Overland Park Attorney

Special Needs Attorney Testifies Before Congress

Richard A. Courtney, President of the Special Needs Alliance (SNA) and principal in the Courtney Elder Law Associates section of Frascogna Courtney, PLLC, testified Friday, September 18 before the U.S. House Energy and Commerce Committee Subcommittee on Health in favor of the Special Needs Trust Fairness Act (H.R. 670). The bill would enable mentally capable adults with disabilities to establish "Special Needs Trusts" (SNT) on their own behalf. SNTs are a means of protecting eligibility for assets-based programs such as Medicaid and SSI (Supplemental Security Income), while holding funds for expenses that those programs fail to cover. The same measure was approved unanimously by the U.S. Senate on September 9^th.

Richard Courtney told the Subcommittee members that the legislation that originally created Special Needs Trusts (SNTs), the Omnibus Budget Reconciliation Act of 1993, "included a drafting oversight that seems to assume that a person with disabilities lacks the requisite mental capacity to enter into a contract… We believe it was … not the intent of Congress to deny a basic right to individuals with disabilities."

In its report on the testimony, The (Jackson, MS) Clarion-Ledger's "Courtney testifies before Congress on behalf of persons with disabilities," said that, at present, special needs trusts funded with assets of an individual with disabilities must be created for that individual by his or her parent, grandparent, legal guardian or a court. Because of this requirement, adults with no living parents or grandparents and no guardian are forced to petition the court to create a special needs trust.

Courtney based his remarks on both his professional experience as a special needs and elder law attorney, as well as his experience as the father of a daughter with cerebral palsy and learning disabilities. Speaking of daughter Melanie, he noted that she needs and is receiving attendant care under a Medicaid waiver program. Because the cost of her care and services is expensive, she must rely on programs such as Medicaid, as do many persons with disabilities.

Right now the law says that she can't create her own trust if she were to receive an inheritance or settlement—so she could forfeit her Medicaid waiver benefits that pay her attendant to her each day for a few hours.

An SNT would allow Melanie to pay for additional health care that's not covered by Medicaid, in addition to basics like clothing, transportation, and furniture.

Talk with an elder law and special needs attorney if you have questions about SNTs.

If you want to learn more about Estate Planing in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website.

Reference: The (Jackson, MS) Clarion-Ledger (October 18, 2015) "Courtney testifies before Congress on behalf of persons with disabilities"

 

 

Special Needs Trust Fairness Act Passes in Senate

People with special needs have won an important victory in the Senate where the Special Needs Trust Fairness Act passed unanimously. However, the fight is not over.

For people with disabilities, special needs trusts are often a vital way to protect assets and ensure that they have the resources needed to meet their expenses. It has become common for parents of children with special needs to make these trusts a part of their estate plans.

But if a person with special needs wants to set up their own special needs trust, they cannot do so without first going to court and going through a long, complex process to get permission.

The Social Security Act provision that allows for these trusts is written such that only a person’s parents or grandparents can create the trusts. So, disabled people without living relatives able to create the trusts for them face a long, uphill battle to create the vital trusts.

Thus, it was a resounding victory for people with special needs when the Senate unanimously passed the Special Needs Trust Fairness Act that would allow people to create the trusts for themselves.

Special Needs Answers reported this development in “Senate Passes Special Needs Trust Fairness Act; Focus Shifts to House.”

Unfortunately, this legislation appears to be currently stuck in a House subcommittee. It is not expected to make it out of committee in the House without additional support. People who are interested in seeing this legislation passed should contact their representatives and encourage support of the Special Needs Trust Fairness Act.

If you want to learn more about Estate Planing in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website.

Reference: Special Needs Answers (September 24, 2015) “Senate Passes Special Needs Trust Fairness Act; Focus Shifts to House.”

 

 

Estate Planning After your First Child Arrives

When young couples expect their first child, the to-do list never seems to end. From lining up in-home help to managing hectic daily schedules, the process can prove daunting. Then there's financial planning. Financial advisors often urge parents-to-be to prepare by budgeting for the future. They might need well over $250,000 to fund a child's upbringing until age 17. The best financial advisors also raise clients' awareness about the ultimate grim question: What would happen to your child if you die?

Young couples are advised to see an estate planning attorney in “When Couples Have Their First Baby, Advisors Deliver,”from Investor's Business Daily. The estate-planning attorney will help them address guardianship issues, draft a living will, and other related matters. Some people are reluctant to meet with an attorney. But ask yourself, "Do you want your in-laws to raise your child?" That question should make you want to designate a preferred guardian.

