North Carolina's First Elder Law Firm : Special Needs Blog

A Call To Action

A Call To Action

Unfortunately, North Carolina still resides in the 19th century in its assessment of liability when people suffer injuries due to the negligence of others. Legal responsibility for damages arising out of an accident in North Carolina is based upon an assessment of fault. The legal term is negligence. Negligence is the failure to use due care to avoid injury to others either by things that we do or things that we fail to do. In North Carolina a complete defense to a claim of negligence is that the person injured was contributorily negligent. Thus our rule of law is that if the driver of a vehicle is 95% at fault in an accident and the injured pedestrian was 5% at fault, there will be no recovery by the victim regardless of how devastating the injury may have been, up to and including death.

Forty-six of the 50 states have abandoned the rule of contributory negligence in favor of a more equitable system of assessing liability known as comparative negligence. Only North Carolina, Alabama, Maryland, Virginia and the District of Columbia still adhere to the contributory negligence rule that unless your injury is 100% the responsibility of the other party, you are without legal remedy. In comparative negligence states, when a jury apportions responsibility 70% to the one who caused the accident and 30% to the victim, then when damages are assessed for the victim’s hospital bills, loss of earnings, permanent disability, disfigurement, pain and suffering, etc., the victim receives 70% of the damage award. Thus in a comparative negligence state, the victim would receive only $35,000 of a $50,000 damages judgment. However, in North Carolina upon a finding of any percentage of contributory negligence by the party injured, the jurors would not ever reach the damages issue and the injured person would receive no recovery for their losses.

Efforts have been made from time to time to change the law in North Carolina through the General Assembly. Such efforts have lobbied for by victims advocacy groups, but have been successfully resisted by the liability insurance companies and business interests. During this session of the General Assembly, it is expected that legislators will again consider the Uniform Apportionment of Tort Responsibility Act. Legislators are responsive to constituent concerns. If you feel that North Carolina needs to come into the 21st century and join the over-whelming majority of jurisdictions which have found comparative negligence to be more just, equitable and fair, please write your legislators and encourage their support of this legislation.

Programs for People with Special Needs included in the Stimulus Package

There is good news for people with disabilities. American Recovery and Reinvestment Act of 2009, the spending plan to stimulate the economy, was signed into law by President Obama. The ARRA significantly increases federal spending in many programs that help people with special needs. Some of the affected programs include:

$12.2 billion to increase funding for Individuals with Disabilities Education Act (IDEA) grants. These are used to fund special education programs on a state level. The increase in grants raises the federal government's share of special education costs (with the rest assumed by the states).

$500 million for the IDEA Infants and Toddlers program. This program funds state initiatives designed to assist families of children with special needs who are under 2 years of age.

$400 million for IDEA preschool grants. The grants fund educational programs that help preschool aged children with special needs.

One-time payments to Supplemental Security Income (SSI) and Social Security Disability Income (SSDI) recipients. This provision distributes an additional $250 per person one-time SSI or SSDI "bonus" payment, much like last year's economic stimulus payment. The Social Security Administration (SSA) has indicated that this payment will not count as income in the month it is received, although any funds retained by the beneficiary will count as a resource in the month following the distribution, much like a typical SSI payment.

$500 million to help the SSA speed up "processing disability and retirement workloads." Up to $40 million is also made available to help the agency utilize electronic medical records for disability claims.

$500 million in state formula grants. The grants are designed to update and repair job training facilities for people requiring vocational rehabilitation.

$87.5 million in funding for the creation and repair of independent living facilities.

Eight Ways to Help You Care for Yourself and Your Loved One

Caring for a loved one with special needs can often be tiring and demanding.  Many times there is no one else to help the elderly or disabled loved one requiring all of your time, devotion, and focus on care giving issues. All too often, this leads to care givers being overwhelmed and stressed out them.

Being family, the caregivers have no alternative; they must be there. Failure to do so can lead to an escalation of decline that promotes greater injury or illness. Countless surveys and research results have found that the caregivers are also suffering injuries and illnesses due to their being worn out by the constant tasks at hand. If you are the worn out caregiver, any of these results will harm your ability to care for your loved one.

Since there are no other options for so many caregivers, here is an easy list of nine “build in” steps to make sure you are less stressed while caring for your loved one. The list is adapted from New York Times columnist Jane Brody's excellent Nov. 17, 2008, column, "Caring for Family, Caring for Yourself."

1.         Build in Step One: Time off or Respite

The “Family” job lacks benefits and time off.  It is important to give yourself a scheduled break at least once a week.  Make sure that you take some nights off as well, find a good short period care giver and just relax.  If you can not find a caregiver, have people over to your house.

2.         Build in Step Two: A Relaxing Hobby

If you can not get out at least once a week, create a hobby that will ease your stress, and can be done while care-giving. Knitting, sewing, painting, cooking, etc. anything that will not take your full and utmost attention can be used to relax.  You can even invite people over during this time for a sitting.

3.         Build in Step Three: Your Vacation

Build in time for a separate vacation from the vacations that you might take with your loved one you need to schedule a week where you are on “vacation.” This does not even need to be a vacation out of your house, although it would be better if it were, this just needs to be a week where you are not responsible for care giving.

4.         Build in Step Four: Keeping up Physical and Mental Stamina

For your and your loved one’s sake you must build in a workout in some way, shape, or form. This does not have to be an “event”, or even something that you have to do without your loved one.  Get a family club membership, buy a at home workout DVD, find a community exercise group, all of these situations should be able to incorporate your loved one into the workout routine.

