Understanding the ABLE Act

Estate Planning Practice Group

Estate Planning Practice Group

“A major victory for the disability community, ABLE, for the first time in our country’s policy on disability, recognizes that there are added costs to living with a disability….For far too long, federally imposed asset limits to remain eligible for critical public benefits have served as a roadblock toward greater financial independence for the millions of individuals living with a disability.” – Michael Morris, Executive Director of the National Disability Institute

Savings accounts for individuals with disabilities will soon be possible without risking their access to federal benefits. On December 19, 2014, the Achieving a Better Life Experience (ABLE) Act was signed into law by President Barack Obama after receiving huge bipartisan support in both the U.S. Senate and House of Representatives. The ABLE Act is an amendment to the federal tax code that eliminates the $2,000 cap on conventional savings accounts for individuals with disabilities to qualify for Supplemental Security Income (SSI) and Medicaid.

Eligibility for many federal benefits, such as SSI, SNAP and Medicaid, requires that individuals meet a means test. Part of that test includes that an individual can report no more than $2,000 in savings. However, such a uniform test failed to recognize the additional costs of living with a disability. The ABLE Act seeks to remedy this unfairness by allowing a tax-advantaged savings account to supplement federal benefits, rather than supplanting them. Continue reading »

My Health Care Wishes: New App

Estate Planning Practice Group

Estate Planning Practice Group

When you need access to your health care power of attorney and living will, it is often stored in your safe deposit box or safe at home. Personally, I keep my power of attorney on a USB drive on my key chain. This has come in quite handy a few times.

Recently, an app was released called “My Health Care Wishes” at www.myhealthcarewishes.org. The Lite version, called the Personal Advance Directive Manager, allows individuals the ability to store and share their advance care directive plus one additional document with health care providers. Personal & Family Advance Directive Manager is a more robust pro version available for a small fee. It allows “unlimited storage of people profiles and documents.” Continue reading »

Costs of Raising a Child with Special Needs: The Story of Finn

Estate Planning Practice Group

Estate Planning Practice Group

Meet Finn and his family. Finn is a real boy with autism.

Finn’s father, Jeff Howe, shared his family’s story in “Paying for Finn: A special-needs child” for CNN’s Money Magazine. According to Howe, Finn is representative of 8% of all U.S. children because he is a child with special needs: he is autistic. His household is one of 25% of all U.S. households with a family member with special needs.

As the Howe family has learned, raising a child with special needs comes at great cost, both financial and emotional. Howe goes into great detail explaining his family’s journey with Finn. He does not hold back from sharing the specifics of his family’s finances and the costs associated with Finn’s care.

The financial burden for raising a child with special needs is staggering, to say the least, even for a family with considerable means. For families with less financial resources available to them, the financial burden is even more overwhelming. Continue reading »

Lessening the Stress of Travel for Travelers with Disabilities

Estate Planning Practice Group

Estate Planning Practice Group

Flying can be a frustrating experience for anyone, but for those with disabilities it is even more difficult. Knowing what rights a passenger with disabilities has is the first step to ensuring the next flight is as stress-free as possible.

Booking a Flight

When booking a flight, travelers with disabilities are generally not required to provide pre-flight notification with a few exceptions:

  1. Traveling by stretcher;
  2. Using an electronic wheelchair (or other device with special batteries); or
  3. Requiring connection to the airplane’s oxygen system during flight.

If none of these categories apply, the airline cannot deny travel for not being informed of a passenger with a disability’s travel plan. However, notifying the airline may ensure any desired accommodations are met with less stress on the day of travel.

Federal law has made provisions for people with disabilities who want to travel by airplane through the Air Carrier Access Act (ACAA) of 1986. The ACAA required the Department of Transportation to develop regulations to ensure non-discriminatory treatment of travelers with disabilities.
Note: While travelers with disabilities do have accommodations for air travel under the ACAA, they are not required to accept any or all accommodations.


Travel With an Attendant

Each airline determines whether an attendant is required, except in the following situations, which always require an attendant: Continue reading »

iPad Apps for Autism

Estate Planning Practice Group

Estate Planning Practice Group

If you have someone with autism in your family, a tablet computer, such as an iPad or an Android tablet, may be a good investment.

Tablet computers offer numerous apps designed to help children with special needs, and apps specifically designed for people with autism can work wonders in helping them communicate.

