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.

Grandparent Visitation Rights in Ohio

Grandparents have rights to visitation with their grandchildren under certain circumstances. If a child’s parents are unmarried; if the child’s parents start divorce, dissolution, or legal separation proceedings; or if one of the parents has died, a grandparent can ask the court for companionship or visitation rights if the grandparent can show he or she has an interest in the welfare of the child. The child’s parents can object, but ultimately the court will decide on grandparent visitation based on what is in the best interests of the child.
 
Sometimes a grandparent with visitation rights believes these rights are permanent. Grandparents can have their rights terminated if a parent can show a change in circumstances that makes visitation something that is not in the child’s best interest. One example of a grandparent having visitation rights taken away is when their son- or daughter-in-law (parent of the child) remarries and the child’s new stepmother or stepfather adopts the child (stepparent adoption). Under Ohio law, the grandparent becomes a “stranger,” legally, to the child. The grandparent would have no rights to visitation, or anything, with the grandchild. Perhaps he or she could still visit with the grandchild, but this would be at the discretion of the parents.
 
Grandparents’ rights to visitation with their grandchildren in Ohio are not as strong as in other states. There are states that permit visitation for grandparents with a grandchild who has been adopted, but Ohio is not one of them. If you have questions, don’t hesitate to reach out to see if I can help at julie@juliemillslaw.com.

Collaborative Divorce: Best for All

Divorce is one of the most recognized life stressors.  According to the “Holmes and Rahe Stress Scale,” it ranks second only after death of a spouse, and is more stressful than imprisonment or death of a close family member.  These are stressors that can cause illness.

As much as many like to market divorce as “a new beginning,” I think most divorcing couples view it as an end, or at least a very impactful restructuring.  The divorce process does not help ameliorate the fight-centered, winner-and-loser view of divorce.  There is a better method to ending a marriage that is not adversarial: “collaborative divorce.”

With collaborative divorce, both parties sign a collaborative divorce agreement detailing what can be done and how it will be done.  If one party breaches the contract, then the party’s attorneys are prohibited from representing them in court.  There are other incentives to follow the agreed-upon rules.  The goal is *negotiating,* where both parties get their needs met and both parties compromise.

Divorce is a major life stressor for the children involved–watching their parents negotiate and restructure the family without acrimony should be the main motivation to seek a collaborative divorce.

For more information, read https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-282.aspx, or email me at julie@juliemillslaw.com.

Terminal condition. Permanently unconscious state.

No one wants to think about being gravely injured in an accident, or having a terminal illness.  If you have definitive thoughts about being kept alive–or not–on artificial life support, then you should plan for what you want done or not done should you become in a “terminal condition” or “permanently unconscious state” using a living will and a healthcare power of attorney.

Karen Ann Quinlan and Terri Schiavo were both women who fell into comas after differing medical events.  Both were put on artificial life support and received nutrition (feeding tube) and hydration.  Despite efforts from family members to remove artificial life support, both women lived for 10 years in a persistent vegetative state.  As with many people, neither woman put any end-of-life wishes in writing.

The stories of Quinlan and Schiavo scare people who fear living for years in a coma, kept alive by machines.  To make it known that you would not want to be kept alive artificially, you need to prepare a living will, which memorializes your end-of-life decisions in writing.  A healthcare power of attorney accompanies a living will, and provides for you to name an agent for making healthcare decisions for you.  This “agent” can make medical decisions if you are unable to make them yourself, but cannot override your end-of-life wishes in your living will.

A living will document makes your end-of-life healthcare wishes known.  A healthcare power of attorney names an agent (you choose) to enforce your living will and make healthcare decisions for you if you are unable to do so.  These documents should be a part of your estate plan, and should be freely to distributed to the people you name, doctors, and hospitals.

What Does the Executor of my Will Do?

The person you name as the executor of your will has several duties after your death.  Generally, your executor gathers and inventories your assets, pays bills, distributes assets, pays final taxes, and closes the estate.  In Ohio, this process typically takes no longer than 13 months.

Ohio requires that the person you name as Executor be mentally competent, at least 18 years old, and bonded.  In my experience, most wills waive the bond requirement unless the executor is a resident of another state.  The executor submits the will to the probate court and seeks appointment to administer the estate.

Once the executor is appointed, he or she must take possession of and inventory the decedent’s assets, submitting a list of assets and their value to the probate court within three months after appointment as Executor.  The executor must locate all heirs and provide notice that they might be entitled to an inheritance.  The executor must notify creditors of the decedent’s death, pay bills, and collect judgments and monies owed to the decedent.  The executor is responsible for preparing and filing federal and state tax returns.  After bills are paid, the executor can distribute assets.  Finally, the executor will provide a final accounting to the court.

These duties can be affected by the value of the estate, beneficiaries contesting the will, and other factors.  An executor can be compensated for serving, typically 1-4% of the value of the estate.