In deciding Endrew F. V. Douglas County School District (U.S., No. 15-827, March 22, 2017), the U.S. Supreme Court partially filled a 35-year void  it created in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176,in 1982 and aimed to resolve the divide between the circuit courts on the matter in ruling that the Individuals with Disabilities Act (IDEA) requires school districts to provide students with disabilities an Individualized Education Plan (IEP) that enables them to make more than minimal progress.

At issue was the standard that public schools must meet to provide a “free appropriate public education,” or FAPE, to children with disabilities.  Must there be a “just-above-trivial,” a “meaningful,” or some other measurable educational benefit?  Different standards have been applied in different jurisdictions, creating vastly different educational experiences for students covered by IDEA.

In Endrew, the U.S. Court of Appeals for the Tenth Circuit held that a more than de minimis, or just-above-trivial, educational benefit was all a school district need provide, denying Endrew’s parents’ claim for reimbursement of tuition costs they incurred when they sent him to a private school that specialized in educating children with autism. (Click here and here for our prior coverage of this case.)

The U.S. Supreme Court vacated the Tenth Circuit’s judgment. Writing for the unanimous Court, Chief Justice Roberts emphasized that states participating in IDEA must educate a wide spectrum of students with disabilities.  The justices rejected a merely more than de minimis standard as not offering any education at all for students who cannot be educated in the regular classroom.  But they also rejected as unworkable the notion that states provide equal educational opportunity for all students.

In finding a middle ground, the Court zeroed in on the language and intent of the Act and its focus on each particular child. Under the Court’s analysis, the key requirements to a FAPE are found in IDEA’s IEP provisions.  There, a child’s present level of achievement is first identified, then according to the regulations there must be “a statement of measurable annual goals . . . designed to . . . enable the child to be involved in and make progress in the general education curriculum.”

“[E]very child should have the chance to meet challenging objectives,” Roberts wrote, adding that “this standard is markedly more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.”  However, the Court declined to further elaborate on what is appropriate progress from case to case, leaving that to the circumstances of the child and the expertise and judgment of school officials and parents.  The Court simply said that “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”   The case was remanded for further proceedings consistent with the Court’s opinion.

For the full text of the Court’s opinion, click here.

For more on the Court’s opinion, click here and here.

Finding no clear and convincing evidence that the deceased beneficiary of a pooled special needs trust intended funds remaining in her account to go to her children, and that the doctrine of laches also applies, a U.S. district court denies a claim to reform the trust.  National Foundation for Special Needs Integrity, Inc. v. Reese (S.D. Ind., No. 1:15-cv-00545-TWP-DKL, March 21, 2017).

Theresa Givens established a pooled SNT with settlement proceeds she received for injuries from a medical procedure.  Upon her death, her adult children sought the funds left in her account for themselves.  National Foundation, trustee of the pooled special needs trusts, refused their requests and retained the funds in the pooled trust’s remainder share account.  Ms. Givens had named only herself as contingent beneficiary in the Joinder Agreement she signed when she set up the trust.

More than three years after his mother’s death, Ms. Givens’ son Devon Reese pursued legal action to recover the money for her children.  Mr. Reese claimed that their mother intended them to receive the funds and had mistakenly named herself as beneficiary.   When National Foundation sought a declaration from the court that it had properly transferred the funds into its remainder share account, Mr. Reese counterclaimed seeking reformation of the trust agreement to reflect what he contended were his mother’s wishes.

The court previously held on summary judgment that National Foundation had properly retained the funds in accordance with the unambiguous terms of the trust agreement. (For earlier coverage of the case, click here and here.) Before the court were the remaining questions of Ms. Givens’ intent at the time of signing the Joinder Agreement and National Foundation’s affirmative defense of laches.

“The U.S. District Court for the Southern District of Indiana denies Mr. Reese’s claim for reformation and grants National Foundation’s affirmative defense of laches.  The court finds that a few statements Ms. Givens made about wanting to help her children before and after executing the Joinder Agreement were contradicted by other statements she had made to counsel and by the language of the trust documents.  Therefore, the court concludes there is no clear and convincing evidence that she intended to transfer the remainder funds to her children when she executed the agreement.  The court further finds that Mr. Reese’s delay in asserting the reformation claim was inexcusable because he knew for years about National Foundation’s intent to retain the funds and failed to act.  Reformation of the Joinder Agreement now is time barred because it would prejudice National Foundation and its current pooled trust members, the court concludes.”

For a full text of this decision, click here.

Reprinted from the Academy of Special Needs Planners: https://attorney.elderlawanswers.com/court-denies-claim-to-reform-pooled-snt-agreement-in-favor-of-deceased-beneficiarys-children-16020?utm_source=ASNP%2BMonthly%2BApril%2B2017&utm_medium=email&utm_campaign=Article%2B2

Sometimes after the selection, when a couple is passed over by a birth mother, couples ask me if there is anything they can do differently.  They have been waiting so long…. Is their profile not complete enough?  Do they not have enough pictures?  Do they not say enough about themselves?

What I say to them, and to you, if you have been waiting, longing for a child, and feel as though you are never going to see that dream happen, is the following.

