Powers of Attorney v Guardianships

When your child turns eighteen years old, he or she is considered a legal adult. As an eighteen 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.

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

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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The Importance of Care Plans & Beyond

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.

Care plans share information with others who take care of your child. This may include doctors, nurses, therapists, emergency medics, teachers, child care providers, respite providers, grandparents, friends, and neighbors.

An estate plan is much more than a will. An effective plan considers your personal circumstances and goals. The more important purposes of estate planning include protecting your assets during your life, planning for possible disabilities, and ensuring your wishes are carried out both during your life and after your death. Estate planning also includes planning for various health-related contingencies so your wishes are clear even if you cannot make decisions for yourself in the future. Here is a sample Care Plan for your child.

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Spotlight: Wendy Godwin, OTR/L, LMT

Frequently thought of as just a way to relax, massage therapy offers great benefits to adults and children with special needs. Massage can have positive effects on a number of conditions associated with special needs individuals. Needs such as high or low tone, poor circulation, constipation or digestive issues, sensory processing disorder, poor sleep patterns, anxiety, and others benefit from therapeutic massage.

With over 23 years of experience working as an occupational therapist, Wendy Godwin brings a unique perspective to her massage clients. She has worked in a variety of settings including psychiatry, chronic pain, hand therapy, and pediatrics. Licensed in massage therapy five years ago, she integrated this into her professional health services. Today she provides massage therapy to both adults and children, with an emphasis on special needs clients. To learn more, please contact Wendy at gwgodwin81 [at] aol [dot] com.

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St. Peters Program Helps Police ID People with Alzheimer’s, Other Conditions

A new free program in St. Peters could shorten the amount of time it takes for police to return a loved one with autism or dementia to his or her family. Families of people with a variety of health conditions, such as Alzheimer’s disease can provide information voluntarily that could help if their loved ones wander away.

Lt. Tim Snavely said the idea began with Alzheimer’s in mind, but it is open to people with a variety of conditions such as autism, geriatric diabetes, Huntington’s disease, cerebral palsy and geriatric dementia, all of which may make communication difficult.

The department is accepting voluntary information from caregivers and family members who can provide a physical description and current photograph, as well as contact information to call if a loved one is found.

Although the St. Peters program is believed to be the first of its kind among St. Louis police departments, it bears some similarities to a national registry by the Alzheimer’s Association.

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Missouri Closing St. Louis Psychiatric Center

The state of Missouri closed the short-term acute care psychiatric unit at Metropolitan St. Louis Psychiatric Center., which is a 112-bed acute care inpatient hospital led by chief operating officer Anthony Cuneo that opened in 1996.

The reorganization is part of the state’s efforts to save costs. The Department of Mental Health estimates the closures of acute care units in St. Louis, Fulton, and the Southeast Missouri Mental Health Center will save the state $1.5 million in its next fiscal year. Mark Utterback, president and chief executive of Mental Health America of Eastern Missouri said the changes will eliminate an essential service to mental health-care patients who rely on this access to immediate care where they can stay long enough to stabilize. No future plans on alternative facilities are currently being discussed.

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Toy-Lending Library for Children with Developmental Delays

St. Louis ARC developed a new program, Capable Kids and Families, designed to promote early intervention by providing children (ages 0-6) and families with developmentally appropriate toys and therapeutic equipment free of charge. This program allows parents to meet the needs of their children at home by borrowing toys that may be otherwise inaccessible, and then returning them for another family to use.

The Capable Kids and Families’ catalog contains more than 1,700 toys and pieces of equipment to choose from and once a month, a staff member visits each family’s home to observe the children with the toys and provide suggestions for the parents about when it would be helpful to swap toys so that the child can move forward in his or her therapy. While some of these toys are specialized, others can be found at Toys “Я” Us®. The toys and equipment can be kept indefinitely until they are no longer useful for the children’s development.

The St. Louis ARC, a nonprofit agency that supports people with developmental delays launched this program in December 2009 to help parents check out educational and therapeutic toys and equipment that may be otherwise too costly for them. With enough state funding to support 50 local families, a waitlist has started for families waiting to join the program. Eligible families must live in St. Louis and have a child younger than 7 with a delay in their physical, speech, sensory, or intellectual development.

For more information about the Equipment Lending Program, please contact Jean Darnell, the Director of Capable Kids and Families at jean.darnell [at] thecommunitypartnership [dot] org or by phone at 573-368-2849.

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Frequently Asked Questions: Powers of Attorney

Co-authored by Misty Watson & Patrick Murphy.

What is a power of attorney?

• A power of attorney appoints a person to act as an agent for the person who executes the document. An agent is authorized to act for another person to the extent that the document permits. The acts of the agent (also known as the attorney-in-fact) will legally bind the person who granted him or her the power to act.
• Powers of attorney come in a variety of forms. There are two major types of powers of attorney: financial and healthcare. These powers can be combined into one document, but are frequently separate documents.
• Financial powers of attorney can be effective immediately or become effective upon the incapacitation or disability of the person who executed the power of attorney.
• Powers of attorney can also be limited to a certain period of time or last until they are revoked by the person who executed the power of attorney.

What is a durable power of attorney?

• A durable power of attorney remains effective during such periods of time that the individual who executed the document is considered incompetent.
• A durable power of attorney must be designated as such in the title.
• Specific wording must be used for a power of attorney to last during any period of time the person who signed the document is considered incompetent.

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Social Security for Disabled Children and Adults

Social Security provides a necessary financial supplement to any individual with a disability as defined under federal law. There are three types of social security available to an individual with a disability. Social Security Disability Insurance is available to those individuals who have worked at least 10 years and do not currently earn more than $980.00 a month from employment. For those individuals whose disability began before the age of 22, the work history is based upon the individual’s parent. Supplemental Security Income is available to any disabled individual who meets the “limited income and resources” test. The third benefit available under Social Security is Medicare. Medicare is a government health insurance program.

Social Security Disability Insurance

Individuals whose disability began before the age of 22 may be eligible to receive Social Security Disability Insurance (SSDI), or what people commonly refer to as “Social Security.” Typically, an individual receives SSDI based upon his or her work history and amount of prior earnings. However, an adult disabled before the age of 22 may have little or no prior earnings and would not typically qualify for SSDI.

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The History of Missouri Special Needs Trusts

Genesis of Current Law: Case Study

A Special Needs Trust (also known as Supplemental Support Trust) is a legal mechanism that allows families to provide funds to relatives with special needs without interfering with their government benefits. The Missouri Division of Family Services (DFS) and the Social Security Administration analyze the special needs person’s assets annually to determine if he or she qualifies for government benefits, such as Medicaid and Supplemental Security Income.

If that person has more than $1,000-2,000 (depending on the program) in assets, he or she will be disqualified and will not receive the benefits. Most families need to maintain government benefits for family members with special needs, but also want to provide additional support.

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