Life insurance and long-term disability coverage become very important. Some folks believe they are covered because they have disability insurance at work. This may not be enough.

Don't let financial stress add to the stress of raising a child. Sit down with a qualified estate planning attorney and go over some of the important issues that now must be addressed as you start your family.

If you want to learn more about Estate Planing in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website.

Reference: Investor's Business Daily (September 12, 2015) “When Couples Have Their First Baby, Advisors Deliver”

 

 

Special-Purpose Trusts for the Mentally Ill and Those Suffering from Addiction

It was the summer between her sophomore and junior year at the University of Wisconsin-Madison when Patti Sacher’s daughter Keisha had a breakdown. She had taken LSD at a Grateful Dead concert one weekend in 1989. When Mrs. Sacher called to check on her that Monday, Keisha wasn’t making sense. “She was hearing voices after the weekend, and her thoughts were disjointed,” Mrs. Sacher said of her daughter, who was then 19. “We couldn’t understand what she was talking about.” Keisha became more involved with drugs during the fall. By January, her parents were receiving alarming phone calls from their daughter’s friends. Keisha ended up being hospitalized that winter, but she wouldn’t come home. She was an adult, and her parents had no legal power over her. After a year, she acquiesced and returned to New York city.

The New York Times recently published “For Parents With Troubled Adult Children, Financial Hurdles Abound,”which talks about what can be done to help a loved one stricken with mental illness. It noted that there are many painful and emotional issues in situations of mental illness and addiction that affect children, but also there are financial plans that parents can use, such as a Special-Purpose Trust, that provides care for the suffering child and peace of mind for the parent.

A special-purpose trust is different from a special-needs trust, which is frequently implemented to pay for additional needs of those receiving government benefits where the government has strict restrictions on the recipient’s assets. A special-purpose trust can be used to provide children more of the life they might have enjoyed without mental illness or addiction, and it allows the parents the flexibility to make changes with the distributions.

Special-purpose trusts are more complicated to establish than regular trusts because of the powers they give to the trustees and the restrictions they place on distributions. However, the toughest part of creating a special-purpose trust is getting parents to accept them as necessary: parents must first acknowledge that their children will never fully recover.

Parents are advised to set out some very specific criteria for distributions into trust documents, for example, staying on medication or staying sober for a certain period of time. In addition, those with a family history of mental illness and addiction issues should get a power of attorney and health care proxy for children over 18 who are away at college. In the event that something happens to their child, the parents will have access to medical records and will be able to help.

Work through these issues with an experienced estate planning attorney to make sure that you are doing your best to help your child.

If you want to learn more about Estate Planing in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website.

Reference: New York Times (August 28, 2015) “For Parents With Troubled Adult Children, Financial Hurdles Abound”

 

Mr. Cub Alleged to Have Dementia when He Signed New Will

The estranged wife of late Cubs legend Ernie Banks claims the Hall of Famer was diagnosed with dementia days before he signed a will that left his entire estate to his caregiver.

Ernie Banks was in the middle of a long and somewhat contentious divorce with Elizabeth Banks, his fourth wife, when he passed away in January at age 83. The court petition, which was recently made public, says that Elizabeth Banks disputed a March ruling that validated Banks' will. That will left all of his estate to his caregiver, Regina Rice.

The Chicago Tribune reported that Elizabeth Banks argued in the filing that Ernie’s health was in a rapid state of decline since the preceding October when he was injured in a fall. Rice, who was a longtime friend to Ernie Banks, took him in to live with her at her home in Plainfield, Illinois while he was recovering.

Elizabeth Banks alleged in those March proceedings that Regina Rice coerced the ailing baseball legend and “Mr. Cub” into making changes to his will to give Regina all of the assets. However, two paralegals testified in the case that Ernie had the capacity and was of sound mind during the notarization of the will changes. The witnesses also said Ernie also said to them that he didn’t plan to leave money to his family.

Regina Rice has told the media that Ernie’s estate was worth a little more than $16,000 when he passed away.

For more on this story see a recent Sporting News article titled “Estranged wife claims Ernie Banks had dementia when he signed will.”

Make sure that your estate plan is legal and solid, so that there are no conflicts over your assets. Contact a qualified estate planning attorney to discuss your situation.

