Casey Kasem and “I Dream of Jeannie”

The World may ultimately remember Casey Kasem for his charm, talent, and humanity spanning a remarkable career in radio top 40, but thanks to “Despicable Me” Jean Kasem (aka “I dream of Jeannie”), it may recall one of the most despicable public displays of hatred between the “new wife” (well, 1980..which leads me to question just how many decades Casey Kasem has had dementia) and his adult children. Does it always take 2 to tango or was this bizarre woman the over the top drama queen whose “toddler-aged” maturity kept the drama going 24/7?

It’s shameful that details of person’s most intimate, private life end up on display at the Guggenheim before they have passed away. It results in a nightmare circus scenario where dignity is cast aside in favor of life in a fishbowl. But, if nothing else, the behavior of his feuding family members brought “end of life” issues front and center and made us think about things we simply don’t want to address. These issues are frequently left undone and thrust upon the lap of someone who is in no position to carry the weight of the choice you have forced them to make because you didn’t.  

LEWD BODY DEMENTIA 

Kasey is the father of 4 adult children (3 from a previous marriage and Liberty Kasem, age 22). He was diagnosed (incorrectly) with Parkinson’s Disease in 2007 and ultimately deemed to have Lewd body dementia.  Lewd body dementia is the most misdiagnosed form of dementia. Like Alzheimer’s, confusion and memory loss are present, but visual hallucinations, severe sleep disruptions, fluctuating alertness and problems with movement are also symptoms.

ADVANCED DIRECTIVE TO KERRI

As Casey’s dementia progressed, so did sepsis. Despite his 1980 marriage to Jean, Kasem granted Kerri the right to determine his ultimate fate via advanced directive in 2007. The nasty feud would ultimately come to a head in the fall of 2013, when Kerri, Julie, and Mike staged a protest outside of their father’s home, frustrated by Jean’s efforts to block all contact between Casey and his children. The snub of the POA apparently did not go unnoticed by Jean. Jean later entered a confidential settlement with Mike and Julie (so that they could see their father). Kerri refused and sued Jean for medical conservatorship.The Judge initially denied the application, finding that Casey was well cared for by Jean, but reversed his decision later, permitting Kerri to remove hydration and feeding pursuant to the 2007 Advanced Directive, granting Kerri the right to make this decision if Casey were terminal. 

THE TWIGHLIGHT ZONE

It was at this point that everything took a “twighlight zone” bizarre turn– as Kasem was reported missing. Jean Kasem abruptly removed her husband from the Santa Monica nursing home where he was being treated–along with the medical equipment attached.  

Kerri’s Facebook post stated:

“I believe my father’s wife fled the country (or possibly went to an Indian Reservation) with my Dad because she knew I would win in court today,” Kerri Kasem said in a Facebook post. “The judge ordered, Adult Protective Services, the PVP Attorney and the police to look for him. Please pray that he is safe.”  His daughters filed a missing persons report with police, triggering an interstate lookout for Kasem. Sheriff’s deputies in Kitsap County, Washington, located him at a friend’s home there a day later. After staying 40 minutes and determining that Kasem was alert, not in distress and was receiving appropriate care, the deputies left.

Los Angeles County Superior Judge Daniel Murphy temporarily expanded Kerri Kasem’s powers over her ailing father at a May 24 hearing. The judge also said that he could not “travel anywhere without a court order and until the doctor examines him and gives him clearance for a journey.” Kerri Kasem got the judge’s approval to visit her father for an hour.

“Shame on these children,” Jean Kasem told reporters after the hearing. With more theatrics, she then played an audio recording of what sounded like a groaning man, saying the moaning came from her husband when he heard about the court activity. “He’s crying,” she said. Jean Kasem’s anger at her stepchildren boiled over as paramedics arrived at the home in Washington where she and her husband were staying to carry him to a hospital on June 1. She initially appeared to refuse to let paramedics into the home.

RAW MEAT FOR “DOGS!”

As her ailing husband was loaded into an ambulance, she stormed down a driveway and tossed a package of hamburger meat near Kerri Kasem. While referring to King David of the Bible, she said she was throwing the meat at “the dogs.” Kasem was admitted to St. Anthony Hospital, where he was treated with antibiotics through IVs, blood pressure support medicine and care for his bed sores. His condition was listed as critical. Jean Kasem’s lawyer filed a declaration in the Kitsap County court on June 4 attacking Kerri Kasem, claiming she is a member of the Church of Scientology–a lie according to Kerri’s camp.

All of Kasem’s children, his brother and his wife gathered at St. Anthony’s Hospital on Friday, preparing to say goodbye. Kasem “won’t be with us much longer,” and despite their battle, hoped that Jean and Liberty would join them for their father’s sake. “If he opens his eyes, I want my dad just once to see everyone standing around him, putting our differences aside and let him know how much he is loved by everyone, including Jean and Liberty,” she said. 

