Estate Planning for Special Needs Children

Posted June 16, 2017 in Estate Planning by Michael Lonich.

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June 16, 2017
Estate Planning for Special Needs Children
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Having a child with special needs brings countless challenges to overcome. Parents of these children, regardless of age, are their biggest advocates, providers, and caretakers. Life is unpredictable, but if parents have a well thought out plan they can take comfort in knowing their child will continue to be provided for. Therefore, it is essential that parents of a special needs child plan early regarding their estate.

Setting out an estate plan to provide for a child with special needs has its own unique hurdles. One is to design a plan that supplements a child’s government benefits while enhancing the quality of the child’s life. As a parent, if you leave your child too much outright this may risk them losing their public benefits. Another hurdle to overcome is to figure out how to provide for proper supervision, management, and distribution of the inheritance through a third party created and funded Special Needs Trust. The task of estate planning may feel daunting at times, but with a knowledgeable attorney and good organization parents can execute a successful estate plan.

The ultimate goal is to preserve public benefits for a disabled child. Parents will want the plan to provide a lifetime of money management for the child’s benefit, protect the child’s eligibility for public benefits, and ensure a pool of funds available for future use in the event public funding ceases or is restricted.

These goals can be accomplished by executing a Special Needs Trust. If properly drafted and administered, a Special Needs Trust will allow the child to continually qualify for public assisted programs even though their parents have left them an inheritance. This occurs since the assets are not directly available to the child and because this type of trust has strict limits on the trustee’s availability to give money to the child.

Parents who draft a Special Needs Trust will appoint a trustee to act as the child’s money manager. This is a very important decision because it will ensure the long-term success of the Special Needs Trust. Parents should closely counsel with their attorney before making this selection.

Parents may also wish to appoint a guardian or conservator. A conservatorship or guardianship are court proceedings that designate a person to handle certain affairs for an incapacitated person. Where a conservator cares for the estate and financial affairs, a guardian is responsible for personal affairs such as where the child lives or what doctor they see.

Parent’s planning will ensure their child is cared for in the best way possible. But it is important to plan now. If you are considering drafting an estate plan and would like more information about Special Needs Trusts or other options available, please contact the experienced estate law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship

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How Can Parents Secure Parental Rights in Assisted Reproduction?

Posted June 5, 2017 in Family Law by Mitchell Ehrlich.

Many couples are choosing to begin the expansion of their families later rather than sooner. With this new trend, assisted reproductive technology has gained tremendous popularity in aiding individuals embark on this process.

Assisted reproduction refers to all treatments which involve handling eggs or embryos outside of the body and includes procedures such as: in vitro fertilization, intracytoplasmic sperm injection, donor egg or embryo, surrogacy, gamete intrafallopian transfer, and zygote intrafallopian transfer. As fascinating as these medical processes are, legal considerations need to be addressed when parentage is being determined.

Parentage in the law deals with the legal relationship between parents and a child. We discussed establishing a child’s parentage generally in an earlier blog post here. But the right of parentage earns a new level of complexity when done through assisted reproduction.

Many couples who engage in assisted reproduction use a donated egg or donated semen. And there can be some natural concerns that come up when you are on the side of the donation recipient. Does the donor have rights as the parents-to-be do? How do parents-to-be secure their parentage rights?

Their rights as parents can prevent the donor from seeking parental rights. However, if the sperm donor and the intended parent wants the donor to be treated as the child’s parent then there must be a written agreement stating this prior to conception. Also, if an egg donor wishes to be treated as the child’s parent the court must find satisfactory evidence that the donor and person seeking treatment meant otherwise. This may be demonstrated by the donor taking on a role of raising the child.

Parents using a surrogate may have parentage concerns too, but preparing before birth will ease these anxieties. As long as the parents-to-be sign the appropriate surrogate contracts they shall be the lawful parents of the child.

Ultimately, the ruled and laws regarding assisted reproduction and parentage rights are complex. All relationships are unique and some may not fit perfectly within the box of California law. Moreover, the scientific abilities of reproductive assistance are constantly evolving at a rapid rate. Therefore, it is important to talk with a knowledgeable attorney like those at Lonich & Patton to discuss your specific situation.

If you would like more information about assisted reproduction and parental rights, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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What Parents with a Disability Need to be Aware of in a Divorce

Posted June 1, 2017 in Family Law by Michael Lonich.

Parenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.

The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.

If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.

Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.

There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.

If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.

Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.

If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Parenting Plans for School-Aged Children After Divorce

Posted May 24, 2017 in Family Law by Michael Lonich.

Children are undoubtedly important members to a family, but when they are caught in the middle of a divorce short and long-term consequences can occur.

Since school-aged children are more mindful than younger children, they are more likely to be affected by a divorce. Thus, in order to limit the negative effects a divorce will have on your child, an agreed upon parenting plan is key.