5.         Build in Step Five: Nutritious and Wholesome Diet

The better you eat the more energy you have, and the healthier you feel.  Feeling energized and healthy is important for your stress level and stamina when being a caregiver. Cutting out overly fatty, sugary, and processed foods can really make you feel better psychologically and physically

6.         Build in Step Six: Rest; Don’t Cheat Sleep

Without a good amount of rest the relationship between you and your loved one can become very strained.  It is important to try to make up all sleep that is missed, even if it is just by cat napping in the day.

7.         Build in Step Seven: A Support Network; Get In Touch with the Care Giver Community

In addition to family, neighbors and church friends, build in relationships with the various supports groups available through organizations like those that follow with internet links to their websites: 1. Alzheimer’s Association – http://www.alz.org.; 2. Arthritis Foundation – http://www.arthritis.org.; 3. National Parkinson Foundation - http://www.parkinson.org.; 4. National Multiple Sclerosis Society - http://www.nationalmssociety.org.; 5. American Diabetes Association - http://www.diabetes.org.  Also connect with your Area Agency on Aging – there is one every community.

8.         Build in Step Eight: Consult with A Board Certified Elder Law Attorney or Special Needs Planner –

We are a recognized Elder Law and Special Needs Law firm. A. Frank Johns is currently designated in 2009 as a Super Lawyers; Best Lawyers in

America; Preeminent AV Rated, CELA -Certified Elder Law Attorney (by the National Elder Law Foundation) and one of the first lawyers earning the LLM – Master in Laws in Elder Law. Here’s our link and how to contact us:

 

BOOTH HARRINGTON & JOHNS of NC PLLC

www.nc-law.com

Phone: 336.275.9567

Toll Free: 877.503.5337

Fax: 336.373.8747

Memorial Day Blog Entry May 26 2008

Happy Memorial Day,

Today we celebrate our veterans and everyone who has fought for our country.  We honor the bravery and courage required to put one’s country before one’s self.  It is also a day to recognize those disabled by war.  Estimates of those permanently injured, physically and psychologically, reach in the tens of thousands.  Serving these veterans with special needs is probably more complicated than serving those born with special needs. These veterans and their loved ones can remember when they were able to function normally, and now they must rely on others. If anything, our veterans need more help, because they can remember what is was like to be normal and now know life is not the same.  This Memorial Day vow to become proactive in lobbying our government to better help these people who stood in harms way to defend us all.  Look for ways to better help our service men in need.  It is our responsibility as citizens to do what we can to honor those who have sacrificed themselves for the rest of us.

Time Often Changes Special Needs

It's spring 2008, and the Easter/passover holidays are early. Regardless, the beginning of spring for many is a time for renewal and taking care of those items on the "to-do" list long since over-looked.

Families that have teenagers with speical needs often have lists longer than most. What with all that must be done, those that are not urgent are pushed further down the list. One of those overlooked items is legal planning for those things not related to estate planning or even special needs trusts. Legal planning for the individual rights of challenged teens requires parents to decide if guardianship or powers of attorney may best serve how the teen will have access, connection and voice in the young adult years to come.

If the challenged child needs guardianship or conservatorship (depending upon the state), the parents should consult a special needs attorney in their area. The necessity of guardianship will depend on the severity of the physical and mental deficiencies that challenge the child. For many children, their mental function may be of sufficient threshhold that they have the ability to make informed decisions regarding their choice of agents under powers of attorney. See my future comments about challenged teens and powers of attorney. 

As for guardianship, the process maybe be started in many states as early as six months prior to the child reaching the age of eighteen. If the teen has no assests, including no gifts given under the Uniform Gifts to Minors Act (which I generally never advise), then the process is much easier with guardianship of the person. Many states have tried to offer forms that are user friendly for filing the petition and other documents. Even then, the Court will often appoint an advisor, visitor or guardian ad litem to represent the child.              

What is a Special Needs Trust

Part I: What is a Special Needs Trust (SNT) and How Does It Benefit Clients Seeking Governmental Benefits?

Before answering the SNT question above, let’s start at the beginning: What Is a Trust? A trust is a legal relationship in which the legal ownership of property is separated from the beneficial ownership of the property. In a trust, one person or group of persons (the trustee) holds money or other property (the trust principal or corpus) for the benefit of another person or group of persons (the beneficiaries). A trust may also be described as a fiduciary relationship in which one person is the holder of the title to property, subject to an equitable obligation to keep or use the property for the benefit of another.

Let’s move on to the primary question: What Is An SNT? Historically the SNT is a hybrid of the irrevocable discretionary trust. In the 1970s, parents of children with severe, chronic disabilities (primarily mental retardation) worked with trust and estates counsel to develop legal documents as vehicles that would not only provide for the transfer of funds for the benefit of their children with severe disabilities, but more importantly mandate to the trustees detailed instructions that addressed the quality of care and the quality of life of the children to be served by the trustee.

Now that we know what an SNT is, let’s look at what it does. The SNT vehicle takes unilateral, discretionary powers given to trustees for various situations and broadens the scope, expanding specifically how the trustee supplements the needs of the trust beneficiary. The SNT details how the trustee within his/her/its sole discretion administers the trust for the sole benefit of the beneficiary, providing health and medical provisions; social and educational programs and services; recreation, vacations and even trips abroad where appropriate; and institutional or group home transition and placement, promoting community based, least restrictive alternatives that would enhance the quality of life of the trust beneficiary.

Additionally, the SNT is developed as irrevocable and spend thrift in nature. The creator of the SNT develops language that bars any use of trust funds for services already provided to the beneficiary through federal and state programs. The SNT is exempt under federal and state agency regulations that consider such trusts appropriate as a matter of public policy.

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