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Guardianship: Is It The Right Choice When Your Special Needs Child Turns 18?

Guardianship Special Needs

In most states, a parent is deemed to be the legal guardian of his or her child until their child turns 18. Up until that point, parents make all the medical, financial, educational and day-to-day decisions for their children.

However, once your child turns 18, he or she is legally considered an adult and your authority to make decisions on your child’s behalf stops. This usually isn’t an issue, unless you have a special needs child that may not be ready or able to make good decisions about their care.

Following is a discussion of some options of what you can do when your special needs child turns 18.

Guardianship

With guardianship of your child, you have the legal authority to make decisions about your child’s healthcare, housing, food, clothing, and other subjects that affect your child such as decisions about a their income, property, public benefits and other financial matters.

Guardianship is not automatic. And when your child turns 18, parents (or an adult willing to oversee your child’s care) must petition the court for guardianship.

However, not every child who has disabilities needs to have a guardian. With appointed guardians, your child loses a great deal of independence. Your child will no longer be able to make decisions about their personal life, health care, financial or legal matters.

Alternatives To Guardianship

Most state laws require that guardianship only be imposed only when less restrictive alternatives would not best benefit and protect the child.

Following are a few examples of less restrictive alternatives to guardianship.

Conservatorship

If your child has the capacity to make some decisions, an option to consider is Conservatorship. The individual appointed to serve as Conservator manages your child’s property and financial affairs. Most other decisions are left up to the child.

Power of Attorney

Power of attorney is given to a responsible adult (ex. a parent) that acts on your child’s behalf on financial, legal or business matters but the child still retains the right to act on his or her own behalf.

Representative or Protective Payee

If your child receives Social Security, benefits from the Veteran’s Administration, Railroad Retirement, welfare or other state or federal benefits, the Court can appoint someone to help manage their payments from these entities. All other decisions are left up to your child.

Factors To Consider When Making This Decision

It’s important to take into consideration several factors when deciding whether your child needs a guardian or some other form of support.

  • Your child’s ability to make sound decisions, including understanding the effect and consequences of his her decisions and actions
  • Your ongoing need to be involved in your child’s medical care
  • Your need for continued oversight over your child’s financial affairs
  • Your child’s needs and wants
  • Your child’s ability to communicate his or her needs
  • Your child’s level of independence with respect to self-care (ex. feeding, dressing, bathing, etc.)
  • Whether your child will require outside support such as assisted living or a home health assistant

When To Make A Decision

The conversations and decisions about how your 18-year-old child should be cared for need to happen BEFORE he/she turns 18. These conversations are not easy. In fact, they’re very difficult and there are many variables to consider. As a result, it’s important to start thinking about your child, his or her needs and long-term well-being now.

We Can Help

Although we cannot make the decision for you about what’s the right answer for you and your family, we can guide you through the decision-making process and help you with the legal aspects. I can be reached at DJ@JeyLaw.com or 678.325.3872 for a free initial consultation.

If Your Child Has Autism, Make Sure These 4 Things Are In Your Will

Autsim Will & Special Needs Trust

Although everyone should have a will, as parents of special needs children, we need wills to ensure that our kids are well cared for and have a good quality of life after we pass.

My son has a dual diagnosis of Autism and Williams Syndrome. Here are four things I recommend all parents of children with Autism – or any special needs – include in their wills or estate plans.

1) A Special Needs Trust – A will is a basic legal document that details your last wishes and is often used to distribute your property or assets.

However, a basic will does not include provisions that are needed to protect and provide for your special needs child. This is where a Special Needs Trust comes into play. A Special Needs Trust can be a part of your will or it can be a stand-alone document. It allows you to designate and qualify your assets in a way that doesn’t penalize your child when it comes to his or her public benefits.

Eligibility for many government benefits is determined based on the resources your child or adult ward holds in his or her name. If your special needs child has too many resources, even by just one dollar, he or she may not qualify for, or may even lose, benefits such as Supplemental Security Income (SSI) and Medicaid. Even if your child does not currently receive government assistance, he or she may need it in the future.

A special needs trust is a way to protect your loved one’s current resources and future benefits. Through a special needs trust you can leave assets to your child or ward without negatively impacting his or her government benefits.

2) Designated Guardian – We often assume that a member of our family – maybe a sister or our own mother – will automatically be given custody of our children if something happens to us. However, this is not true unless you have a will, trust or estate plan in place that specifically names them as guardians.

Without a legal plan in place, anyone can request custody and a judge will decide with whom your child/children will live with. Choosing a guardian is perhaps one of the most difficult decisions to make. It’s important to choose someone you trust and who will respect your wishes for your child(ren).