Having your child affected by disagreements with your ex should never be a goal. Therefore, it is helpful for both parents to set out ground rules in advance. Make sure you both come to an understanding for acceptable behavior by each around your child.

Life is also uncertain, so in the event of an emergency is it important that the other parent knows of changes to phone numbers, work information, or home addresses as soon as possible. In addition to being notified of important contact information, each parent should have access to your child’s school and medical records and allowed to be contacted by your child’s school.

Keep one another informed about your child’s life and school. Education, sports, music programs, and other events are important to your child during this age. It is important for you and your ex to agree upon specific school or extracurricular events each will attend; either alone or at the same time. Remember being present at your child’s events will give them a sense of support in an otherwise turbulent time.

Additionally, clarity and order in a schedule is going to become the best asset you can provide your child. Figuring out a schedule on how you and your ex will handle exchanges, custody, and visitation should be a high priority on the list of “To Do.” These situations are stressful, but exchanges and transitions between homes can be especially hard for children when not carefully handled. Create a consistent weekly or monthly schedule in advance. This schedule should be clear on when and where your child is staying including where the child will spend summer vacations and holidays. Having a consistent schedule in advance allows your child to acclimate to this new lifestyle and will help other areas in their life to become less disturbed. Yet, some terms of divorce can make this objective difficult or even impossible to obtain without the aid of attorneys.

Above all, your child’s comfort should be a main objective. Make sure each home the child is staying at is equipped with all their necessities. This will help them feel secure, cared for, and comfortable. Some things to always keep stocked are: extra set of clothes; favorite books, toys, or games; and specific childcare supplies or medication.

If you are considering a divorce or legal separation and would like more information about how to create a parenting plan suited to your child’s needs, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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Educational Degrees and Divorce

Posted May 24, 2017 in Family Law by Michael Lonich.

More individuals today have received some sort of professional degree or training than ever before. But with the influx of costs for higher education many married students rely on their spouse for financial support. And upon legal separation or divorce a spouse who supported the other through their education may be entitled to reimbursement for their community fund contributions.

If a spouse chooses to obtain a professional degree or training during their marriage usually two events occur. First, the non-student spouse supports the other financially by paying for the community and educational expenses. Second, after the education is complete, community funds may be used to repay any outstanding loan amount. Upon legal separation or divorce in California these educational loans will be assigned to the spouse who received the education or training and the non-student spouse may have a right to reimbursement for their community contributions. However, California does not recognize an obtained degree or training as community property and therefore its value cannot be divisible upon divorce.

The reimbursement for community fund contributions to a spouse’s education or training is an exclusive remedy governed by Family Code Section 2641. But the spouse seeking reimbursement has a burden to trace the funds to a community property source such as earnings acquired during the marriage. Reimbursement is seen to give a fair “quid pro quo” (this for that) of the community’s investment in the education of a spouse. A supporting spouse may receive reimbursement if the education or training “substantially enhanced” the earning capacity of the spouse or the marriage has ended before the community obtains a benefit from such education. Contributions that may be reimbursed involve payments made with community or quasi-community property to support the student spouse’s education expenditures. These expenses include: tuition, fees, books, supplies, transportation, and directly related educational expenses. However, a spouse will not receive reimbursement for ordinary living expenses since these would have been incurred regardless of a spouse’s educational expedition.

Full reimbursement is not guaranteed though and a court may choose to impose limitations on a spouse’s reimbursement amount if their case’s circumstances warrant such a decision. There are several reasons for a limitation and the ones listed below are by no means exhaustive, but merely illustrative.

A person embarks on an advanced degree or training for a multitude of reasons, one of which may be for better financial standing. Yet, even though there is an expectation that the education will benefit the marital community there is no presumption that the enhancement will be “substantial.” Thus, if a spouse cannot demonstrate the education received in fact substantially enhanced the earning capacity, then reimbursement may be limited.

“Unjust reimbursement” can also limit reimbursement. This occurs when a court determines specific circumstances within a case renders a full reimbursement of the community contributions unfair. For example, if both spouses have obtained a degree or training at the community’s expense a reimbursement to only one would be unjust since both were at one point supported by the other. Unjust reimbursement may also occur when a spouse receives education or training that substantially reduces their need for spousal support. These examples however are merely illustrative and many other circumstances may lead a court to deem full reimbursement to a spouse as unjust.

Finally, a written agreement between the spouses that waives or modifies a reimbursement right may limit a spouse’s amount receivable. Such a waiver or modification must be written expressly; it cannot be agreed upon orally or implied and must be signed by the adverse party.

The achievement of obtaining a degree or training is rewarding for all involved. However, upon legal separation or divorce, rights to reimbursement for community contributions can become complex. If you are considering a divorce or legal separation and would like more information about divorce and educational reimbursement, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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