Andrew Ewalt's Law Blog

Special Needs Planning Part 2

A very important element of any estate plan, but especially so when planning for a special needs child is a letter of intent.  The letter of intent is a written document, created by the parents of a spacial needs child that serves as a blueprint of valuable information about the child.  It should provide a clear vision of how parents want their child to live when they are no longer able to care for the child.  The letter should answer the questions:  What will happen to our child when we can no longer provide daily care, supervision and financial support? However, this is not a legal document, and does not replace the parents special needs estate planning documents, but acts as a supplement to those legal document.

The letter of intent generally includes information about:

1.  Emergency contacts

2.  Behavioral condition and history

3.  Medical condition and history

4.  Current and desired living arrangement

5.  Financial Status

6.   School or work situation

7.  Funeral arrangement

8.  Parents feelings about the child's future

9.  Insurance

10.  Education

Special Needs Planning: Part 1

One of the best parts of my practice is when I have the opportunity to assist parents of a child with special needs.  A concern of all parents, (but especially parents of special needs children) is what will happen to their child/children if something happens to them (parents become disabled or die) and they are unable to care for their child/children. 

A typical scenario for parents considering their estate planning is how to leave their estates to their children. When the children are still minors it is best to do so in a trust for the benefit of the child.  Then (if the parents so choose) the trust assets may be distributed directly to the child at a time when the parents feel the child is an adult and will be responsible with the money. 

Parents of children with special needs must consider other factors. A major difference is that the need for care may continue for the special needs child's entire life and will often incorporate social and government programs and benefits.  These programs and benefits may become negatively effected or lost if the child is given money or directly inherits any money from the parents or other individuals.  Thus it is very important that parents, grandparents, siblings, and other family and friends find alternatives for leaving gifts or their estates to children with special needs.

One very popular and very effective solution is to use a special needs trust which is specifically designed to address these unique issues and concerns. 

Organ Donation

When I meet with estate planning clients one of the more interesting questions I must ask is whether or not the client is or wants to be an organ donor.  This is a very personal question. A question that nobody else can answer for us.  In Connecticut there is a process for notifying others that you are an organ donor.  Notice can be placed on your drivers license or state issued ID card.  The other way is through the Connecticut Advance Directives document, which includes several other very important legal statements about your health.

If you are considering donation of your organs here are a few questions and answers published by the Connecticut Coalition for organ and Tissue Donation.

Will my decision to become an organ and tissue donor affect the quality of my medical care?

No. Organ and tissue surgery takes place only after all efforts to save your life have been exhausted and death has been legally declared. The doctors working to save your life are entirely separate from the medical team that would be involved in recovering your organs and tissues.

Will donation disfigure my body?

Donation neither disfigures the body nor changes the may it looks at rest.

Are there any costs to my family for donation?

No. Donation costs nothing to the donor's family or estate. The donor's family is responsible for hospital charges not involved with the donation, and the donor's funeral arrangements.

Does my religion approve of donation?

All major religions approve of organ and tissue donation and consider it a gift, an act of charity

Who can become a donor?

Everyone should consider him or herself a potential organ and tissue donor. Your medical condition at the time of death will determine what organs and tissues Can be donated.

What organs and tissues can I donate?

Needed organs include the heart, kidneys, pancreas, lungs, liver and intestines. Tissue that can be donated includes the cornea of the eyes, skin, bone, heart valves, veins and tendons.

What will happen to my donated organs and tissues?

Patients who receive organs and tissues are chosen based upon many factors, such as blood type and medical matching. A national system is in place to ensure the fair distribution of organs in the United State. The buying or selling or organs is against the law.

For more information about organ and tissue donation call:

Connecticut Coalition for Organ and Tissue Donation, From area code 203 dial 1-800-446-6362, or from area code 860 dial 1-800-874-5215.

Picking A Guardian For Your Children: Part 1

Have you legally selected who will raise and protect your children if you (and your spouse) die? Have you ever even considered the question? Have you even talked about it? If the answer is "no" or "not really" you are not alone. Many of my clients are just like you.  It is often at the top of their "to-do-list but the truth is that if a parent does not state in their will who they want as guardian the government (a judge) will make that decision.

Here are some things to consider when selecting a guardian:

1.  No one is going to be you.  No one else will have your exact parenting, discipline or style.  Once you get over this obstacle it is easier to make a good decision.

2.  Parents want to make sure that if they were to die, their children will be taken care of. But what if the individuals they choose are not as well off? Can assets be left to the guardian to even things up?

3.  Are the potential guardians emotionally and physically up to the job?  Do they have the time? Adult  siblings and elderly parents may not be the best choice?

4. Will your children have to move or change schools?

5.  Do the guardians have the same moral beliefs?

6.  Are they financially stable?

Top 5 Retirement Planning Mistakes

Many of my clients ask my advice regarding their retirement plans and benefits.  Though I am not a financial adviser and as such never make recommendations regarding specific financial/investment options (I do work with many very qualified financial professionals and I do love to make referrals so if you are in the need of a financial adviser in Connecticut please let me know), as an attorney I do work very closely with clients and there retirement plans.  Here are  5 mistakes to avoid regarding your retirement assets.

