Planning for Life

Organ Donation Saves Lives - Massachusetts

Posted by Harry S. Margolis on October 20, 2015

By Harry S. Margolis

Ill patients die every day waiting for an organ transplant. Even more continue to live curtailed lives. According to the New England Organ Bank, there are 120,000 Americans are waiting for organs right now. More than 6,000 die each year waiting for a transplant. The death of one person who has signed up as an organ donor can save seven lives through donated organs and many more through donated tissue.

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Topics: special needs planning, Estate Planning, anatomical gift

Section 8 and Special Needs Trusts: Confusing Massachusetts Federal Case Could Cause Problems

Posted by Karen Mariscal on May 20, 2015

By Karen B. Mariscal

Special Needs Trusts are designed to allow disabled beneficiaries to supplement their income without causing them to be financially ineligible for certain government programs.  Unfortunately each program is different, and HUD’s Section 8 housing assistance program does not expressly recognize or protect Special Needs Trusts.  A federal district court has recently ruled that the Brookline  local housing authority properly counted payments from a special needs trust as income when it determined that a Section 8 beneficiary was no longer eligible for a housing voucher.  DeCambre v. Brookline Housing Authority (D.Mass., No. 14-13425-WGY, March 25, 2015).

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Topics: special needs planning

Not Even Close: Raising a Child with Autisim

Posted by Karen Mariscal on April 29, 2015

By Karen B. Mariscal

I came by my work as a special needs lawyer naturally, in that my husband and I have a severely autistic son, our first child, who is now a young adult.  We have navigated the educational system and the transition years, and Billy is now attending a community day program at the Charles River Center in Needham.  At this point he still lives at home, although we are working on creating a group home for him in Framingham.  Here is my story.

“Not even close.”

This is what I said to my pediatrician when she asked me the very simple yet profound question “What does he do when you ask him to go get his shoes?”

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Topics: special needs planning, autism

ABLE Accounts: A Little Deflating

Posted by Karen Mariscal on February 9, 2015

By Karen B. Mariscal

It’s as if the ball was stolen out of our hands at the 1 yard line. (Remember how the Patriots won the Superbowl in 2015?)

On December 19, 2014, President Obama signed into law the Achieving a Better Life Experience (ABLE) Act, enabling parents of children with significant disabilities to set aside funds to help pay their children’s expenses, tax-free, and without affecting their eligibility for public benefits. It is set up like a 529 account for the costs of education. The special needs community has been advocating for this for years, and it certainly sounds like a victory. But reading the fine print, it is not clear that these accounts will be of much help to parents or their children with disabilities.

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Topics: special needs planning

5 Reasons Why Disinheritance is Not a Viable Option for Special Needs Planning

Posted by Harry S. Margolis on February 2, 2015

By Harry S. Margolis

Some parents of children with special needs choose to disinherit such children for a number of reasons. They recognize that leaving funds directly to such children (who very well may be adults now) could cause a number difficulties. Their children may lose eligibility for important public benefits, such as Supplemental Security Income, MassHealth or subsidized housing. In many instances, their children would not be able to manage the funds and would be susceptible to losing the funds to financial predators or simply bad decisionmaking. Other parents reason that their other children will take care of the child with special needs or that the child has no need of funds since public programs are providing for her adequately.

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Topics: special needs planning

Lessons from Henry's Boys: The Rights of the Intellectually Disabled in the Workplace

Posted by Karen B. Mariscal on January 20, 2015

By Karen B. Mariscal
"Love and work...work and love, that's all there is." --Sigmund Freud

Work gives life meaning. We all want to contribute - it is part of being human. My 90-year-old grandmother scolds me to get out of the way so that she can do the dishes. My severely autistic son insists on emptying the dishwasher. But in this Internet age of technology, in which it seems that just about everything requires a college degree, finding jobs for the intellectually disabled is getting more and more difficult.

We as a society need to think a lot harder about how we can employ the thousands of intellectually handicapped adults who come of age every year. They need to work. Unfortunately the work they are going to find is probably not the kind of work the rest of us will want to do, and we need to find the right balance.

