In his book “The New Knowledge of Dog Behavior,” originally published in 1963, Clarence Pfaffenberg tells how he was assigned the task of finding the ideal puppy to train as a guide dog for Guide Dogs for the Blind, Inc. in California. He states that “we can sometimes study our own behavior best by studying the behavior of dogs, especially puppies. This is true because a dog’s behavior toward his human family (owners) is so much like that of a child toward his own family.” He goes on to show that our similarities have allowed man and dog to live together for thousands of years, and these similarities make the study of dog behavior so valuable in studying human behavior. According to Pfaffenberg, a dog asks three questions about any new thing it encounters: (1) Will it hurt me? (2) Can I eat it? (3) Can I play with it? This indeed sounds much like how a child encounters the world.

While we and our dogs may act a lot alike, the author wrote that “it is our dissimilarities which have brought man and dog together and kept them together as a team so very long. . . Because a dog is willing, even eager, to assist man, his ability to do things we cannot do (or, if we can do them, to do them better than man can) has enabled man to use a dog’s capabilities as a projection of his own or, in the case of a Guide Dog, to substitute for an ability he has lost.”

I hope you have met Gus, my Certified Therapy Dog, on our website Staff page before (or at one of the events we go to regularly). This Musing is not about Gus, though. I hope you will go to our website, www.ElderLawMS.com, and click on the Staff page to meet my daughter, Melanie, and our new four-legged staff member, Madine. Madine is Melanie’s Skilled Service Dog from Canine Companions for Independence (CCI) in Orlando, Florida. They have been a team since November 2007. As you will see, Melanie is a wheelchair user, but Madine’s capabilities and unlimited energy and desire to please provide Melanie with a great substitute for her limitations. In her training at the CCI Center in Orlando, Madine learned 42 commands that make her quite useful to a person with disabilities. In a two-week “team training” session, the CCI staff and trainers observed humans and dogs interact, assessed home and work situations, and placed eleven dogs with children and adults based on needs and capabilities. All we can say is that Madine and Melanie have found themselves to be a wonderful team.

The process of breeding, training and placing service dogs and companion dogs to “enable” disabled children and adults is not cheap, but the rewards are incalculable. If you are looking for a worthwhile enterprise to make a contribution to that will expand the horizons of possibility for a person with a disability, or to learn more about service and companion dogs, go to:

www.cci.org

Each year as we approach the holiday season, we receive questions from our clients as to how grandparents and other relatives can make gifts to children with special needs without creating problems for government benefits. These conversations don’t involve gifts of toys and other items of personal property, since these items are typically excluded as “exempt” resources and have no impact on public benefits. Instead, the questions usually involve how grandparents and other family members might make gifts of cash or other financial assets.

Most of our clients are informed enough to know that a direct gift of cash is almost always a bad idea. In fact, the challenge often lies not in the discussion of the type of gift, but rather in determining how best to raise the topic in the first place. Indeed, discussions of money can often be awkward and uncomfortable for both sides.

In this issue of The Voice, we thought it might be helpful if we wrote a letter to Grandma and Grandpa on behalf of the grandchild with special needs, in hope that it may facilitate a more detailed discussion with those who are inclined to be generous.

Dear Grandma and Grandpa:

Thank you so much for thinking about me again at this time of year. I know how lucky I am to have such generous family and friends. I am writing this letter to you because sometimes things that are done with the best intentions can result in unintended problems. Sometimes those problems occur immediately, but in many cases they don’t happen until many years later.

I understand that you are concerned that I may not be able to work and support myself when I get older and that you would like to provide some financial assistance to help make it easier for me when that day comes. I want to explain some of the things that can happen when these acts of generosity are carried out for the right reasons, but in the wrong way.

Counting Your Nickels

You probably know that I get special help because of my disability. Sometimes that help comes in the form of a check each month, and sometimes that help comes in the form of government funded insurance to pay for social workers, therapists, and other aides that are not available through the school district or through mom and dad’s health insurance. These programs have very strict limits on what I can own and what I can earn. When someone gives me money or opens an account in my name, I have to tell the government that I have assets in my name (even if I’m too young or incapable of spending it). When that happens, it puts my benefits at risk.