Their brief hopes were quickly dashed when Jean appeared in Court, accusing Kerri of being a Godless woman who pursued her own father’s death to cash in her two million dollar insurance policy on his life. While Jean briefly convinced the Judge to reinstate hydration and nutrition, it was short-lived as the Judge ordered it removed again upon reviewing the medical records and being convinced that Casey was at the end. The tug of war ended Father’s Day when Kasem passed away at the age of 82. 

THE MIRROR HAS TWO FACES?

For Kerri, Julie and Mike, their dispute with Jean was about love–a claim Jean denies, pointing to Casey’s fortune as the sole reason. Reaction? Speechless momentarily, but a mirror comes to mind because almost without exception, projection is a work in a person consumed by greed when he or she accuses someone else of it.  Jean and Kasey were married 33 long years, but one thing is certain–she never went without during those years. So, who is the greedy one in the equation? When a man dies with an estate valued at $80 million, is there really a problem sharing the wealth?  Nevertheless, the moral of this awful soap opera is that even the best laid plans fail, but we still have to try.

BRAVE NEW WORLD

National statistics have consistently revealed that we are living in a “brave new World,” where tech explosions in medicine have created an entirely foreign dilemma for retirees and boomers…what to do with the next 20 or 30 years of your existence? Pew Research indicates that 10,000 boomers per day turn 65 and this generation will be 20% of the total U.S. population by 2050, according to the National Center on Elder Abuse. “We’re in the midst of a longevity revolution,” said Ellen Goodman, co-founder and director of The Conversation Project. “We now live 30 years longer than we did 100 years ago. Sixty is not the new 50; 60 is the caregiver of the 85 year old.” 

Eighty-five-year-olds today are driving, playing tennis and going to book clubs. But, not all 85 year olds are so fortunate and boomers are also caring for ill parents for potentially a decade or more. Add the elder looting epidemic to the equation and the enormity of the problem begins to take shape. 

BEST LAID PLANS OF MICE AND MEN

Life is expensive in 2014 and we should all get very worried with the State of affairs in guardianship. The cottage industry of white collar criminals are busy making plans of their own, crunching the numbers. A generation that has lived “high on the hog,” deep in debt, to impress the neighbors is suddenly faced with their own mortality and caring for their ill parents–something they did not plan for. Consider that 13% of the Nation’s population controls 80% of the Country’s wealth and it hardly takes a genius to anticipate where all of this is going–it’s not good.

It suddenly makes perfect sense to me why my grandparents lived frugally and did not want people knowing they had money. But, at least their bankers were honest men back then. Today, you can’t even trust your banker usually–as evidenced by the wealthy clients bankers and lawyers are now referring for court initiated guardianship–right after doing their estate planning. While the assumption behind estate planning is that your plans will be honored by the Courts when the time comes, this is not always the case. 

In the pit of morality that is “probate court,” I wonder if your odds are 50/50; yet, the stakes are simply too high to not do it anyway. Luann Anderson recently observed the knack attorneys have for creating industries to benefit themselves–something I have witnessed first hand in the past 15 years time and time again. When I graduated law school, medical malpractice was “hot” with large jury verdicts. The practice came to a screeching halt by Article 4590i–a Statute which flatlined claims against Physicians in Texas for all but the most egregious negligence.

Toxic Tort claims filled the void and business was booming with 95% of the claims bogus–but sufficient motivation for petrochemical companies to pay lawyers to go away. Simple math reveals that the attorneys were the only true beneficiaries of these claims, but if 100 workers sue 100 defendants and get $1000 from each defendant, the settlement is a whopping $10,000,000. The Lawyers got 40%–each time they filed a frivolous case.  It was demoralizing to work in a legal “racket,” even knowing I was on the right side of the dispute.  Thankfully, a federal judge indicted a few radiologists and the Legislature stepped in again with HB4 and it was over.

For the next 30 years, experts believe that ElderLaw will rise to the forefront of the practice of law, simply due to the demographics of our population. According to the Ex-Exec. Director for the National Guardianship Assn, “there is money to be had in guardianship and we need to go get it!” Everyone hold your wallets!

END OF LIFE PLANNING

I can hardly think of a topic I would prefer to discuss less and even if your wishes are not honored, I still believe that everyone should take the time to make “end of life” decisions and execute documentation that answers the “what if’s.” Being a guardianship/probate attorney in 2014 is enough to jade anyone. Corruption has a way of affecting your entire perspective.

I have seen such injustice the past two years, I was actually surprised when I heard that a local probate Judge’s rulings were exactly what they were supposed to be–by law and the Durable Powers of Attorney granted. It’s an evolving situation that is always subject to change until the case concludes, but thus far, I must admit, I am relieved to see the pendulum swing the other direction.