Things to consider when selecting any child’s guardian are the guardian’s age, his or her family values, parenting style, character, willingness to serve as guardian and whether he or she already has an established relationship with your child.

With a special needs child there are even more considerations. Think about the traits that you, as a special needs parent, need to raise your child and does the guardian have these traits?  My top three traits for special needs guardians are 1) Energy; 2) Patience; and 3) The ability to advocate for my child. (See Related Post: 10 Tips On Choosing The Right Guardian)

3) Guardianship Letter & Instructions –  Once you’ve selected a guardian, you need to put them in a position to succeed if they are forced to step into your shoes. You should write instructions to the guardian about things they will need to know on how to parent your child.

Include things like your child’s routines, medicines, information about his or her medical providers, how to deal with sensory meltdowns, what is the best way to get them to eat or sleep. Simple things like their favorite stuffed animal that they need to go to sleep with at night or where they like to hide their favorite sippy cup or the name of their favorite YouTube videos are small details – but they are of big importance to our children.

We’ve had years to learn these things about our kids. Help your child’s guardian avoid having to learn from experience by documenting what you already know!  (See Related Post: How To Create A Successful Care Plan For Your Child’s Guardians)

By painstakingly detailing your routines and including details about what makes your child comfortable or happy in your care plan, you are setting your guardians up for success and for a smooth transition in case something were to suddenly happen to you and your spouse.

4) Conservator or Trustee – A conservator or trustee is someone to handle all financial decisions related to your child. A conservator helps ensure that money left to your special needs child is used for your child in ways that best benefit  your child.

Often times families ask me if their child’s designated guardian should also be the conservator or trustee. It depends. Your guardian can serve as both, but sometimes families prefer set up some up checks and balances by selecting different guardians and conservators. It’s important to select someone you trust and who will make smart financial decisions on your child’s behalf.  The guardian and the conservator work together in the best interest of your child.

Getting Started

As a parent of a special needs child and an estate planning attorney, I understand the challenges of adding one more thing to your plate. However, putting into place a will to protect your child with special needs is something we all need to do sooner rather than later – just in case.

We’ll walk you through the will planning process step-by-step. Initial consults are free.  We want to help you create a legal plan that best protects your child with special needs as well as your final wishes for your entire family. I can be reached at DJ@JeyLaw.com or 678.325.3872.

 

DOJ Intends to Increase Healthcare Fraud Penalties By Almost 100%

healthcare fraudThe Department of Justice (“DOJ”) recently announced that it intends to increase healthcare fraud penalties under the False Claims Act (“FCA”) on claims assessed after August 1, 2016.

DOJ’s Justification For The Increase

FCA penalties can already be high since penalties are assessed per-claim. Each false claim presented to the government can be a separate violation. The DOJ’s Interim Final Rule would increase the minimum per-claim penalty from $5,500 to $10,781 and maximum per-claim penalty from $11,000 to $21,563.

This is a steep increase over 96%. While there was a 10% cap on the amount the penalties could increase, that law was amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (“2015 Act”). The 2015 Act also included a one-time “catch up provision” requiring the first increase be based changes in the consumer price index since the year the penalties were established.

What The Increase Means To Healthcare Providers

This increase could incentivize whistle-blowers to identify false claims because the whistle-blower may be able to keep a percentage of the money recovered. Healthcare providers billing the government need to ensure that all their practice’s policies and procedures adhere with federal and state regulations. Proactive and preventive measures are the best way to stay out of the government’s cross hairs for fraud.

How To Ensure Federal and State Compliance

We can help. Our attorneys have extensive experience in analyzing and bringing into compliance healthcare providers’ policies and procedures. We’ve helped hundred of providers – from small, independent providers to large national corporations ensure compliance with regulations such as the Anti-Kickback Statute and Stark. Contact DJ Jeyaram at DJ@JeyLaw.com or 678.325.3872 or Jonathan Anderson at Janderson@JeyLaw.com.

Sending One More Message To Loved Ones After You Pass | How To Create A Legacy Statement

Legacy StatementsMy wife would give anything to hear her mom’s voice, to see her smile or read a letter from her one more time.

Sadly, my wife’s mom suddenly passed away more than 20 years ago at the age of 43. The most cherished memories my wife has of her mom are the stories her mom would tell my wife about her own childhood.

As with all things, those memories fade over time and when the teller of the tale has passed, details are sometimes lost forever. As a result, my wife and I have included Legacy Statements as part of our wills.