Your profile is GREAT.  Your pictures are wonderful. Your narrative makes every person who reads it want to be part of your family.  So stop worrying about that part of the selection process. A birth mom may say that she is looking for a particular situation – no children, more than one child, biracial, Caucasian only, outside your state, inside your state – whatever those criteria may be, she can articulate them.  There are other qualities she may not even be able to identify in her own mind that that make up the selection process as well.  You never know what part of your story is going to resonate with a birth mom.  It may be that you live in the mountains, or the types of pets you have (or don’t), it may be something you say about how you grew up.  The possibilities are endless, and unascertainable.  So stop worrying, and PRAY.  Pray for the women who are in crisis pregnancies.  Pray for the women who are scared and broke and cannot feed another mouth.  Pray for the women who have been dumped by yet another guy who said he loved her and wanted to marry her, only to leave her when she told him she was pregnant.  Pray for the women bound by addiction and   Trust God, that He will bring you the child you were meant to have.  And He will.

Here is a wonderful post addressing the possibilities and mindset you can have with the woman who gave birth to the child that you are raising, that you call son or daughter.  She is not a threat!  And there can never be too many people loving a child.

http://ariannamadelyn.blogspot.mx/2012/06/things-i-wish-all-adoptive-parents-knew.html

The end of the year will be here before we know it. But there is still time to get some major estate planning goals accomplished. Here are ten things to do before the end of 2012.

1. Have your estate planning done. Set the end of the year as your deadline to finally get this completed. Figure out why you have been procrastinating and conquer your fears. If it’s because you don’t have an attorney, ask friends and acquaintances for referrals. If it’s because you aren’t sure who you want to be the guardian for your minor children or who you want to be your executor or trustee or how to divide your estate, your attorney can help you decide. (You can always change your mind later; don’t let these decisions keep you from putting a plan in place now.) If money is an issue, start with what you can afford (a will, power of attorney, health care documents) and upgrade later when you can. Your attorney may also be willing to accept payments.

2. Review and update your existing estate plan. Personal and financial circumstances will change throughout your lifetime, and your plan needs to change with them. Revisions should be made any time there are changes in your family (birth, death, marriage, divorce, remarriage), your finances, tax laws, or if a trustee or executor can no longer serve. Now is a perfect time to do this; if there are changes you want to share with family members, you can do that when they are home for the holidays. (See #9 below.)

3. Use your $5.12 million exemption. For the rest of this year, every American can transfer up to $5.12 million free of federal gift, estate and generation-skipping transfer tax. (A married couple can transfer up to $10.24 million.) If Congress does not change the current law, the federal estate tax exemption in 2013 will be just $1 million. You do not have to die in 2012 to use this exemption; you can use it to make gifts now, while you are living. You do not have to completely give away your assets; you can make the transfers in ways that will let you keep control and even keep the income your assets are generating. And you do not have to use the full $5.12 million exemption to benefit; even those with less than $1 million should consider some planning to prevent future tax liability.

4. Make tax-free gifts. Under current federal law, you can give up to $13,000 to as many people as you wish each year. This is a great way to reduce the size of your estate (and potentially save estate taxes) over time. For example, if you give $13,000 per year to your two children and three grandchildren, you would remove $65,000 from your estate in just one year and $325,000 in five years. (You can double these amounts if you are married.) Charitable gifts are unlimited. So are gifts for tuition and medical expenses, if you give directly to the institution.

5. Secure/update health care documents. At the minimum, everyone over the age of 18 needs 1) a Durable Power of Attorney for Heath Care, which gives another person legal authority to make health care decisions (including life and death decisions) for you if you are unable to make them for yourself; and 2) HIPPA Authorizations, which give written consent for doctors to discuss your medical situation with others, including family members. In addition, a Revocable Living Trust is preferable over a Will at incapacity because it can prevent the court from controlling your assets.

6. Review/update guardian for minor kids. It is quite likely that the person you name as guardian for your children when they are small will not be the best choice as they get older. Also, this person could change his/her mind, move away or even become ill or die. Revisit your choice from time to time, and name more than one in case your first choice cannot serve. Remember, if you haven’t named a guardian who is able and willing to serve and something happens to you, the court will decide who will raise your kids.

7. Review/update beneficiary designations. This is especially important if your beneficiary has died or if you are divorced. If your beneficiary is incapacitated or is a minor, setting up a trust for this person and naming the trust as beneficiary will prevent the court from taking control of the proceeds.

8. Review/update your insurance. Check the amount of your life insurance coverage and see if it meets your family’s current needs. Consider getting long-term care insurance to help pay for the costs of long-term care (and preserve your assets for your family) in the event you and/or your spouse should need it due to illness or injury.

9. Talk to your children about your estate plan. You don’t have to show them bank and financial statements, but you can talk in general terms about what you are planning and why. The more they understand it, the more likely they are to readily accept it—and that will help to avoid discord after you are gone. You can also talk to them about your values and the opportunities that money can provide. Even better, show your values by doing—the holidays are an excellent time for families to do charitable work together.

10. Get basic documents for your unmarried kids who are over 18. It’s a mild shock when we learn we can’t see our college kids’ grades without their permission, even though we pay the tuition. It can be much worse if they become ill. Unmarried adults (18 and over) need to have a Durable Power of Attorney for Health Care and HIPPA Authorization so you can act on their behalf in a medical emergency. (See #5 above.) And, while you’re at it, go ahead and have your attorney prepare a Simple Will and Durable Power of Attorney. Hopefully, these will not be needed but if an event does occur, you will be glad you have them.