If you want to learn more about Estate Planing in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website.

Reference: Sporting News (July 27, 2015) “Estranged wife claims Ernie Banks had dementia when he signed will”

 

 

Planning for Alzheimer's

Every year, people in the United States spend millions of dollars to treat and care for Alzheimer's Disease. As people continue to live longer and longer than ever before, even more money is projected to be spent in the future. This means that everyone should make plans as if they will get the disease.

Alzheimer's is a scary disease for most people. It strikes at the core of who we think we are. People with the disease often forget their friends and family members.

Anyone who has ever known someone with Alzheimer's knows how frustrating this disease can be for the patients and their loved ones. A recent article in UT San Diego, titled "Legal, financial planning for Alzheimer's patients," details some steps people can take to be prepared should they or their loved ones ever get the disease.

The key thing to know is that you need to prepare ahead of time.

People with dementia normally lack the capacity to sign legal documents. That means you cannot make plans after you get Alzheimer's. If you wait, then a court might be required to make plans for you.

The basic documents you need to prepare in advance (i.e., right now) include a general durable power of attorney and a health care power of attorney. These two documents allow someone of your own choosing to handle your financial and health care matters when you are no longer able to do so.

While you are at it, make sure you have an up-to-date estate plan (i.e., a last will and testament, or revocable living trust), to provide for the efficient transfer of your assets upon your death. Your beneficiary designations should be reviewed, too.

If you or your loved ones have not yet planned for the possibility of Alzheimer's, then visit an experienced estate planning attorney without delay and get everything in order.

For more information about Estate Planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website.

Reference: UT San Diego (October 23, 2014) "Legal, financial planning for Alzheimer's patients"

 

 

Setting Up Care for Your Elderly Loved One

Concern about mom or dad’s health and well-being is top of mind for many baby boomers today. Worrisome signs of your parent’s frailty, progressive memory loss or the decline in health require more and more of your help and attention. But what if you live a good distance away? Whether you live an hour away, in a different state, or maybe even in another country, caregiving at a distance presents very real challenges.

Luckily a recent PBS article, titled "How to care for your aging parents from a distance," assures us that there is no one right way to be a caregiver, as everyone’s situation is different. Caregiving responsibilities can entail at least information gathering and the coordinator of services.

One step is to ask your parent(s) to provide you with information to locate their important records, phone numbers, email addresses and other essential contact information.  This includes legal documents like a Durable Power of Attorney for Health Care and Durable Power of Attorney for financial matters. These should be created before a health condition makes it impossible.

The original article suggests that to keep things in order, long-distance caregivers will benefit from keeping a Care Notebook. This is a central place to maintain all critical information and can be digital or just a regular old three-ring binder with pocket dividers. Do not forget current info on your parent’s prescriptions. Also, if you hire professional caregivers for your loved one, keep a separate notebook to document medication administration and other basic physical and mental health status information. Instructions to paid caregivers should be in writing.

PBS provides a few other important suggestions, such as: 

Communicate. Whenever possible, include your loved one in the decision making process—especially choices on care and housing. Consider his or her expressed preferences and respect their values, even if they are not yours.

Education. Read up on the available care and services. Every region and location is unique in the types of services that are available, but some are found throughout the U.S.

Take Care of Yourself. Caregiving can be stressful, and you should have a support network for yourself.  Hire help and get other family members involved. Attempting to do it all yourself is not healthy or safe for you or your loved one.

Changing Needs. Remember that your loved one's care needs may change over time, and original article stressed that it is never too early to consider possible future needs. There are many options to be considered; making informed, well-thought-out decisions about your parent’s care are vital, and your elder law attorney can help.

The realization of your new role as a caregiver can be stressful. The good news is that you can contact a qualified elder law attorney to get more information and the answers you need.

For more information about Estate Planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website.

Reference: PBS (October 9, 2014) "How to care for your aging parents from a distance"

 

 

Rhinestone Cowboy Now Needs Long-Term Care

 Glen Campbell's wife has issued a statement explaining her decision to place the singer in a long-term care facility and expressing hurt over criticism of the move.

Kim Woolen Campbell, Glenn Campbell's wife, recently told The Associated Press via email that the country and pop music legend was suffering from his Alzheimer's disease to such an extent that he needed access to medical care 24 hours a day. The 78-year-old singer's doctors encouraged her earlier this year to discontinue care at the family's home and move him to a care facility. He has been suffering from the degenerative neurological condition for about three years.