Heartfelt Messages For Loved Ones 

Legacy Statements can be a part of your estate plan and are an opportunity to tell loved ones stories or messages that you do not want lost when you pass. Things like your favorite memories, what you had hoped to accomplish in this life, as well as your hopes and dreams for your children. Your Legacy Statement can also explain why you made certain choices or it can simply be a heartfelt message for loved ones to cherish.

You can video tape, tape record or write your messages. I’ve also had some clients include favorite photos of their loved ones with a special note on the back of the photos. Legacy Statements are such a meaningful way to preserve your legacy, and that of your family, after you pass. It’s also a way to pass on family traditions and history.

Creating Your Legacy Statement Is Not A Sad Process 

The process of creating a Legacy Statement does not have to be a sad affair. In fact, many of the stories I see preserved are memories of a happy childhood, a secret recipe finally revealed or, in one funny instance, the differing views of the parents’ first date together!

As a first generation American, my personal statement is the story my father told me about his flight abroad and his first day in America. He left everything he knew and loved to chase the American dream. He arrived in New York with no money and only one suitcase – but a heart full of hope and determination. I want my children and their future children to understand where they came from and why they are here. That is the importance of legacy.

Legacy Statements Give Comfort To Your Family

So while we do not have any control over when we pass, we can leave a positive and meaningful impression on future generations. Legacy Statements allow those grieving a respite from the pain and sorrow and give them something positive to hold on to. It gives them a sense of peace and comfort.

As a wills, trusts an estate lawyer, I love nothing more than seeing the comfort Legacy Statements bring to family and friends. It gives them a chance to hear from you – one more time.

We Can Help You

Our attorneys have extensive experience in creating wills and legacy statements and will help you through the process step-by-step. Please contact to DJ@JeyLaw.com or 678.325.3872.

Happy Fourth of July!

Special Needs Trusts : Jeyaram & Associates

Charlotte’s taking a nap so she won’t miss the fireworks!

Everyone at Jeyaram & Associates – including DJ’s son’s service dog and our firm mascot Charlotte – wishes you and your family a safe and Happy Fourth of July!

Another Katie Beckett Denial Overturned!!!

Katie Beckett Denial OverturnedWe’re so excited!!!

We’ve helped another family overturn a Katie Beckett denial!

Katie Beckett Legal Help Testimonial 

Here’s the review R. Carrington posted on our site:

“When our son’s Katie Beckett was denied after 9 years of approval, we were lost. Mr. Jeyaram walked us through the appeal process, met with us and helped us write a strong letter for review and followed up with us to make sure our appeal was a success.”

“What could have been devastating for our family, was a small bump in the road, easily handled. Mr. Jeyaram’s is a special needs’ family most needed contact. Thank you Jeyaram & Associates! You really saved the day!”

Thank you R. Carrington for the kind words! We love nothing more than seeing our kids get the benefits they deserve!

Our Attorneys Have Extensive Experience With Katie Beckett

Receive notice that your child’s Katie Beckett has been denied? We can help! Our attorneys have an intimate understanding of how the Katie Beckett and NOW/COMP approval process operates through the Department of Community Health (DCH), as well as the Office of State Administrative Hearings (OSAH), the entity that presides over the Katie Beckett and NOW/COMP appeals.

Before joining Jeyaram & Associates, our attorneys worked as DCH Medicaid attorneys and OSAH judge. They have experience with and insight into the Katie Beckett and NOW/COMP Waiver process at DCH and OSAH that other lawyers cannot offer.

We’ve Been Through The Process

Our attorneys have personal experience applying for, initially being denied and then finally approved Waiver services. We’ve been there, and we want to help other parents whose children would also benefit from these programs. We know the application process is frustrating and confusing. Don’t give up. We’re here to help! We’ve also successfully helped dozens of families appeal Katie Beckett and NOW/COMP denials.

Need Help?

Attorney and special needs dad DJ Jeyaram can help. Contact DJ at DJ@JeyLaw.com or 678.325.3872.

Healthcare Providers Need To Ensure Compliance Under Expansion of False Claims Act

False Claims Act Attorney The U.S. Supreme Court voted unanimously to allow False Claims Act (FCA) liability under the “implied certification theory.”

The implied certification theory means that submitting a claim to the government implies that the entity has complied with all contractual and regulatory requirements.

What The Supreme Court Ruling Means To Healthcare Providers

This decision could have profound repercussions for healthcare providers who bill federal healthcare programs. Healthcare providers must contend with the Stark Law and Anti-Kickback Statute (“AKS”). Violations of either the Stark law or AKS give rise to FCA liability. Healthcare cases make up approximately two-thirds of federal whistle-blower cases, which are enforced using the FCA.

