“You can’t measure time in days the way you can money in dollars because every day is different.”

–Jorge Luis Borges (1899-1986)

I am pleased to announce that a treatise on special needs planning has finally been published. As an author of the treatise, I want to tell you all about it. It has been published in two volumes by the Continuing Education of the Bar, a California educational publisher. The treatise will be available on February 29 and can be pre-ordered at www.ceb.com.

Here is how CEB describes the book:

The definitive book on planning for persons with disabilities: includes practice tips, sample forms for trusts and petitions, a discussion of family law issues, and a summary of public benefit law for persons with disabilities.

HIGHLIGHTS INCLUDE:

• Overview of estate, personal, and financial planning for children with disabilities
• Discussion on planning for an individual with disabilities who receives assets from a litigation recovery or from Comprehensive discussion on how family law issues, ethical issues, and public benefits laws affect planning for persons with disabilities
• Detailed information on special needs trust administration issues such as distributions, taxation, termination, accountings, purchase of home, and hiring of caregivers
• Complete attorney-drafted forms Written by leading special needs practitioners from around the state, this key text is ideal for both beginning and experienced estate planners.

The authorship of the book is shared by some of the most prominent practitioners in California and it is an honor to be listed together with them. For the attorneys and technically inclined clients on this blog, this book will fill a huge hole in your library. This is the first of what I hope will become many editions as the book finds an audience and becomes a magnet for state of the art thinking and writing on special needs trusts.

We all know the importance of annual check-ups. We have our yearly visits to the doctor and dentist, we review our finances at least once a year during tax season, we even take stock of our closets during spring cleaning! To everything there is a season, and your estate plan deserves no less.

Many people are tempted to think of their estate plan as a one-shot deal, but the truth is that your estate plan is an investment and deserves the same annual maintenance and attention as any of your other investments. In fact, your estate plan is more than an investment of money, it’s an investment in your future, and your children’s and grandchildren’s futures as well.

Take the recent example of Anna Nicole Smith and her out of date Will. Smith’s 6 year old Will leaves everything to her deceased son, and nothing to her living baby daughter. To further complicate things, some of the language in the Will seems to exclude Smith’s future spouses and children. Smith’s Will most likely very adequately expressed her desires for the protection and execution of her estate at the time it was written, but even the best attorneys can’t anticipate how a client’s situation and desires will change in future years.

How often you need to review your estate plan will depend a lot on your family’s personal and financial state of affairs, although not entirely. Families and finances ebb and flow, relationships grow or fall by the wayside, and tax laws definitely change, all of which have a bearing on your Trust, Will, Health Care documents, and others. This means that depending on how in flux your personal/financial situation is, you should be reviewing your estate plan every one to five years.

Keep your estate plan as strong and healthy as your body, your teeth, or your stock portfolio. Call your attorney and review your plan regularly!

By guest blogger Jenni Buchanan

Many of my clients have reported new challenges from Regional Center and other service providers. These providers are cutting services to the bone in any way they can. Some Regional Center workers are demanding financial information about the family (which, except the the Family Cost Participation Program, they have no authority to do).

Other organizations, such as the Social Security Administration, are demanding copies of entire Special Needs Trusts, presumably to look for holes they can exploit. (I am happy to share with my clients that the SSA has not found any holes in our trusts.)

School District budgets and services, already tight, are getting tighter.

A Boston Globe article on July 5, 2007 shows that this trend is not limited to California but is nationwide. As agencies face flat funding levels but increased numbers of participants, benefits are squeezed. We can expect this problem to continue and even grow.

Read on for more about the article and some solutions.

Delays in obtaining services are not limited to government programs. Private services, such as schools and developmental pediatricians are also overwhelmed. In Boston, a diagnosis of Autism may be delayed by as much as 9 months, sacrificing much needed early intervention.

“Many people who haven’t had the experience assume the hardest part is hearing your child has autism,” said Ann Guay of Bedford, whose 12-year-old son, Brian, has the disorder. “But I think the greater challenge is trying to obtain the services you know your child desperately needs.” — Boston Globe

As a firm, we have moved to address this problem by assisting clients with advocacy with the appropriate agency. Please call us if you are having a problem getting necessary benefits.

The legislature in Massachusetts is increasing funding. We will be on the lookout for proposed legislation to do the same in California and will let you know how to support that legislation.

Every month, the California Bar publishes a list of lawsuit verdicts across the state. Because many people wonder how catastrophic a judgment against them might be, I’m sharing a few.

Here are the two most striking May, 2007 judgments:

Premises Liability

You can be liable because you own the property.

Judgment: $4,057,354

Vehicle Negligence

Remember that with “joint and several liability” even if you are only 1% at fault you may have to pay 100% of the judgment.

Judgment: $23,295,000

There were other remarkable judgments in January, February, March and April, 2007. There will be more in June, July, August and the months and years ahead.

The California Law Revision Committee has posted a tentative recommendation about no contest clauses. These are the provisions in your estate plan that punish a beneficiary for suing the estate by disinheriting him or her. California has long had a love/hate relationship with no contest clauses. While there are strong reasons to keep people from suing willy nilly when someone dies, the state is also concerned that legitimate issues get aired in court.

California changed its no contest laws just a few years ago, which is why so many of our clients needed to update that provision of their estate plan.

Now the Committee is making a further recommendation. The Committee suggests that no contest clauses should be honored in general. But there should be a big exception to protect against elder abuse, a growing problem.

The Committee proposes that a new law should enable beneficiaries to make contests where there is a significant possibility of elder abuse in a late change of beneficiaries. This new law would protect those beneficiaries from disinheritance.