Delaying (not avoiding) the Problem

You might be thinking that a safe way to make gifts is to open an account which is not available to me until I reach 18 or 21. This is partially true, because some government programs will disregard these accounts until I reach the age when the account will be put into my name. More often than not, however, these accounts create significant complications in the future, often involving additional time, effort and expense at precisely the time when you thought the money would be available to help.

For example, a Uniform Transfers to Minors Act (UTMA) account becomes my property when I reach the age of 18 or 21. This occurs automatically, regardless of whether I am participating in one of those means tested government programs, and even if I am not capable (because of my disability) of managing that money. When this happens, I am really stuck. On the one hand, by law the money is considered mine when the account terminates on my 18th or 21st birthday. This means I will likely lose my Supplemental Security Income (SSI), Medicaid and other government benefit programs as of that date. Yet, at the same time, my disability may prevent me from making my own decisions with the money, so I may not be capable of taking any steps in order to protect my eligibility for benefits. In many cases I will need to hire a lawyer in order to get court permission to put the money in a different type of account, usually a type of “first party supplemental (special) needs trust” account. Depending on the amount in the account, I could end up with quite a bit less than you originally intended once the costs and expenses of the proceeding have been paid. In addition, any funds remaining in that trust at my death would have to first reimburse the government for any services it has paid on my account through the Medicaid program before it could pass to anyone else (your other grandchildren, for example). I know you wouldn’t want that.

Words Matter

I know that you have been buying savings bonds for me from the day I was born. Sometimes you put my name on the bond, sometimes you put both my parent’s and my names on the bond, and sometimes you put my parent’s name on the bond, “payable on death” to me. These bonds can create the same types of problems that a Uniform Transfers to Minors Act account can create. At some point they will be countable in determining my continuing eligibility for one of these really important programs, and I may not be capable of taking any steps to protect the bonds without the assistance of a lawyer and the permission of a judge.

The Unlucky Beneficiary

Maybe you were thinking that you can avoid some of these problems by waiting until the end of your life before the property is given to me, perhaps by naming me as a beneficiary on a life insurance policy, an annuity, or even a small retirement account. But remember that those proceeds are available (and countable) to me when you die if I am the named beneficiary. Just as with the Uniform Transfers to Minors Act account, the government benefit programs will count any assets that come to me by beneficiary designation.

Hoping for the Best, but…

While it may be difficult for you (and for me) to admit, it could turn out that I will not be ready to manage money when I turn 18 regardless of possible concerns with government benefits. We both know how difficult it is to predict how any young child may act when he or she reaches adulthood. I may be able to read and write, have conversations, go to school and hold down a job, but I may simply be unable (or unwilling) to make good decisions with my money. I may spend it irresponsibly, I may give it away, or (worse yet) I may not be able to tell when someone is taking advantage of me. Government benefits aside, it just may not be a great idea for me to have direct access to a lot of money when I get older.

What Can You Do?

There are ways that you can help me. Depending on the size of the gift, it may be easiest to simply give the gift to my parents and ask them to hold it for me. So long as the bank account is in their name and uses one of their social security numbers, it won’t create a problem with my government benefits. For smaller gifts, this can be the best solution.

If you think that I may one day go on to higher education, you could open a “529 Account” for my benefit. These accounts earn money on a tax free basis, and have other tax advantages too. But the most important thing is that the accounts are considered owned by the person holding the money (i.e., the “owner” of the account), and not the person who might be using the money to pay for education expenses at some point in the future. Some grandparents open these accounts in the name of their children (i.e., the parent of the child with special needs). If it turns out that I’m not able to go to school, the money could be used for one of your other grandchildren who will have that opportunity. Your financial advisor can help you set up one of these accounts (although you might want to check with my parents’ special needs trust lawyer to be sure the account is titled correctly, and that the government benefit program rules which deal with these types of accounts haven’t changed).

