How to create a master plan for the care of your special needs child

If you’ve been caring for your child who has special needs, you have deep personal knowledge of how your child behaves and responds. You know what they like and what they hate. You know what triggers an anxious or distressed reaction. It could be a flavor, a show, a color, or a person.

As an aging parent, you are probably concerned about who will take care of your child when you are gone. Even as a young parent, this could be on your mind. You may be thinking only about your estate plan – what funds should I set aside? Who will mange those for my child? Do I need a Special Needs Trust (SNT)? Who should I designate as the successor guardian in my Last Will and testament? These are critical decisions for you to make. But what about the actual care plan? There are so many details to think about and convey to the person who follows in your shoes.

Who is going to take your place? Can your child stay in the home? Who will live there and oversee the daily routine? Who will take care of the house? How will they know just what your child is like, or what your preferences are? How will they know about the social life and cultural life your child enjoys? If religious practices or weekly rituals are important, does the potential caregiver know about that? Do they know just how you enable your child to participate in these activities? What is the supported decision-making model that you have been using with your child?

The answer is to write up a blueprint for special needs care — a “master plan”. Call it what you like, it is a detailed discussion of the kinds of things just described. Write up the daily schedule, food preferences, clothing preferences. Include names of favored friends and relatives, best-loved teachers and aides, doctors and health care providers, and people who must be avoided. Collect the IEPs, IQ tests and other cognitive evaluations, progress reports, court orders, and medical records. Collect the current Social Security or SSI documents and Medicaid or Medicare proofs. List the doctors and prescriptions. Make requests or recommendations for activities and outings. No detail is too small.

Estate planning is much more than just a Will, trust or power of attorney. It’s about creating peace of mind and a sense of security for your special needs child as well.

Call us for special needs future care planning, and estate planning … 732-382-6070

Veteran’s Health Care, Predictive Analytics, and RAND Reports

Recently, the RAND Corporation released three reports regarding the Veterans Health Administration (VHA).  These reports were previously submitted to the VA and House and Senate Veterans Affairs Committees as mandated by the Veterans Access, Choice, and Accountability Act of 2014 (Public Law 113-146).  The summary of all three reports can be found at RAND Reports – Summary.

The report that may have the most impact long-term is entitled “Current and Projected Characteristics and Unique Health Care Needs of the Patient Population Served by the Department of Veterans Affairs.”  Essentially, RAND was using predictive analytics to assess the short and long-term demography of the veteran population likely to use VHA services in the future. RAND predicted that the overall population of veterans using the VHA to increase through 2019 and then slowly level off.  Between 2014 and 2024, however, RAND predicts the total number of veterans using the VHA will decrease by 19 percent.  Copy of that report can be found at RAND Report Veteran Population.

The algorithms within the RAND report are, frankly, light years beyond my cognitive capabilities.  However, I personally suspect that a larger percentage of the OEF/OIF veterans will be using the VHA as their exclusive health care provider than expected given the rising costs of private health insurance, eligibility requirements for OEF/OIF veterans, and overall improvement within the VHA system.  Further, as the DoD downsizes in the upcoming years many of those service members will be ineligible for TRICARE and will likely look to the VHA given the increasing awareness of Title 38 benefits.

The impact of predictive analytics on federal agency planning and operations can not be understated.  Consider the burdens on the Social Security Administration in 2009-10 after the unexpected housing market crash and recession of 2008 or the issues within the DoD regarding force levels after 9/11.  Given that Congress and the VA will use such studies to allocate resources and personal both long and short-term, even slight deviations in the veteran population metrics can have dramatic effects on quality and availability of healthcare.

Was it a loan or a gift?

The recent New Jersey case of Estate of Bertha Polak is another good illustration of differing viewpoints among family members about the terms of intrafamily loans and whether there is an obligation to repay. This case arose during the estate administration process. This is an unpublished decision of the Appellate Division, meaning it isn’t precedential, but it gives the reader a good look at what the obligations are when the lender dies and the borrower disputes the alleged loan.

Polak lived with her daughter, Linda Hall, in Hall’s house. Polak paid rent of $1,000 a month to Hall. At some point, Polak took out a loan in the amount of$79,784.28, secured by a mortgage on some other property that Polak owned, and gave the funds to Hall. Polak kept $10,000 of the loan proceeds and gave the rest to Hall. Polak began making the mortgage payments of $922.93 to the bank, but ceased paying rent to Hall. Polak’s Will made mention of the “loan.” In fact, it said: “At the time of the sale of the property Linda Hall shall be responsible for repayment of this loan. The total amount shall be paid back to the [e]state and this amount shall then be added to the proceeds of sale and be divided amongst my children, Carol, Lisa and Linda and the surviving children of my daughter Andrea.”