So, my recommendation is expect the worst, but prepare for the best. Texas Advocates are making unprecedented headway in Austin. Countless horror stories were recounted live before the Sunset Review Board this week–something the media is taking note of. Alternatives to guardianship such as supported decision-making, are becoming possible as people of greater influence join our ranks, crying foul.

The most important thing you can do is educate yourself FIRST about DNR’S (do not resusitate), Health Care Proxies, Durable Power of Attorney for Health Care, and Living wills. Learn what they are, what they do, and whether you need one BEFORE you visit an estate planning attorney. Seniors should write down specific instructions about their end-of-life care and identify the designated health care agent in a document called a durable power of attorney for health care. The written record ultimately becomes a gift to family members, since it eliminates the guessing game. Know the particular laws in your State, as some States have a pecking order (wife, kids) while in others, a patient’s tending physician is left to determine who will be the best decision-maker. Please contact us if you need forms or simply wish to ask questions of an attorney. In the interim, the following links are great resources for standard documents:

FORMS

2014 Durable POA for Medical Decisions Texas

DADs Advanced Directive to Family/Physicians

Out of Hospital DNR

Thinking Ahead: Life at the End by DADs

Jenny Hatch Justice Project!

The guardianship system in this country raises serious concerns. That’s why the guardianship trial of Jenny Hatch, a vibrant and active 29-year-old in a battle over who controls her life, struck such a chord. Jenny spoke for many other people with disabilities when she said clearly in her trial: “I don’t need guardianship. I don’t want it.” On Friday a Virginia Judge denied guardianship to the parents of Jenny Hatch. Hatch will instead be able to live with her friends, couple Kelly Morris and Jim Talbert, as she had requested. This is a victory, but it should never have come to this.

If anyone else had been placed in an isolated location, against her will, with her cell phone and computer taken away, and not allowed to leave the building without permission, as Hatch was, she would either be able to lodge a charge of kidnapping, or be a prisoner convicted of a crime.But, because Hatch is a person with a disability – and only because of that – it is completely legal, even though she has done nothing wrong.

Guardianship can, and often does, deprive a person of the ability to choose where she lives, who she sees, when she gets up in the morning, what she eats for breakfast, whether and where she works and whether she is allowed the right to vote.

Guardianship is typically created under two circumstances: When adults – often seniors – develop a disability, especially one that affects the ability to manage finances or make complex decisions, their spouse or child is often encouraged to become their guardian.

And, when a child with developmental disabilities reaches 18, her parents are often encouraged to become the child’s guardian – ostensibly so that they can continue to participate in medical and educational decisions for the child.
In both circumstances, other less restrictive options are available.

In the U.S., creating a power of attorney for health care or a power of attorney for financial matters is a better solution much of the time. These are contracts between the person with a disability and someone they trust – and choose themselves – to help advise them, or to make decisions if they are unable to. The person with a disability still keeps the right to make decisions in other areas of his or her life.

In another model, known as “supported decision-making,” the person with a disability chooses a team of people to help her with decisions, and who have signed up to be available for advice and assistance. In Hatch’s case, the judge was persuaded that this was the model to move toward. He recognized that Hatch should be able to choose who she lives with, who should advise her, and what she does with her life – but, like all of us, she would benefit from a support system to help with major decisions. Talbert and Morris will have guardianship of Hatch for one year – after which they will move to the supported decision-making model.

Supported decision making and providing powers of attorney are the options we should look to first – rather than reflexively choosing guardianship and stripping a person of every civil liberty.

We still know too little about the full picture of guardianship in the U.S. We don’t know how many people are under guardianship, much less the distribution between younger people with disabilities and seniors. Most importantly, we don’t know how many guardians are respectful of their wards’ wishes, and how many are callous, or downright abusive. What we do know is that it is the most draconian deprivation of an individual’s rights in civil society.

So, what should we do? Stay out of probate Court! The only humane choice we have is to start supporting people with disabilities to maximize their potential just as we want for ourselves and our children. Can you bury your head and pretend it’s not happening? I cannot.

Texts, Emails & Social Media in Divorce

Electronic communications such as texts, email and even posts on social media sites such as Facebook and Twitter are fast becoming the most important pieces of evidence in divorce cases. In fact, 94 percent of 1,600 lawyers recently surveyed by the American Academy of Matrimonial Lawyers (AAML) claimed that text messages had increasingly become the most damaging evidence in divorce cases. The same survey shows sharp increases in evidence via texting (62 percent), social media (81 percent) and emails (23 percent). So, how can you protect yourself before and during a divorce?