This move was publicly criticized by Mr. Campbell’s eldest daughter, Debby.

As reported by The Associated Press, in an article titled "Glen Campbell's wife defends decision on long-term facility care," Kim Campbell wrote in the email that it was "crushingly sad" to see her husband's health deteriorate "but indulging those feelings does not help him."

His daughter Debby Campbell told Country Weekly in June that she was opposed to the decision, and that she did not feel Campbell's family was spending enough time with him in Nashville.

No doubt with a star of this magnitude, the details will come out about how he planned for his long-term care. You should take some time to talk to your own estate planning and elder law attorney to cover just such circumstances.

For more information about Estate Planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website. 

Reference:  Associated Press (June 19, 2014) "Glen Campbell's wife defends decision on long-term facility care"

 

 

What's a Letter of Intent and Do I Need It?

One element of estate planning that is little discussed but can be very useful is the Letter of Intent. Generally contained within an estate plan, a Letter of Intent contains instructions on how the estate and the decedent’s executors should care for a child, particularly a child with special needs.

A recent LifeHealthPro article, titled "Letter of intent: a useful component of an estate plan,"raises some interesting issues you may not have considered when creating your formal estate plan. For parents, their children are the most important part of their lives. With that in mind, a Letter of Intent can be a very important document to ensure special care for your children. Accordingly, consider including such a letter as part of your estate documents.

The article advises that there's no drawback to writing one either. However, there are a few things to keep in mind.

Far from being a “silver bullet” for all of your estate planning “must-haves,” there are some things that a Letter of Intent can't do. For example, a Letter of Intent is really a "blueprint" for other estate planning documents.You can use the Letter of Intent to provide detailed instructions and preferences for the care of your child, and those wishes can then be reflected in your wills or a trust to guarantee that they’re carried out. Financial decisions should be a reflection of your vision of the child's care—not vice versa.

Another thing to note is that the letter can be drafted right now, regardless of where you and your child are in life. "It’s not just that you never know when disaster will strike, although that’s always a good reason to be prepared," the article says. Understanding a child—especially one with special needs—is a lifelong journey. Start the letter now and add to it as the years go on.

Get your child involved, as it is his or her life, and he or she should have a voice. The LifeHealthPro article confirms that the child will appreciate being permitted to be a part of the important decisions about his or her future.

One last thing to remember: this is your opportunity to record everything about your child.A Letter of Intent can do this and more—it can let others know about his or her personality, likes, dislikes, strengths, and weaknesses. This will be critical information for those individuals whom you entrust to potentially have an important role in the care of your child.

For more information about Estate Planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website. 

Reference: LifeHealthPro (June 3, 2014) "Letter of intent: a useful component of an estate plan"

 

 

Having "The Talk" With Aging Parents In Overland Park, KS

Do your aging parents resist any talk about the future or giving you any of their financial or legal information?  You’re not alone.

Natural disasters do occur and conversations about these events can segue to the subject of personal healthcare, elder care, and emergencies.

A recent Forbes article, titled "Three Ways To Get Resistant Aging Parents To Talk About The Future," suggests bringing up emergency preparedness as a way of getting to the information you need for care of an aging parent otherwise.

There are some basics everyone needs to have, and it's your mission to wheedle it out of them!

Start a conversation with an aging parent with what they would want you to do if there were a disaster—the Forbes article says that it’s much less threatening to think of these kinds of events more than personal medical emergencies because they're happening to someone else and perhaps far away. The discussion may start with a question, such as "Mom, what would you want us to do if you were laid up in the hospital by a tornado (earthquake, flood, etc.)?

Ask how they would pay their bills if they were left unconscious as a result of a disaster. This can help you create a list of bank accounts, and other important information. Also, if your parent doesn’t have a Durable Power of Attorney for finances, the article says this is an ideal time to get that done.

Leverage the news headline to get the information: it's timely, frightening, and real. The news of a disaster can help you get to know your parents’ wishes. If you don't already have them, solicit the names of his or her primary care doctor, attorney, and the financial advisor (if engaged by the parent).

It's all in the same discussion.

One more thing: see if there is a neighbor, friend, or someone nearby who could help if your parent were in distress and was unable to call for help.

For more information about Estate Planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), please visit my Estate Planning website. 

Reference: Forbes (September 21, 2013) "Three Ways To Get Resistant Aging Parents To Talk About The Future"