Choosing a Guardian to Name in Your Will

 

When handing your will and estate planning, one of the most important decisions you’ll have to make is who will take care of your children if you become incapacitated or in the event of your death.

 

“If you don't name a legal guardian in your will, the court will choose who will care for your children,” says Alex Hilsen, Esq., LL.M., head of SGW’s Estate Planning Division. “And you can’t assume that they will automatically grant custody to aunts, uncles, or grandparents.”

 

When drawing up your will, be sure that you and the other parent agree with who will be your child’s legal guardian so you can name the same person in both of your wills. “It’s a highly personal decision, so you want to make sure that you’re on the same page,” says Hilsen. You might also want to think about naming an alternate guardian if the person named isn’t able to take on the responsibility for whatever reason. “This may be a particular concern if you have a child with special needs.”

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Many of us labor a lifetime to build up our assets and fight for causes that matter to us. Few things are more fulfilling than the thought of sharing wealth and legacy with our family.

Of course, it’s impossible to plan for every eventuality, but careful planning can mitigate against the two primary risks.

 a)    Your intentions regarding your estate weren’t made clear, resulting in the potential for costly, time-consuming conflict.
 b)    Your family did not understand or share your wealth management vision, resulting in the possibility of asset dissipation.

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In an 8-0 opinion, the U.S. Supreme Court struck down the de minimis standard as it relates to the educational benefit that students must receive under the Individuals with Disabilities in Education Act (IDEA). Instead, the Court reiterated the longstanding Rowley standard in ruling that in order for a school to “meet its substantive obligation under the Individuals with Disabilities in Education Act, a school must offer an “individualized education program” reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

In the case, entitled Endrew F. v. Douglas County School District, Endrew’s parents believed that he was not making any progress, as reflected by his “individualized education program,” which set forth essentially the same goals and objectives each year. The District offered an IEP to the parents for Endrew’s fifth grade year and it was similar to the IEPs that preceded it. The parents did not believe it was appropriate, so they unilaterally placed him in a private school and sought reimbursement from the school district. The lower courts ruled against the parents. The 10th Circuit Court of Appeals, relying upon the same lower standard as the court below, also ruled in favor of the District, holding that an IEP is adequate as long as it is intended to provide “merely more than de minimis” benefits.

An extended school year (ESY) refers to educational programming beyond the required 180-day school year for students with disabilities who are eligible. Although every student with a disability who has an individualized education program (IEP) must be considered for ESY, not every student is eligible for ESY. The determination, like all other programming decisions for students with disabilities, must be made annually on an individual basis by the IEP team. Parents are a valuable member of the IEP team and must be part of this decision-making process.

Several factors must be utilized by the IEP team in making a determination about whether a student is eligible for ESY. First, significant consideration should be given to the possibility that a student will regress if skills are not carried over beyond the traditional school year. In other words, if an interruption in the receipt of educational services would cause a student to regress and would require significant time to recoup, ESY is likely appropriate. Other factors that the IEP team should consider include:

MariannCrincoliAs a child approaches his or her 18th birthday, most parents feel a loss of control as he or she officially enters adulthood. Parents of children with special needs have even more reason to be concerned, because they have the heavy responsibility of determining whether or not their child is ready to graduate high school and transition to the next phase of life.

When evaluating this, it is helpful to know that there are special education laws that will assist you in making informed decisions — one that is best for your child.

Firstly, all children with disabilities in the State of New Jersey have the right to earn a high school diploma, just like their nondisabled peers. The Individuals with Disability Education Improvement Act of 2004 (IDEA) sets two paths for children to go about earning their high school diploma. High Schoolers with a disability can take the traditional route by completing the course requirements set forth by their public high school, or by completing the special education program and modified requirements contained in their IEP.

Under federal and state law, children with disabilities have the right to special education and related services through the school year in which they turn 21 or until they graduate, whichever comes first. However, if a child’s 21st birthday falls on July 1st, services will continue through the end of the following school year. This caveat may prove advantageous to a high schooler with a July 1st birthday not quite ready to graduate.

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Special education is governed by federal and state law which requires public school districts to provide children with disabilities a free and appropriate public education that is individually tailored to meet a child’s unique needs and prepare her for the future as an independent member of society.

If you think your child has special education needs, here’s how you should get the process started:

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School refusal, a significant, persistent refusal to attend school based in emotional distress, is more common than you think. It can be a terrible dilemma for a parent: You know your child needs to go to school, and you know she is not physically ill, but she still refuses to go and you don’t know what to do about it. She promises every night tomorrow she will go, but when school time approaches, she just can’t get out of the car, throws a tantrum or spends the day in the nurse’s office complaining she does not feel well. The school may be saying: “She’s fine; just send her in” or even threatening to call a truancy officer if you don’t. But it’s not that easy.

girlCoveringEarsDoes your child crash into walls? Does he cover his ears in a crowded amusement park or shy away from birthday parties? Does she seem insensitive to pain, or overly sensitive to sound or light?

When children have difficulty processing, or making sense of the sensory information they take in, they may have difficulty responding appropriately in a given situation or environment. When this difficulty is so severe that it impedes daily functioning, the child may be said to have a Sensory Processing Disorder (an "SPD") also known as Sensory Integration Disorder. An SPD may affect your child's ability to access his school education in numerous ways. For example, an SPD may affect your child's ability to focus, write, perform motor activities or participate in school social situations, such as lunch or recess. 

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Many parents of children with life-threatening food allergies know to contact the school’s administration even before the first school bell rings. The goal: To set up a plan to keep their child safe.

But starting a productive dialogue about creating a positive school environment—one that allows the child equal access to school programs--can be tough when the ground rules are unclear. As a parent, you can do a lot to help by bringing information to your school team about what the law requires. Then, instead of asking for special help, you can take on the role of helping the school to fulfill its legal mandate to its students.

In honor of National Nutrition Month, here is a quick overview of four available tools (from lowest to highest level of intervention) that you can utilize to protect your school-aged child with life-threatening food allergies, nutrition concerns and medical issues.

1.    Have an Emergency Care Plan (ECP). This provides a first level of protection for a student with a life-threatening allergy in emergency situations. Typically, an ECP only addresses how a school must respond if a child with an allergy has an emergency in school.

To obtain an ECP, you should reach out to your child’s doctor for a signed care plan to bring to the school which becomes the ECP. An ECP may read like doctor’s orders, written for the school to carry out. The ECP should include:

  • The allergens your child must avoid;
  • Symptoms that would require emergency care, such as use of an epinephrine auto injector;
  • Procedures for calling 911 and taking your child to medical care; and
  • Emergency contacts. 

Federal lawmakers recently approved a provision that will allow people with disabilities in the U.S. to save money without risking their government benefits. By opening new accounts established under the Achieving a Better Life Experience (ABLE) Act, they’ll be able to accrue up to $100,000 in savings without losing access to Social Security Disability Income, Social Security Income, Medicaid coverage, and any other government benefits that help with their care. Additionally, earnings and distributions from the account for qualified disability expenses would not count as taxable income to the disabled individual.
But what happens to that ABLE account savings when the disabled individual passes away? Any money left will go towards paying back the state for Medicaid and other public funding that was used. A more effective estate planning method is to establish a Special Needs Trust. This will ensure that the money goes to your family-- not to the government.

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