We suggest you consider the following tips

 Protecting your digital assets

 The most important thing you can do to protect your digital world is to change all of your passwords on a rotating basis and do not write them anywhere snooping eyes may find them. Rules of thumb for strong passwords are using words not typically associated with you combined with a special character and number.

Not only does this apply to your email and social media accounts, but to especially to the password that “unlocks” your smartphone. As texts have increasingly become the most common form of evidence in divorce cases, these sometimes emotionally-charged messages need to be shielded from potentially prying eyes.  We are not advocating dishonesty; but, we understand that there may be occasions where a person engages in communications they later regret. A myriad of life circumstances can cause even the best of us to fall short of our aspirations. We simply advise people to avoid a spiteful or angry spouse from taking unfair advantage of you in a divorce for lapses of judgment you probably regret.

 Is snooping software legal?

 Passwords are also important for your computer, laptop and new devices such as an iPad. Why? Some spouses try to obtain evidence (or even communications between their spouse and a divorce lawyer) by installing “snooping” or spyware software onto their spouse’s digital devices. Snooping software takes digital “pictures” every few seconds of incoming emails and other information, which can then be sent automatically to an email address.

The legalities of snooping software are often murky, so most divorce lawyers advise their clients to refrain from becoming a cyber spy. Courts are increasingly permitting the discovery of public posts on Facebook and Twitter, but occasionally even private emails.  Emails are generally considered private and sometimes confidential or privileged if to a lawyer.  This renders snooping software to capture a spouse’s emails potentially illegal. The result is Courts may be reluctant to admit this into evidence, if at all.  It is important to note that divorce law / family law is evolving rapidly in the area of social media, texting, spyware and the like. This means that what might be inadmissible today may change tomorrow.

Worried about spyware?

 If you are worried about spyware being installed unknowingly on your digital devices, there are anti-spyware programs that can detect them. However, not all anti-spyware programs can do the job.  If you want to be certain you aren’t being “watched” by spyware? Take your devices to technicians who specialize in detecting digital spies.

The best practice is to avoid posting, tweeting, texting or emailing anything you would not want the World to see, including your spouse. But attorney-client communications are a concern. While they are privileged and inadmissible, the damage is done simply by viewing them-in seeing your strategies and plans of how to approach the case. If you are in a contentious divorce or believe it’s a matter of time, take time and protect yourself.  You can lose custody of your children over this—in addition to significant assets.

Determining Primary Custody in Texas

Parents frequently asked “How is primary custody determined by the Courts?” The term “primary custody” is commonly used jargon to describe the Parent with the exclusive right to designate the child’s primary residence, since parents will be deemed Joint Managing Conservators in most cases (“JMC”). Joint Managing Conservator denotes the fact that both parents have the same rights and duties, with the exception of the parent who will provide the child’s residence.  The Texas Family Code contains a rebuttable presumption that it is in the best interest of the child to have both parents co-parent and Courts rely upon the Standard Possession Order in most cases.

Circumstances that might cause a Court to deviate from a Standard Possession Order or Joint Managing Conservatorship incude: prior family violence towards any member of the family, whether either Parent has a history of abuse or neglect (both of which would prohibit a JMC), whether the Parents can peacefully co-parents, and other factors that might render a Parent unfit to serve as JMC.   See Tex. Family Code § 153.004.  The factors generally considered include:

• The parent’s ability to give first priority to the child’s welfare;
• The parent’s ability to reach shared decisions in the child’s best interest;
• The parent’s ability to encourage and accept a positive relationship between the child and the other parent;
• The parent’s role/participation in the child’s rearing;
• Whether appointment of the parent as JMC will benefit the child’s physical, psychological and emotional needs and development; and
• Where the parents live in relation to one another.

See Tex. Family Code § 153.134.

If one parent has clearly been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts, demonstrates lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.

Using Social Media to Deny Alimony in Texas

A trend has emerged in the context of Texas Family Law to refer to the opposing spouse’s social media accounts in search of “smoking guns” and obtain an edge. This practice has provided unbelievable evidence and is seen primarily in cases where the Parties’ estate is substantial and one party seeks alimony from the other. Alimony is an exceptional remedy in Texas, other than temporary. It is governed by Chapter 8 of the Texas Family Code.

Alimony is limited to the following circumstances:

• Spouse from whom sought was convicted of a crime involving family violence within 2 years or during the pendency of the case
• Marriage lasted 10 years and spouse lacks sufficient resources to meet their minimum reasonable needs
• Spouse is unable to care for self due to incapacitation due to physical or mental disability
• Spouse seeking required to spend substantial time caring for their child due to a physical or mental disability
• Spouse seeking clearly lacks earning ability in the labor market adequate to meet their reasonable minimum needs, defined by Section 8.054

Factors considered in determining alimony include: resources, comparative wealth, education, skills, duration of marriage, contribution as homemaker, physical and emotional condition, ability of payer to fund alimony and child support, BAD ACTS of a spouse (adultery), marital misconduct, efforts to find employment and/or job training. As one can see, alimony can be an uphill battle, particularly considering property divisions being roughly equal, aside from personal property.