It may be that my parents have done their estate planning and have already created a “supplemental (special) needs trust” for me as part of that plan. These trusts are specifically designed to hold money for people with special needs, and can provide the best of both worlds: a trustee is appointed to manage the money (sometimes a parent will serve as the trustee), and the trust is “exempt” in determining eligibility for most government benefit programs (i.e., the government won’t treat the money as if I own it). You could also name the trust as the beneficiary of a life insurance policy or retirement account. Just remember that if you are thinking about a significant sum of money, it’s important for you to talk to a lawyer who has experience working with these types of trusts.

And, of course, you could always buy me some toys…

But In The End, What I’m Really Thankful For…

…is knowing that you are thinking about me this holiday season.

***********************************

The Voice is the e-mail newsletter of the Special Needs Alliance. This installment was written by Special Needs Alliance member Edward Wilcenski, a founding partner of the law firm of Wilcenski & Pleat PLLC in Clifton Park, New York. He practices in the areas of Special Needs Planning, Elder Law, and Trust and Estate Planning and Administration. Ed is a past President of the Special Needs Alliance, and writes and lectures frequently on issues affecting individuals with disabilities and their families

Long-time readers of The Voice know that we rarely repeat an issue. In the world of disability there are many important topics to choose from, so the challenge has really been in deciding which topics are of most interest to our readers rather than finding something interesting in the first place. Because the Voice has many new readers each year, we know that many of our current readers may have missed this article when it first appeared in November of 2010. With this in mind, we’ve decided to reprint this article written by Edward V. Wilcenski, hoping that it may catch newer readers before they make their final decisions on how to make holiday gifts to their family members and friends with disabilities.

About this Newsletter: We hope you find this newsletter useful and informative, but it is not the same as legal counsel. A free newsletter is ultimately worth everything it costs you; you rely on it at your own risk. Good legal advice includes a review of all of the facts of your situation, including many that may at first blush seem to you not to matter. The plan it generates is sensitive to your goals and wishes while taking into account a whole panoply of laws, rules and practices, many not published. That is what The Special Needs Alliance is all about. Contact information for a member in your state may be obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs Alliance online.   Reprinted with permission of the Special Needs Alliance – www.specialneedsalliance.org.

I was talking recently with two investment advisor friends of mine.  One of them told me that he had gone to visit an aunt in a nursing home not long ago.  He said he felt awkward when he went because of all the old people sitting around in wheelchairs or lying in their beds with open doors.  He didn’t know just what to say, or how to interact with them.  Let’s face it – folks in nursing homes are not like us or the younger, successful, vibrant people we deal with each day.  But my friend admitted he did not feel right about feeling awkward or put off by those once-younger, once-successful, once-vibrant men and women who now seem so alone.

My other friend piped up and said that his wife’s grandmother had gone into a nursing home many years earlier.  His wife was not a shy person and, according to this friend, made it her cause to go frequently to visit her grandmother and to make her day – and that of every other resident she encountered – as pleasant as possible.  The young wife and granddaughter would stroll calmly and confidently through the nursing home hallways, speaking compliments to the ladies about their outfits and asking questions of the men and women so as to learn where they were from and about their families and histories.  My friend said that, while he was also intimidated by the thought of going there, his wife dragged him along on a few occasions.  As he watched how she conversed and shared with these wise elders and saw the smiles and twinkles she brought to mouth corners and tired eyes, he said it became sort of infectious.  He started talking to those folk as well and found that it was easy and brought joy to both him and those residents.

September 21 is Alzheimer’s Action Day.  Here are a few actions you can take:

1.  Educate yourself. If you don’t know someone with Alzheimer’s, you will.  In order to understand this disease and the other types of dementia (some treatable), go to web sites for such organizations as the Alzheimer’s Association (www.alz.org) or the Mayo Clinic (www.mayoclinic.com).  At the Alzheimer’s Association website, you will learn among other things that in 2010 there were approximately 53,000 people in Mississippi with Alzheimer’s disease, and that number is expected to increase to 58,000 (14%) by 2020 and to 65,000 (27%) by 2025.