St. Louis native Mark Bowers designed an app called Sōsh that helps young people develop social skills. According to the app’s website, Sōsh uses a methodology designed around the “five R’s” – Relate (connect with others), Relax (reduce stress), Regulate (manage behaviors), Reason (think it through) and Recognize (understand feelings). Continue reading »

Choosing a Guardian for Your Children

Estate Planning Practice Group

Estate Planning Practice Group

One of the most difficult decisions parents face when completing their estate plan is who should serve as guardian for their minor children. Here are a few common discussions regarding choosing a guardian: Continue reading »

Being an advocate for your child with special needs

Estate Planning Practice Group

Estate Planning Practice Group

Information and strategies abound regarding techniques that should be implemented by parents of a child with special needs to advocate for the child’s education rights, therapies, and treatments. Building a network of resources and support is vital to becoming a parent advocate.

A great tool is available from the Advocacy Group Autism Speaks. They have put together a 100 day kit to help families with a new diagnosis of autism.

Parents also must quickly learn how to navigate the complicated educational laws governing children with special needs. Wrightslaw and other disability advocacy websites offer families a plethora of information regarding the Individuals with Disabilities Education Act (IDEA 2004) and a child’s right to a Free Appropriate Public Education (FAPE). Continue reading »

The Importance of Care Plans & Beyond

Estate Planning Practice Group

Estate Planning Practice Group

A care plan is written information about how to best care for your child’s health needs. A care plan may include specific medication your child takes and the time they take it, particular foods your child should avoid, how often your child gets physical therapy, or what to do for your child in an emergency. For families with children who have special needs, a care plan can convey vital information to caretakers. This may include doctors, nurses, therapists, emergency medics, teachers, child care providers, respite providers, grandparents, friends, and neighbors. Continue reading »

Powers of Attorney v Guardianships

Estate Planning Practice Group

Estate Planning Practice Group

When your child turns 18 years old, he or she is considered a legal adult. As an 18-year-old, he or she has the ability to contract, to make decisions such as whether he or she wants to continue to go to school, and whether a parent can be present in an IEP meeting. Further, because of HIPAA privacy rules, a doctor can no longer communicate with the parent regarding that child’s health issues. For families with a child who has special needs, they must make some critical decisions in order to protect their child who is turning eighteen. Two options for these families are seeking guardianship through the court or having the child sign a power of attorney, if appropriate.

Guardianships are a process through the court by which persons are declared incapacitated to the extent that they are unable to make their own decisions regarding medical care and placement, and an individual is appointed by the court to act in their stead. Since the court regulates the guardian, this process can become a costly affair and is a much longer undertaking than a power of attorney, especially if the appointment of a particular guardian is contested.

Conservatorships are formed whenever persons are declared unable to handle their own assets. If a guardianship is granted, a conservatorship will also typically be granted. If the person who was declared incompetent by the court has assets, the court will monitor the appointed conservator and will require annual reports regarding the use of the assets by the conservator to be filed by an attorney.  In order for a guardianship or conservatorship to be set aside, the incapacitated person must petition the court to have his or her legal rights restored and must demonstrate the previously incapacitated person is no longer in need of a guardian or conservator.

Continue reading »

U.S. Court of Appeals Decision Favors Student Who Brought IDEA Claim

Estate Planning Practice Group

Estate Planning Practice Group

The United States Court of Appeals, in March 2010, voted in favor of specialized children in the case, Compton Unified School District v. Addison. This case upheld the Individuals with Disabilities Education Act (IDEA), which ensures children with disabilities have access to a free appropriate public education (FAPE).

In Compton, Addison, the student, received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. The school counselor promoted her to tenth-grade, despite her low performance.

During the fall semester of her tenth-grade year, in 2003, Addison failed every academic subject. Addison’s mother was reluctant to have her child tested, and the School District did not require it. Instead the School District referred Addison to a third-party counselor who recommended the School District assess Addison for learning disabilities. The School District ignored this directive and promoted Addison to the eleventh-grade.

In September 2004, Addison’s mother explicitly requested an educational assessment and Individualized Education Program (IEP) meeting from the School District. The assessment took place and Addison was found eligible for special education services on January 26, 2005, which was during the spring of her eleventh-grade year.

Addison and her mother brought the claim against the school district seeking compensation for the School District’s failure to identify her needs and provide her with a free appropriate public education.

The school district argued two issues: the first is that the IDEA’s written notice procedures limit the jurisdictional scope of the due process complaint procedure and the second is that they did not receive “clear notice” of the availability of an administrative hearing in “child find” cases. The court rejected the school district’s first argument contending that the Supreme Court has already addressed this issue. The Supreme Court has stated that a conservative reading of the IDEA would leave parents without an adequate remedy if a school district fails to identify a child with disabilities. Regarding the second issue, the court additionally struck down the school district’s argument of “clear notice” finding the IDEA clearly allows complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child.”

The court’s decision in this case provides fuel for other parents to seek compensation for a school district’s failure to identify children with disabilities in the educational system.

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