Two ways in which social media is commonly used is to negate disability and demonstrate marital misconduct. In one case, the wife was denied alimony based on her alleged disability where Facebook photos showed her water skiing. In countless others, affairs are discovered through discovery of emails, text messages, Twitter, online dating services, and other social networking sites. While not a Texas case, many Courts agree with Largent v Reed, 2001 WL 5632688 Pa. Com. Pl.  This Court ruled that Facebook offers no expectation of privacy. In a South Texas case I litigated, the Judge shockingly allowed the Plaintiff’s extravagant lifestyle to be paraded in front of the jury in a personal injury case, where wealth is in admissible to prove liability.

Word of warning to social media users: never forget that anything you write or post can and likely will be used against you. With high stakes, can you really afford it? [wpResize]

Family Law – Texas Divorce

Staying married has its benefits. You can get much more sympathy from a bad marriage than a good divorce.” 

Few things in life are as thrilling as marriage or as painful as divorce; yet for those who must endure the pain, there is hope, provided you keep diplomacy and the best interests of your children above other concerns. Far too many families are traumatized by divorce when the Parties lose sight of what’s truly most important–the future. The two most contentious issues in family court litigation are money and child custody. Many times, a party remains bitter, envious, and angry over a former spouse’s infidelity or misconduct and chooses to punish them at the expense of their children and own mental health. If you find yourself feeling this way, it’s highly recommended that you seek counseling and try to find closure so that you don’t sabotage the happiness you might otherwise find going forward. If you have children together, you will truly understand “til death do you part” should post-divorce life be filled with bitterness and conflict.

Where diplomacy and compromise are possible, it is always worth the extra effort to try peace first. This does not mean you roll over, resigned to whatever your spouse wants you to have, but only that your strategy be geared towards negotiation before declaring all out war. You owe this to yourself and Your children to at least try.  Many times, you can achieve the same or better objectives by approaching the “root canal” with a conciliatory attitude. Anger and revenge typically cause the opposing party to respond in like and dig their heels into the sand, denying you thins that you could easily have negotiated were you desire not to punish. This applies equally to money, property, and child custody. Never forget that you will be dealing with your soon to be ex-spouse for the foreseeable future if you have children together. Nothing is quite so miserable as the fallout from a bitter divorce. It’s absolutely devastating to your children. Having a skilled attorney goes without saying, but the second best way of achieving your objectives is diplomacy.

Some issues are not worth fighting to the bitter end over. With the Texas Family Code dictating an equitable division of the marital estate and the terms of custody and visitation for most cases, it’s important to count the cost of waging war. Legal fees can be prohibitive. We believe attorney’s fees should be representative of the benefits you receive. While child custody is usually the most expensive battle that could end in loss, fees pertaining to community assets should be reasonable in terms of what’s at stake. It’s key that you pick your battles and while certainly tough, not unreasonable. The truth about divorce is everyone loses to some degree. It’s how you deal with the process and treat one another despite the pain that dictates your future. Be ready to give and take and the process will go all the more smoothly.

When it comes to children of the marriage, experts cite these things as key to the future happiness of kids: don’t talk poorly of your ex or their new partner, be flexible in encouraging your children to spend time with both parents, be willing to accommodate each other’s schedules,  make a decision to forget and forgive, never allow money to be a source of friction involving your kids, be courteous to your ex at school events, pick Your battles, be discreet around York children, try to maintain good relations with your ex and his or her significant other, don’t pressure Your kids during holidays, and remember the golden rule. Learn the art of letting go. We counsel clients to approach divorce as peacefully as possible, allowing the attorney to be the “bad guy” if required to get the job done right. There is light at the end of the tunnel. [wpResize]

Child Custody – Standard Possession Order

In Texas, Courts almost always defer to the Legislature-created “Standard Possession Order,” which seeks to fulfill our State’s goal of promoting meaningful, continuous contact with both parents in the event parents divorce, as many do these days.  There are rare circumstances which may cause a Judge to veer from the Standard Possession Order found in Chapter 153 of the Texas Family Code, such as the one parents residing out of State, the parents being incapable of working together for the best interests of their child or children, or in other extraordinary circumstances where it simply is in the child’s best interest to do so.