1. Not understanding your options when you leave a company.

2. Improper or outdated beneficiary designations.

3.  Not understanding the beneficiary's distribution options.

4.   Not taking the required minimum distribution from an IRA when you reach age 70 1/2.

5.  Not having enough money saved for your retirement.

All of these mistakes can be avoided with a little knowledge.  The information you need is available through qualified financial professionals. 

Amending A Will

Typically, the first stem in estate planning is to prepair a will.  If you do not have a will in place, this requires your immediate attention.

However, lets say you already have a will in place, but your situation has changes in the time since you drafted the will.  In these situations , you may be able to add onto or modify your existing will with a codicil.

In order to be binding, a codicil must be handled with the same legal formalities as a will and should be drafted by an attorney.

Pet Trust

Have you considered who will care for your pet(s) if you die or become disabled?  Most likely not.  Often people assume they will survive their pets  so they do not plan accordingly.  The Humane Society of the United States encourages pet owners to carefully  consider the ramifications of failing to adequately provide for pets.  In this light, specific pet trust legislation has been enacted in approximately 31 states and the District of Columbia. These laws permit a person to create a trust for the care of designated domestic or pet animals and specify that a pet owner's intent to provide for their animal can now be protected by the courts. Unfortunately, under current Connecticut law, a pet owner cannot create a trust or will to provide for the care of the pet after the owner dies.  However, legislation has been presented to the Connecticut Legislature that would allow for the creation of a Pet Trust for domestic animals. Never-the-less while we are waiting on the Legislature there are still options for Connecticut residents who own pets.  These options should be discussed with your attorney when you meet to discuss your will. 

The Team Approach

When considering a legal, financial, tax or insurance consultation it is very important to find advisors who see themselves as a member of a team because not every situation or question can be addressed by any one individual advisor.  In addition to answering questions the team members can help put pieces of the puzzle together which might have been overlooked otherwise.  For example, in my practice I rely a great deal on the advice and expertise of the CPA’s, Financial and Insurance professionals we work with.  They provide me with resources that I would otherwise not have or even understand.  For example when working with a client on an estate matter we may need net worth and asset information that may only be available from the clients financial planner, for important tax information we may need to turn to the clients CPA, and for insurance that would best fit with the will or trust planning we are doing we must get help from the clients insurance agent.  Without these advisors working together and being on the same page the clients planning may never fully come together, be counterproductive or may even result in a negative outcome.  My office works with other professional advisors to help you accomplish your goals and objectives in the most cost effective and timely manner possible. If you have questions about how the “Team Approach” can help you accomplish your goals and objectives please contact me so we can discuss your matter. 

Power of Attorney vs. Revocable Living Trust

One of the many questions I receive from clients is whether there is a preference between a Power of Attorney and a Funded Revocable Living Trust when it comes to handling assets after disability? There are a number of reasons why a fully funded Revocable Living Trust is preferable over a Power of Attorney. Here are a number of reasons to consider:

1.  Banks and other financial institutions are more comfortable and familiar with the authority granted to a trustee then they are to the authority under a Power of Attorney. The Attorney-n-fact under a Powers of Attorney operate under the law of agency where trustees operate under the fiduciary or trust law. 

2.  Many banks and financial institutions will not recognize a Power of Attorney that has not been drafted in accordance with their own formate. 

3.  There are often regional differences in acceptance of Power of Attorney. Some locations will recognize them readily (perhaps too readily in some cases!), and in others, banks are very reluctant to recognize the Power of Attorney.

4. If the Power of Attorney is also a "Springing" Power of Attorney (i.e. the Principal has become incompetent thus allowing the Power of Attorney to spring into effect) difficulty arises in getting financial institutions to recognize the authority of the Attorney-in-fact because they demand sufficient proof that the Power of Attorney has actually "Sprung.

Preserve Your Legacy of Values

When completing your Estate Plan also consider an ethical will.  Though not a legal documenta an ethical will is a way to share your values, beliefs, life lessons, and hopes for the future, love, and forgiveness with your family and community.  An ethical will reflects the “voice of the heart.”  Every ethical will is as unique as the person writing it.

After reading a number of ethical wills, there are common themes that run through many of them. Sometimes they contain burial instructions, blessings, and personal and spiritual values. 

Here is a partial list of common themes seen in many ethical wills.

• Important personal values and beliefs
• Important spiritual values
• Homes and blessings for future generations
• Life’s lessons
• Love
• Forgiving others and asking for forgiveness

There are many personal reasons for writing an ethical will.  We all want to be remembered, if we don’t tell our stories and the stories from whom we come, no one lese will and they will and they could be lost forever, it helps you identify what you value most and what you stand for, future generations will have a better understanding of our values. 

If preserving your personal legacy would be an important aspect to your overall estate planning goals then seek out an attorney familiar with the process.  Regardless of your overall estate planning needs and goals an ethical will is a good way to share your values, beliefs, life lessons, hopes for the future, love, and forgiveness with your family and community.