The New York Times recently published another piece on the so-called “Henry’s Boys” – men recruited from Texas institutions decades ago to eviscerate turkeys, only to wind up living in virtual servitude, without many basic rights. The Times located Leon Jones in South Carolina, who may be the last working member of Henry’s Boys. The article is heart-breaking, and shows what can happen to handicapped people who do not have anyone looking out for them. (Read: Guardianship and Special Needs Trusts are important!)

In its excellent expose that it published in March 2014 the Times goes to great lengths to describe the truly disgusting work that Henry’s Boys did to slaughter and butcher the turkeys, which is one of most compelling manifestos against factory farming that I have ever read. But the point is that no one should be forced to do that kind of work, and certainly not for the kind of pay the men were receiving.

The employers of Henry’s Boys may have thought that they were doing the men a favor by taking them out of institutions and giving them work. In a world where the men had no other options, they might be right. Turkey slaughtering aside, sometimes we need to remind ourselves that what seems like terrible work for you may not be terrible for them. Just because I don’t want to do a certain job all day does not mean it wouldn’t be great for my disabled son. But he needs to be compensated appropriately, especially if he is doing a job that others do not want to do.

In my son’s case, given his disabilities, being compensated appropriately means he makes less than minimum wage. Federal law allows this: An exemption to the U.S. Fair Labor Standards Act in 1938 allows businesses to obtain a special wage certificate, called Section 14 (c), to pay workers with disabilities less than the minimum wage, under the theory that such workers will produce less than workers who are not disabled. Although disability law advocates want this law repealed, the fact is it has allowed thousands of people to work and get paid, where they otherwise might have been considered unemployable.

Massachusetts is working to close all sheltered workshops in the next decade or so. This is an admirable goal, and one we support, because we believe it is in everyone’s interests to stop isolating intellectually handicapped people and get them out into the community. But it assumes that alternate forms of work can be provided. The policy would be disastrous to anyone who was happily employed at a workshop and is left sitting around with nothing to do.

Last summer, President Obama signed the Workforce Innovation and Opportunity Act into law, which prohibits individuals with disabilities who are 24 or younger from working for below the minimum wage unless they try a competitive job first. This is a good step, although in my view it is unlikely to affect many people. Each of us needs to keep thinking about opportunities for the disabled to work and be productive, in whatever capacity they are capable.
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Topics: special needs planning

Attending The Lion King with my Autistic Son

Posted by Karen B. Mariscal on October 29, 2014

Something incredible happened on Saturday.  Billy and I were ableson,dad,mom to attend one of the best shows ever produced, without any worry that his rocking or singing would disturb anyone.  In fact every other person in the audience seemed to be rocking or talking or singing or clapping or standing up at inopportune times – Autism Speaks sponsored a show just for people on the autism spectrum.  And what a show it was.  I cried at the opening Circle of Life, which is so overwhelming anyway with elephants and zebras coming down the aisles. I looked at the mom next to me, who also had a young adult son with her, and she was crying too.  To think that we could have our 20-something sons finally attend a Broadway show was just too much.

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Topics: special needs planning

Learning from Adults with Special Needs at Specialized Housing

Posted by Harry S. Margolis on September 2, 2014

For more than 30 years, David Wizansky, with his wife, Margot, has developed and operated group homes in the Boston area for adults with developmental disabilities through their 4ae71a80a8639f4fb34e018a97d719a3company, Specialized Housing. Now he has written a book, Identity, Self, and the World: Learning from Adults with Developmental Disabilities, that distills what he has learned from working with this population.

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Topics: special needs planning

Will MassHealth Take My House?

Posted by Harry S. Margolis on June 24, 2014

By Harry S. Margolis

I'm often asked whether MassHealth "will take my house" or other assets. A recent posting on ElderLawAnswers.com, where I answers questions from consumers, reads in part:

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Topics: special needs planning, MassHealth, asset protection

A Short Introduction to Special Needs Planning

Posted by Harry S. Margolis on April 29, 2014

 
Estate planning by parents who have children with disabilities involves many challenges, including the following:special needs trust planning legal guide
  •  How do you leave funds for the benefit of the child without causing the child to lose important public benefits?
  • How do you make sure that the funds are well managed?
  • How do you make sure that your other children are not over-burdened with caring for the disabled
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Topics: special needs planning, MassHealth

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