The Supreme Court did not limit liability under the implied certification theory to conditions of payment. This ruling can potentially mean that a facially valid invoice can violate the false claims act case because of requirements that are not explicitly requirements for payment. If a regulation is a condition of participation but not a condition of payment, a violation can still give rise to FCA liability.

The Supreme Court did rule that liability is limited to “material” violations. Materiality may be shown if it is a provision for which the government routinely denies payment. The Court emphasized that the materiality test is “rigorous” and demanding….”

Healthcare Providers Need To Ensure Compliance 

Healthcare providers, and all contractors billing the government, should ensure they are compliant with all statutory, regulatory and contractual requirements.

Jeyaram & Associates’ attorneys have extensive experience in helping healthcare providers remain compliant with all state and federal regulations. Contact DJ Jeyaram at DJ@JeyLaw.com or Jonathan Anderson at Janderson@JeyLaw.com.

Did You Know?

Katie Beckett Attorney GeorgiaDid you know DJ Jeyaram is Georgia’s leading attorney on Katie Beckett?

He has successfully helped more than 100 families obtain Katie Beckett approvals on appeal!!!

For help with Katie Beckett denials, please contact DJ at DJ@JeyLaw.com or 678.325.3872. You can also learn more on our site by clicking here.

DJ Jeyaram Joins Frazer Center Board of Directors

DJ JeyaramCongratulations DJ Jeyaram for being selected to serve on the Frazer Center Board of Directors.

Mr. Jeyaram joins an esteemed group of community members who are committed to the inclusion of individuals with disabilities. The Frazer Center provides services for children and adults with disabilities.

Honor To Serve

“It’s an honor to serve along with so many esteemed individuals who have committed their lives to helping individuals of all levels of abilities and disabilities,” Mr. Jeyaram said. “The Frazer Center understands and appreciates the value of all individuals and that there is tremendous community benefit and value in diversity.”

The Frazer’s Center Guiding Principles 

  • We value every individual as a member of the community.
  • We strive for excellence in every aspect of our work.
  • We are committed to advocacy and research on behalf of the community we serve.
  • We are faithful stewards of all the resources entrusted to our care: human, natural, and economic.
  • We are committed to building and deepening partnerships knowing we cannot do this alone.

Local and Global Community Inclusion 

The Frazer Center is a long standing advocate and resource for helping with the inclusion of individuals of all abilities into the community. According to an annual report by the Frazer Center, “We are vision builders with a passion for the world that we hope for—one in which each person has the chance to be acknowledged for their gifts, to be valued and included despite any difference in ability, and to be productive members of society.”

Learn More

To learn more about the Frazer Center and the programs it offers for adults and children with disabilities, visit http://www.frazercenter.org/

Healthcare Providers: Are You Compliant With The New Overtime Rule?

Over time healthcare providerThe U.S. Department of Labor recently announced a Final Rule that substantially increases the number of salaried workers who will receive overtime.

The new rule, which goes into effect on December 1, 2016, is expected to affect 4.2 million workers – including healthcare employees.

Currently, employers did not have to pay overtime to salaried workers earning more than $23,600. The new Final Rule increases that threshold to $47,476 with automatic future increases.

The Final Rule will particularly affect healthcare businesses and professionals. The average salaries for nurses, medical and physical therapists, medical and pharmacy technicians, and paramedics is between $25,710 and $47,010. [1]

However, there is some exceptions for certain Medicaid providers. Providers that serve individuals with intellectual and developmental disabilities do not have to increase salaries until March 17, 2019. The delay is for providers of Medicaid-funded services “for individuals with intellectual or developmental disabilities in residential homes and facilities with 15 or fewer beds.”[2]

The delay addresses concerns that the change would increase the cost of paying workers, without the ability to increase the revenue from Medicaid payments.

While the non-enforcement policy is a boon to home and community based providers, it will not affect private pay ID/DD providers. The Administration’s Final Rule is likely to raise costs for those private pay providers because the cost of labor will increase as many more salaried workers are entitled to overtime pay.

Healthcare providers should review their compensation structures to ensure they comply with the new overtime rules. Providers who believe they meet the exception for Medicaid funded ID/DD services should ensure they meet the exception.

Jeyaram & Associates is a full service healthcare law firm and can review employers’ salary structures to ensure compliance with the new law. For assistance, contact DJ at DJ@JeyLaw.com or 678.325.3872.