Though rare, where parents have an openly hostile means of dealing with one another, Judges will grant sole custody to the parent deemed most appropriate according to the best interests of the child. In these extreme cases, the non-custodial parent enjoys more limited “input” on critical decisions as well as mere visitation. Courts typically make every effort to avoid this extreme result. If parents cannot reach an agreement, the Court will. Commensurate with Texas’ public policy of ensuring frequent meaningful access to children by both parents, the Standard Possession Order has been deemed to best accommodate the interests of the children and parents. Absent agreement or compelling circumstances, visitation rarely deviates from the Legislature created Standard Possession Order (“SPO”).

A copy of a Texas SPO may be found here. The terms of visitation vary for children younger than three and where the parties reside 100 miles or greater apart. Put simply, the non-custodial parent will have access the 1st, 3rd, and 5th weekends of each month, every other Birthday, Christmas, Thanksgiving, Spring Break, as well as Father’s or Mother’s Day, accordingly. Summer vacation time spans from 30-42 days with some qualifications depending upon notice to the other parent by April before the preceding summer and distance apart living. The Non-Custodial parent is also granted mid-week visits and the parties divide some time on key holidays such as Birthdays, Thanksgiving, and Christmas Break.

Visitation cannot be interfered with even if child support payments are not made. It is a crime to intentionally violate an SPO to deprive the other parent of access according to the terms of the Order. If you have questions or need an attorney to modify custody or visitation, we can assist you, provided one year has elapsed since your decree, the circumstances of the child or a party have substantially and materially changed and modification is in the child’s best interest.  Call us 832.315.8489. cls@schwagerfirm. [wpResize]

Autistic Intelligence is not always what meets the I.Q.

 

There’s more to the intelligence of autistic people than meets the IQ. Unlike most individuals, children and adults diagnosed as autistic often score much higher on a challenging, nonverbal test of abstract reasoning than they do on a standard IQ test. The same autistic individuals who score near or below the IQ cutoff for “low functioning” or “mental retardation” achieve average or even superior scores on a test that taps a person’s ability to infer rules and to think abstractly about geometric patterns, Mottron’s team reports in the August Psychological Science.

“Intelligence has been underestimated in autistics,” Mottron says. Autistic people solve problems and deploy neural resources in unusual ways, which are poorly understood and might contribute to problems with IQ tests, he asserts.  Mottron regards autism as a variant of healthy neural development. For that reason, his group-including study coauthor Michelle Dawson, herself diagnosed as autistic-prefers the term “autistic” to “person with autism.”

The researchers studied 38 autistic children, ages 7 to 16; 13 autistic adults, ages 16 to 43; 24 nonautistic children, ages 6 to 16; and 19 nonautistic adults, ages 19 to 32.   Volunteers completed an age-appropriate IQ test and a Raven’s Progressive Matrices test. The nonautistic children and adults scored slightly above the population average on both tests. Autistic kids and adults scored far higher on the Raven’s test than they did on the IQ tests. These youngsters’ average IQ was substantially below the population average, but their average score on the Raven’s test was in the normal range.

One-third of autistic children qualified as “low functioning” by IQ, but only 5 percent did so by Raven’s scores. Moreover, another third of the autistic children achieved “high intelligence” on the Raven’s test.   As in previous research, autistic volunteers performed well on an IQ task that required them to reproduce geometric designs using colored blocks. The new findings confirm prior indications that autistics score poorly on IQ tests despite processing perceptual information well, comments psychologist Uta Frith of University College London.

Autistics thus succeed only on self-explanatory tasks, such as the Raven’s test.   The Raven’s test may measure autistic intelligence better than an IQ test does, adds psychologist Helen Tager-Flusberg of Boston University. It measures fluid intelligence, which is true IQ as opposed to crystallized intelligence, or what one has learned. The test most commonly used in schools is the Woodcock Johnson. The Wechsler is also used but Autistics perform poorly on both because they are languaged based in content and method. This study is ground breaking and proves that our kids have potential inside. It’s up to us to help them achieve it. [wpResize]

Relocation in Texas

Relocation has been a hot topic for family lawyers and for some of their clients for a few years. Courts have also published decisions in this area. With litigation involving the right to establish the child’s domicile becoming prolific, the guidance offered by these decisions is generally well-received and considered long overdue. The first decision from this group of cases was Lenz v. Lenz, 79 S.W. 3d 10 (Tex. 2002). The Supreme Court identified factors to be considered in deciding a relocation case, (1) the continued presence and maintenance of German culture in the children’s lives; (2) extended family and friends in Germany; (3) better employment opportunities and improved financial situation for the custodial parent; (4) the potential for the custodial parent’s improved emotional state; (5) the ability of the non-custodial parent to relocate or arrange a work schedule allowing for regular visitation; and (6) the custodial parent’s willingness to arrange flexible visitation.

The Lenz case also stands out because both parties and their children were German citizens. Left unsettled by the Supreme Court’s decision was the question regarding foreign nationals living in Texas and the Court’s authority to prevent relocation of their children to their native countries through use of a domicile restriction. As the case was decided in favor of Romy Lenz without addressing this question, it will likely surface in the future as a legitimate issue for appellate review.