2.  Equip yourself. In 2010 there were 198,199 Alzheimer’s and dementia caregivers in Mississippi, who rendered 225,709,258 hours of unpaid care for persons with dementia.  If you or someone you know is providing care for one of these individuals, you need all the help and resources you can get.  You can find caregiver resources through the Alzheimer’s Association website.  Our firm also provides a FREE Alzheimer’s Resource Kit that contains regular e-mail tips and several e-books that you can download to your computer as resources for frequent reference.  The topics of these booklets include How to Pay  for Nursing Home Care, How to Help Someone With Alzheimer’s Stop Driving, The 101 Most Frequently Asked Questions About Alzheimer’s, and the Alzheimer’s Legal Action Guide.  There are also some MP3s from renowned professional caregiver Jo Huey with encouragement and information to help you succeed as a caregiver.  To get these FREE RESOURCES, go to:

www.MemoryLawyerMS.com.

There is no obligation and no one will contact you unless you call us for additional help.

3.  Enjoy some time with a person with Alzheimer’s. Just as my professional friends found out, those older persons are just people who now live in a different place and deal with problems of aging.  They still respond to kindness and light up at happy words spoken and unrushed moments spent with someone new.  So, go make someone’s day!  You’ll be glad you did!

We in Mississippi are blessed to have wonderful resources, both natural and people.  Many well-known folk have written much for our education and enjoyment about numerous topics of interest.  Chef and writer Robert St. John has written many articles about our state’s food and culture.  I was particularly grabbed by one of his statements in his June 8 column in the Clarion-Ledger entitled “Most frequently asked questions (yes, I eat it all . . .).”  In responding to a question about his writing career (after eight books), he said:  “I told my wife I spent my first 40 years living, and I’m going to spend the next 40 writing about it.  I’ve been blessed with the curse of having a great memory.”

I hate that guy.  No, I mean it in a good-natured, not literal kind of way.  You see, I have NOT been blessed with the curse of having a great memory.  I can’t remember names of people I have met, sometimes even recently.  I find myself greeting those familiar faces with “Hey!  How’re you doing?” and then at the earliest opportunity going back to my church directory or college yearbook and looking for them so I can recall the names.  But failure to remember the names or past events takes nothing away from the enjoyment of the experience of meeting (again) someone who is glad to see you.  Also, I cannot remember many significant events in my past.  That’s why I am glad we took photographs of the birth of our daughters and many milestones in their growth, of family events that included many family members who are no longer living but who meant so much, and of places that brought immense joy when visited for a while.  I have become resolved that I have a difficult time remembering things, and that’s just how it is with me.  You see –

I have been cursed with the blessing of having a poor memory.

And so it is with so many of our clients who have been touched by dementia.  The startling statistics show that, while the over-65 population is expected to double by the year 2030, the number of persons with Alzheimer’s disease is expected to triple in the same period.  Longer life spans make it critical to continue to search for ways to combat the effects of this disease.  But in the meantime, how do those who have dementia live with it?  It has been brought home to me through many statements of spouses and children of those beloved individuals who can now no longer even remember their families.  They have been cursed with the blessing of a poor memory.  For many with early diagnosis, the fact that they cannot remember old friends, family and haunts is frustrating.  Their loved ones can do things that will relieve some of this stress, such as preparing a scrapbook of those past events, people and places that can be looked at for recollection.  Or preparing a “family and friends directory” with photos of all those people, so that when visited by those persons, the photo and explanation can be used to re-connect where failing memory has removed the connection.  (These and many other tips and solutions can be found in the free Alzheimer’s Resource Kit available at www.MemoryLawyerMS.com.)  For persons with more dramatic loss of memory, we have often heard the family members say “She is not bothered by not being able to remember any more, because each conversation and each meeting is a new experience for her.  We have just learned not to expect her to remember and not to argue with her about failed memories, and things go just fine.  She lives in the moment, and she seems quite content.”

So it is with memory.  Some of you are blessed with the curse of a having a great memory.  Like Robert St. John, be sure to share those memories in shared stories, photos and writings with those you love.  Memories are gems to be polished and treasured.  But if you are, like me, cursed with the blessing of a poor memory, learn to live in the moment.  Be sure to enjoy connecting with each person you meet, even if you’ve forgotten the name and past connection.  Relish the fact that you also don’t remember lots of the bad times you’ve had.  And keep those directories, photo albums, yearbooks and scrapbooks.  You may need them.