After Polak died, Hall was the Executrix of the Estate and attempted to characterize the loan as a prior gift to Hall that did not require repayment on her part. A legal action was filed by other heirs to the estate. Eventually, the case was tried and judgment was entered against Hall, not only ordering her to repay the loan but also depriving her of her Executor’s commission. Another issue, of course, was whether Hall could simultaneously represent the Estate (as Executor) and herself (as borrower who was trying to avoid her obligation to the estate). But that is a subject for a different day …

For legal representation in estate administration, call us at … 732-382-6070

Blue Water Vets, Gray v. McDonald, Round 2, To Be Continued Again . . .

Previously, I had blogged about an April 23, 2015 decision from the Court of Appeals for Veterans Claim (CAVC)  in Gray v. McDonald.  In Gray, the CAVC had remanded because the Department of Veterans Affairs’ (VA) interpretation of “inland waterways” for the purposes of the presumption of exposure to Agent Orange (TCDD) was found arbitrary.  Link to that blog post (to include a recent District Court of Columbia decision on a similar issue) can be found at:

CAVC – Blue vs. Brown Water Veterans and Inland Waterways . . . To Be Continued

As the following ProPublica article discusses, the VA has reassessed the definition of “inland waterways” and published a fact sheet for Blue Water veterans.  I have uploaded the VA Fact Sheet on Blue Water Navy.  Essentially, the VA maintained their analysis of blue water versus brown water, though Qui Nhon Bay and Ganh Rai Bay are no longer considered inland waterways.  Similarly, DaNang Harbor, Nha Trang Harbor, and Cam Ranh Bay are not considered inland waterways.

VA now defines “inland waterways” as such:  “inland waterways to end at their mouth or junction to other offshore water features, as described below. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway is determined by drawing a straight line ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers.”

Whether this satisfies the CAVC’s concerns regarding arbitrary designations remains to be seen.  Whether the VA simply modifies the M21-1 (the VA Adjudication Manual) or — to resolve any issues regarding the Administrative Procedure Act’s (APA)  notice-and- comment requirement — proposes a regulatory amendment also remains to be seen.

The APA issue interests me greatly because of a Supreme Court decision last year in Perez v. Mortgage Bankers Assoc.,135 S. Ct. 1199 (2015).  In Perez, the Supreme Court held that the Administrative Procedure Act (APA) does not require a federal agency to adhere to the APA’s notice-and-comment rulemaking when it issues a rule interpreting own of its own regulations.  While the decision garnered little attention, it has the potential to have a significant impact on how federal agencies operate.  To date, the CAVC/Fed. Cir. have yet to address the impact of Perez on Title 38 issues.

If you have questions regarding the presumption of exposure to Agent Orange, please don’t hesitate to contact me at sdirector@finkrosner.com or via telephone at (732) 382-6070.

Visitation by grandparents not a sure thing in New Jersey

When a minor child loses a parent, typically the surviving parent is the legal guardian of the child. That can leave the parents of the child’s deceased parent in the lurch when it comes to visitation. They want to maintain the relationship they have forged with their grandchild.

The New Jersey statute can be found at NJSA 9:7.1. The liberty interest of the surviving parent to raise the children as s/he sees fit is a constitutionally protected fundamental right. Constitutional rights are not absolute, and there can be reasonable and necessary limitations if required to safeguard the health, safety and welfare of the child.

It is not presumed that access to the grandparents is in the best interest of the child. If the surviving parent doesn’t agree, the grandparents may file suit in the Family Part of Superior Court. The grandparent has the burden “to prove by a preponderance of the evidence that the granting of visitation is in the best interest of the child.” The statute lists 7 factors, including the relationships among the family members, the time that has elapsed since the last contact, the effect that visitation may have on the child’s relationship with his/her parents, any history of abuse or neglect, as well as “any other factor relevant to the best interests of the child.”

The New Jersey Supreme Court has recognized that there is a need to deal with these claims in an efficient and cost-effective manner, because of the extreme financial burden and disruption of family life that complex litigation can produce. In Major v. Maguire the Court announced new procedures.   Starting with Moriarity v. Brandt (2003), and the later procedural decision in  R.K. v. D.L., App. Div. 2014) the Court  held that as long as the grandparents plead a “prima facie” showing that it will be harmful to deny visitation, the case should be handled as a summary matter with or without brief and limited discovery, unless a party requests that it be treated as complex. In that case, further procedures are specified by the decision. .

Mediation can be particularly useful in these dilemnas also. The process can achieve a result that addresses the needs of both sides and can defuse the hostility that a lawsuit inevitably produces.

Call us for family law mediation and advice on elder care issues … 732-382-6070