In Echols v. Olivarez, 85 S.,W. 3d 475 (Tex. App.-Austin 2002, no Pet.), the Austin court of appeals held that the best interest of a child cannot be determined in a vacuum and that “slavish adherence” to such policy ignores the reality of a divorce family.  In affirming an order allowing relocation, the court recognized that the child’s best interest may be tied to the custodial parent’s happiness, determining that the child would be a direct beneficiary of the mother’s job promotion, in terms of the financial and emotional benefits realized by the move.

The final relocation case in 2002, In Re C.R.O. and D.J.O.,a trial court’s decision refusing to permit relocation. The Amarillo court of appeals determined that the maintenance of a relationship between the children and their father outweighs the mother’s sound marital and financial considerations for a move to Hawaii. While the court found no violation of the mother’s constitutional right to travel, it did not address the merits of the mother’s equal protection argument since the issue had not been raised at the trial court level.

The Amarillo decision provides a subtle reminder to those prosecuting a requested relocation: Should you plan on challenging the constitutionality of our domicile restriction statute on appeal, any such defense must be affirmatively pled and raised in the trial court. The significance of these Court decisions may indeed come down to how far the distance is, given that two of these cases were off the mainland. [wpResize]

Special Needs Planning in Guardianship

As your special needs son or daughter reaches the age of the majority, 18, parents be aware of the need to begin transition services and obtain a guardianship so that you can continue to have access to information that would otherwise be confidential, make decisions on behalf of your disabled child, and receive State and/or Federal government benefits on their behalf. Most parents do not realize that upon reaching the age of 18, a disabled student is emancipated and legally able to make his or her own decisions, until a court deems otherwise.  This means that theoretically, your son or daughter’s school can bar you from information about your child unless you have a guardianship in place.  You will need an order of guardianship to attend to your child’s financial, medical, and educational matters.

You can file for guardianship as early as six months prior to his or her 18^th birthday and should do so as soon as possible. While temporary guardianships are available in the event your guardianship application is not resolved prior to his or her 18^th birthday, a plethora of hiccups can result from not being prepared ahead of this big day. Guardianships are not cheap, but necessary. They are not decisions Courts take lightly, with many Statutory probate courts assigning Court investigators to conduct due diligence and determine what is in your child’s best interest. In my experience, the “best interest of the child” standard in Guardianship is taken much more seriously than that of Family Court, though the definition is essentially the same. Due to the risk of exploitation and abuse inherent with an intellectually or physically disabled adult, the Courts will scrutinize applicants much more carefully than one would be in Family Court.

Guardianship will usually require you to go to court. If a guardian of the estate is appointed, a bond is required. The Judge will appoint an Attorney Ad Litem / Guardian Ad Litem to protect your son or daughter’s interest and serve as their lawyer or guardian ad litem. You must serve not only interested persons who do not execute waivers, but you must serve your child by constable. Very methodical processes are in place to ensure that those whose rights are being taken will not be victimized by proposed guardians.  While guardians typically obtain guardianship of the person and estate of the ward, Courts have been known to Order one, the other or both and may separate the guardianships between persons where the need is apparent.

As soon as reasonably possible and ideally, upon filing, a certificate of medical examination (CME) or a document establishing intellectual disability, is required to be submitted to the Statutory Probate Court. As part of the evaluation process, the physician answers specific questions about the person’s mental and physical capabilities. The physician gives his or her professional opinion about whether the person has capacity to make his or her own decisions, vote, drive, marry and carry out other specific activities. Once a guardian is appointed, there are ongoing legal requirements which may require the assistance of an attorney. A guardian must file annual reports and/or annual accountings

As a full guardian of the person, you have the legal right and the responsibility to make all personal decisions for the ward. The guardian decide where the ward will live, whether to limit contact with family and friends, medications the ward is to receive, the personal rights that will be afforded the ward, medical and/or psychological treatment to be given, educational decisions.  By assuming guardian of the person and estate, you should be prepared to make all decisions on the ward’s behalf in their best interest for the duration of the guardianship, which is typically indefinite. Be careful not to get caught behind the eight ball and contact an attorney as soon as possible during your child’s senior year to begin transition planning. [wpResize]

Special Needs Trusts

A Special Needs Trust is a specialized legal document designed to benefit an individual who has a disability. This may also be called a Supplemental Needs Trusts, denoting the items upon which trust assets may be spent.  It is important to remember that a Special Needs Trust is a living legal document that is meant to not only maintain benefits eligibility, but also to bring enjoyment and new, positive experiences to the beneficiary.

