ancillary probate). For snowbirds and others who own homes and other property in another state, if the property is held by (deeded or titled to) a trust, then you do not have to have ancillary probate.  If you died owning a condo in Florida, you would have to hire a Florida attorney to probate your Florida property, unless the condo was held by the trust.
  3. A trust can serve as ‘contingent beneficiary.’ If you have a life insurance policy and name the trust as the beneficiary, then at your death the payout is to the trust which then manages that money according to the terms you set.  If the payout goes directly to a child, the money could be depleted, or attached by creditors (your child’s divorcing spouse, or a victim of car accident your child/beneficiary caused, etc.).
  4. Protect assets from surviving spouse. Assets in a trust are not part of a probate estate, which means that they are not subject to a surviving spouse’s right under law to elect against the will.  A trust reduces the chances that a surviving spouse can change the deceased’s estate plan after death, which can be important in blended families.
  5. Protect assets from creditors of Grantor’s estate. Assets in a trust are not part of a probate estate, and creditors generally cannot get to those assets.  If I died with creditors wanting to get to my estate’s assets, the creditors would not be able to get to assets in my trust.  Of course, there are some exceptions to this.
  6. Control the disposition of your assets. This benefit is similar to what I describe in the “Why Have a Trust?” paragraph above, but goes deeper.  You can determine the terms of the trust.  You can decide on whatever terms you want, except those terms that are against public policy (“nothing to my daughter if she marries someone outside of her race,” or “at my death dump the waste from my chemical company into the nearest river”).  Some terms my clients have chosen include distributions to a beneficiary with addiction issues conditioned on passing drug tests, certain incentive distributions for a beneficiary pursuing higher education or receiving certain grades, etc.  You can leave assets to a disabled beneficiary without jeopardizing that beneficiary’s government benefits (typically Medicaid and SSI).  You can provide funds for the down payment of beneficiary’s first house or a car upon graduating from college.  A trust can do most everything for a beneficiary that you would want to do if you were alive.

Trusts do cost substantially more than wills.  The cost of will plans is in the hundreds of dollars, where the cost of trust plans often starts at about $1,200.  However, probating an estate (with only a will) will likely cost more than having a trust plan prepared.

A trust is not for everyone.  I highly recommend trusts for people with minor age children, blended families, and for those who wish to maintain control over the disposition of their assets after they die.

To find out if a trust is for you, email me at julie@juliemillslaw.com.

School shootings: helping students with disabilities prepare

The title of this post is so disheartening.  The school shooting in Florida has schools assessing their security plans and emergency drills, which has become as necessary today as huddling in the hallway for tornado drills was when I was in school.  Schools are required by federal law to have emergency plans for students and staff with disabilities.  The best way to ensure that your school has an emergency plan for your child is to advocate for it.

My elementary-age child’s classroom practiced “The Sheep, The Shepherd and The Wolf” emergency drill.  The sheep are the young students, the shepherd is the teacher guiding them, and the wolf–the wolf is an active shooter who the teacher instructs the sheep to “stay out of the wolf’s way!”  This method of preparing for an active shooter is used to instruct young children in a non-threatening way.  Elementary children obviously cannot handle information about an active shooter drill that might be given to high school students.

As schools tailor emergency plans for students according to their development stage, the same tailored plans must occur with students with disabilities.  How will pulled fire alarms, shouting, shooting and other paralyzing noises affect a child with autism?  Or a child who cannot hear or see?  Would a child with developmental delays understand emergency instructions?  Plans for the most vulnerable should be tailored to individual needs, and practiced often.

This article in the Washington Post, “How can we prepare our kids with special needs for a school crisis” provides clear advice on ensuring that your child is included appropriately in emergency plans.  Among much advice, the article suggests:

  • Ask your school district about how they include students with disabilities in emergency plans (required by federal mandate).  Here is a sample plan.  In Ohio, school emergency management plans are not public record but discussions can and should happen.
  • Talk with the administrators in your child’s building about your child and their plan for your child, specifically.  If your child uses a wheelchair, are there steps to get outside at the door nearest your child’s room, and how will your child get outside?
  • Include instructions in your child’s IEP or 504 plan detailing what help your child will need in an emergency.  Make sure your child’s teachers are aware of what help your child will need.  This “Teacher’s Emergency Plan Procedural Checklist” should be provided to your child’s teachers.

Schools are required to have emergency plans for students with disabilities, but the best way to help protect your child with special needs is to make sure there is a plan in place that is tailored to your child’s needs, and known by teachers and administrators.

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

Study: Parents are not planning for future of child with disabilities

A recent “Disability Scoop” article reported on a study in the upcoming April edition of the journal Intellectual and Developmental Disabilities showing that few parents plan for the future of their children with disabilities.  This is not be surprising considering the complexity of planning involved, and the lack of resources afforded these parents.  However, the end result is still the same as with estate planning in general: the person who knows the child and child’s needs best is leaving the future of their child up to someone who does not know the child.  In other words, future decisions are left to the court.

Deciding on residential placement, guardianship, preparing a special needs trust—parents need help navigating this overwhelming journey.  As a special needs planning attorney who prepares special needs trusts, my focus is on securing the financial future of a loved one with special needs without jeopardizing means-tested benefits, typically, Medicaid and Supplemental Security Income.  Planning is particularly important since many children with special needs are living longer, and outliving their parents.

There is more to planning for your child’s future than securing his or her financial future with trusts, however, if your child has a disability.  Where will your child live?  Who will be his or her caregiver?  There are many options available to explore, but knowing where to start is key.  My recommendation is to start with The Arc: For People with Intellectual and Developmental Disabilities.

To learn more, or if you would like more information on special needs planning, email me at julie@juliemillslaw.com.