You can read the Tentative Recommendation at http://www.clrc.ca.gov/pub/Misc-Report/TR-L637.pdf

The proposal is to allow contests “that are brought with probable cause.” As estate planners for our clients, many of whom have strong reasons to create enforceable no contest clauses, we will be watching the case law to determine what rises to the level of “probable cause”.

Planning Tip: A long history of limiting the rights of a particular beneficiary makes enforcement of the no contest clause against that beneficiary much more likely.

The Committee’s Summary follows:

“The Law Revision Commission finds that there are good policy reasons to enforce a no contest clause. However, the existing statute has become overly complex and is contributing to uncertainty as to whether a particular no contest clause would apply to a contemplated action. That uncertainty has led to widespread use of the declaratory relief procedure, adding a new layer of litigation to contest cases. A no contest clause can also operate to deter legitimate inquiry into cases of elder financial abuse and fraud. An abuser may coerce or trick an elderly person into amending an estate plan to include a gift to the abuser, combined with a no contest clause. If the other beneficiaries contest the gift, they risk losing their own bequests. That can insulate fraud from effective judicial review.

After weighing the advantages and disadvantages of the no contest clause, the Commission recommends that enforcement of a no contest clause be preserved, but that the statute be significantly simplified. The existing complex provisions exempting most “indirect contests” from the enforcement of a no contest clause would be replaced with a rule limiting the enforcement of a no contest clause to a specified list of traditional “direct contests.” The declaratory relief provisions could then be deleted as unnecessary. Existing exceptions to enforcement for certain types of contests that are brought with probable cause would be generalized to apply to all direct contests. That would provide a greater opportunity for beneficiaries to bring a direct contest based on suspected elder abuse.”

Coming just days after a major study on Autism was released by the CDC (see previous blog post), the results of another autism study were announced today.

Read about the study here. The study found a link between Austim and a specific gene: neurexin 1. “A previously unidentified area of chromosome 11″ was also implicated. Neurexin 1 is involved with glutamate. I did a very basic search on google “neurexin 1 gluten” to see if this gene could be linked to the success some people with autism have had on gluten-free diets. I invite comments from readers who did better in High School Chemistry than me. Please decipher the google results. Until then I am encouraged by the number of links, suggesting there is some connection.

The research was funded by the National Institutes of Health and the non-profit, Autism Speaks.

Autism Speaks is also behind the arresting ad you may have seen recently:

I am thrilled by the dramatic potential to use these results in therapies someday. I am warmed by the devotion shown by the 120 scientists in Europe and America who collaborated to complete the five-year study that included more than 1,000 families.

Kudos to everyone involved. Bravo!

Today’s USA Today released the initial results of the largest study of autism to date. The study was also discussed in the Los Angeles Times and other major newspapers. It was funded and conducted by the US Centers for Disease Control, a controversial player in the debates over autism and vaccines.

The key points:

* The study has found that autism spectrum disorders (defined in the study as including PDD-NOS – pervasive developmental disorder – not otherwise specified) are being diagnosed at the astonishing rate of 1 in 150 children. (The L.A. Times notes that since the study parameters were different from previous studies it is possible that this does not indicate an increase in autism.) It is, however, the largest and perhaps most persuasive study conducted to date on the prevalence of autism.

* The study continues to take the CDC’s long-held position that there is no relationship between autism and childhood vaccinations.

* Prevalence of autism diagnosis rates varied greatly among states included in the study from a low of 3.3 per 1,000 children in Alabama to a high of 10.6 per 1,000 children in New Jersey. I hope the CDC will investigate whether these wide disparities are due to vaccination rates, diagnosis abilities within the state, environmental factors, or genetic factors, among other potential contributing factors.

* Cure Autism Now and the Autism Society of America have both commented, demanding greater attention to the disorders and increased funding for research and treatment.

* The study looked at 8-year olds in 2000 and 2002.

You can access, download and read the full published results in a pdf on the CDC’s website.

I invite your comments on this study to the blog. I know that my clients and readers — those parents and professionals dedicated to helping people with autism — are avid students. I know those of you who read the full study will find things that other blog readers would like to hear. Please share.

And please check back for comments here as we do not email comments to blog replies to you.

On October 21, 2006, Kelly Greene answered a question in the Wall Street Journal’s Encore Personal Finance section on how to name a minor child as a beneficiary of your retirement plan. I was delighted to be able to contribute to the answer.

You can see the article, How to Name a Minor as your IRA Beneficiary, here. (Subscription to www.wsj.com may be required.) If not, email me and I’ll send you a reprint!

Each year, MetLife surveys the cost of assisted living facilities in all 50 states. While the survey is performed by Met’s elder services group, The MetLife Mature Market Institute, the numbers can be helpful for families planning to provide for a person with developmental disabilities who may not be able to live without 24 hour care.

This year, MetLife surveyed three California cities and found a range of $1,300 at the lowest end to $5,500 at the highest end. In Los Angeles, the average base rate was $2,426. Base rates typically include two or three meals per day, assistance with “activities of daily living,” medication management, laundry and housekeeping.

While assisted living costs are up 17% since 2004, this year’s increase was a modest 2.2%.

For families with kids who may not require skilled nursing care but who also may not be able to live at home, these numbers are a good basis for projecting the cost of lifetime care for their child.

To ensure that children receive the maximum government benefits they are entitled to, a special needs trust should be established to provide the child with important quality-of-life goods and services like dental care. The Special Needs Trust is the gold standard in protecting the child’s inheritance when the parents are no longer there to help.