A Special Needs Trust is most often a “stand alone” document, but it can form part of a Last Will and Testament. It is a living, breathing document.  A Supplemental Needs Trust enables a person under a physical or mental disability, or an individual with a chronic or acquired illness, to have, held in Trust for his or her benefit, an unlimited amount of assets.  In a properly-drafted Supplemental Needs Trust, those assets are not considered countable assets for purposes of qualification for certain governmental benefits. These benefits include Social Security Supplemental Income (SSI), Medicaid, vocational rehabilitation, subsidized housing, and other benefits based upon needs. For purposes of a Special Needs Trust, a person is considered impoverished is his or her personal assets are less than $2000.00.

A Supplemental Needs Trust provides for supplemental and extra care over and above that which the government provides. Trusts have been used for years based upon case law. In 1993, Congress created an exception under the amendments to the Omnibus Budget and Reconciliation Act (OBRA-93) which specifically authorized the use of Supplemental Needs Trusts for the benefit of individuals who are under the age of 65 years and disabled according to Social Security standards. The Social Security Operations Manual authorizes the use of Supplemental Needs Trusts to hold non-countable assets.

Each Supplemental Needs Trust is its own “entity” with its own Federal Identification Number (Employer Identification Number) issued by the Internal Revenue Service. The Trust is not registered under either the Grantor’s or the Beneficiary’s Social Security Numbers. According to Congress a Supplemental Needs Trust must be irrevocable. A properly-drafted Trust will include provisions for Trust termination or dissolution under certain circumstances, and will include explicit directions for amendment when necessary.

This means a Trustee will always be appointed for the management of the Trust. The trustee must also be a bit removed from the beneficiary. So, you might be wondering what are the restrictions on a special needs trust?  What can it be used for?  In general, the assets cannot be used for everyday living expenses. Specifically, the trust can be used for “Supplemental and extra care over and above what the government provides.” A properly-drafted Supplemental Needs Trust will work on a “sliding scale”; that is, in the impossible event that the government provides for 100% of the disabled beneficiary’s needs the Trust will provide 0%. If there are no governmental benefits available, the Trust can provide 100%.

Although there are Medicaid rules that say that the Trust cannot be used for housing or food, these rules have to be interpreted carefully. For example, there is no restriction on purchasing an accessible home or making accessibility adaptations to an existing home and having the Trust own or pay for them.  Likewise, although foodstuffs are not strictly allowable under the rules, social events such as dinner parties  are; likewise, vacations and entertainments are permitted.  Contact an attorney to create a special needs trust as mistakes can completely invalidate your trust. You can reach us at 832.315.8489 or cls@schwagerfirm.com. [wpResize]

Special Needs Trusts: Autism

When it comes to creating a special needs trust for a disabled loved one of a client, too many practitioners focus only on the preservation of public benefits, says Stephen Dale, a disability advocate and specialist on estate planning. “Maybe 20 years ago that was good enough, but if that’s what you’re doing, you need to broaden your scope.”“To expect the government to provide adequate resources for a disabled loved one could be a mistake,” Dale warns.

In the ABA-CLE “Building a Successful and Supportive Special Needs Practice,” Dale explains that as states grapple with budget shortfalls, funding to social service programs across the country are being severely cut or phased out entirely. Taking the place of public agencies are an increasing number of private-sector providers.

Not only must today’s special needs trusts include the flexibility to address changing circumstances, but the attorneys preparing them must stay up to date on the ever-evolving environment in order to be effective, Dale says, noting that advocacy organizations such as the Arc, Autism Speaks and National Alliance can help practitioners stay informed.  A special needs trust that can adapt to changing circumstances involves including the right team of advisors who will advocate for the needs of the protected loved one. These advisors collectively use their discretion in the best interest of the beneficiary—advocating for appropriate care, preventing abuse, keeping up with changing laws and investing funds.

A team approach can make a positive difference. Too often, people just name one of their family members as conservators or successor trustees, and it doesn’t work.“What you’ll often find is parents will serve as advocates for their disabled children, and they will get so involved in being the advocate that they lose sight that not everybody—including their siblings,” while others run far.

Family members can instead be part of a team, functioning as an advisory committee that directs the actions of a trustee. Committees typically include a care manager who interacts directly with the beneficiary, as well as a trust protector who receives all the reports and has the ability to fire the trustee, if necessary. “In the best circumstances, the advisory committee provides a system with checks and balances to ensure the trustee is acting in the best interest and incorporates the family in the process.” It’s imperative to be clear how the trust committee is structured, who’s in charge, and when and how the family members need to act. Attorneys specializing in creating special needs trusts are indeed in a niche practice with expertise standard probate attorneys may lack. Best advice–do your homework. Ask questions and contact us at (832) 315-8489 or cls@schwagerfirm.com [wpResize]