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Students with disabilities cannot and should not be denied the right to pursue a post-secondary education. Recently, more and more students are making the decision to move forward with their education beyond high school. It is important for these students to understand their rights at a post-secondary institution and know how those rights differ from the rights they have in high school. Students should also understand the responsibilities of the colleges to which they are applying.

In elementary, middle and high school, districts are required to provide a free appropriate public education (FAPE) to each child with a disability within their district. The school must identify the needs of each student with a disability and provide appropriate learning and educational tools to those individuals.

Colleges and other post-secondary institutions such as trade schools are not required to identify the needs of their students. They may not legally discriminate against a student with disabilities and must make appropriate academic adjustments in order to avoid discrimination. They are also required to provide housing that is comparable to that provided to all other students. However, they are not required to work proactively to address a student’s needs.

One of the most important rights afforded to students that wish to pursue higher education is that no student may be denied admission because of a disability. As long as a student meets the school’s essential requirements for admission, a disability cannot be cause for denial of admission.

If a student believes that they may need their college to make certain arrangements to meet their needs, then they have the right to request an academic adjustment. Academic adjustments include things like priority registration, reducing a course load, providing note takers or sign language interpreters, providing extended time for testing and equipping school computers with screen-reading.

Each college should have reasonable procedures for applying for an academic adjustment. It is important to inquire about the application process and submit your request as soon as possible. Since post-secondary institutions are not required to identify a disability, students and their parents must take care to ensure the appropriate steps are taken. Schools may not charge for this application process.

If a student believes that he or she is facing discrimination at college, there are several ways to address the issue. Colleges are required to provide a staff member who coordinates the school’s compliance with the law. This coordinator should be available to students who wish to have their concerns addressed.

Colleges must also have a procedure for a student who believes they are being discriminated against to file a grievance. As a last resort, if the student is not satisfied with the outcome of the grievance process, they may file a complaint against the school with the Office of Civil Rights or through the courts.

Pursuing a college education can be both exciting and frightening. Students who face the challenge armed with knowledge of their rights will have the tools they need to help them succeed in their pursuit of higher education.

To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

Littman Krooks attorney Bernard A. Krooks will lead an interactive discussion and analysis of New York’s new Power of Attorney law. Significant changes have been made to the New York general obligations law and the statutory short form Power of Attorney.

The new law affects both the content and execution of the Power of Attorney form. Some of the major changes include:

• The agent must sign and date the Power of Attorney and that signature must be acknowledged by both the principal and the agent.

• A “prudent person standard of care” is provided that has statutorily defined responsibilities. Responsibilities include record keeping (with receipts) and a requirement for the agent to make records available within 15 days of a written request by a monitor, co-agent, certain governmental entities, a court evaluator, a guardian, or a representative of the principal’s estate.

• In order for the agent to have the authority to make gifts, the principal must initial a provision granting gift-making authority plus the execution of a “statutory major gifts rider” which must be acknowledged and have two witnesses.

According to Mr. Krooks, the program is a must for all estate planning practitioners. The new law will go into effect on September 1, 2009.

The program begins at 8:30 am. on March 31. A brown bag breakfast will also be served at Marcum & Kleigman offices in New York, located at 655 Third Avenue, 16th floor.

Bernard A. Krooks is a founding partner of the law firm Littman Krooks LLP with offices in New York City, White Plains and Fishkill. Mr. Krooks is President of the Special Needs Alliance (SNA), a national network of attorneys dedicated to assisting families with special needs planning. Mr. Krooks is past Chair of the Elder Law Section of the NYSBA, Chair of its Legal Education Committee, and past Editor-in-Chief of the Elder Law Attorney, the newsletter of the NYSBA Elder Law Section.

To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

Planning for the future of a child as he or she transitions into adulthood is full of challenges for both the child and the parent. Children with special needs and their parents face an additional set of challenges. Preparations must be made for living arrangements, financial arrangements and the variety of caregivers that may be involved in the child’s development and adult life.

As a child with special needs approaches the age of 18, a variety of circumstances change. Programs that are available to help with the care of minors may no longer be available for adults. Leaving the public school system and pursuing a post-secondary education brings with it a new set of responsibilities. Eligibility for public financial benefits is subject to strict rules. Health care decisions are not automatically left to parents or guardians.

Financial planning for a child with special needs is the first step in providing a solid base of lifetime support. Once the child turns 18, his or her income will be used to determine eligibility for public benefits like Supplemental Security Income (SSI) and Disability. Earning too much because of contributions from parents will cause the loss of public benefits. This can be avoided through a Supplementary Needs Trust. Funds paid into the Trust will not be counted as income and therefore will not affect eligibility for benefits. However, the funds from a Supplementary Needs Trust can only be spent in certain ways. Planning for lifetime care must include instructions as to how the funds in the Trust are to be distributed and who will manage the trust.

Transitioning to adulthood also requires the use of more decision making skills. Parents of a child with special needs are used to making decisions for their child. As a child approaches adulthood, parents should make a determination about whether or not he or she will be capable of making appropriate decisions. In some cases, parents may need to petition for guardianship so that they can continue making important decisions. In these cases, parents will also need to appoint successor guardians to care for the child when they are not longer able.

Alternatives to guardianship do exist and may be a better option depending on the individual. The child turning 18, if he or she understands, can execute a durable power of attorney and create a healthcare proxy. This will provide for an agent to handle financial decisions and an agent to handle healthcare issues without the hassle of applying for guardianship.

Some children with special needs may wish to continue with education beyond high school. It is important for these students and their parents to understand their rights at a post-secondary institution and know how those rights differ from the rights they had in high school. Post-secondary institutions may not discriminate against students with disabilities, but they are not required to identify the special needs of their students as public schools are.

If a student believes that they may need a college to make arrangements to meet their needs, then they will need to request an academic adjustment. Academic adjustments include things like priority registration, reducing a course load, providing note takers or sign language interpreters, providing extended time for testing and equipping school computers with screen-reading. It is the responsibility of the student to request such an adjustment.

Another important consideration for parents of a maturing special needs child is housing. At some point, living at home will no longer be an option. Families will need to do significant research into their options. Will the child be able to live alone? Or will he or she require a group home or some other form of supportive housing? This should be decided well in advance so that it is not an issue during the stress of a parent’s illness or death.

Growing up and moving into adulthood is difficult for any adolescent, and even more so for a child with special needs. However, appropriate planning can help make the transition go more smoothly for the whole family.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

A good estate plan provides for the orderly transfer of property and the finalization of one’s wishes upon death. Estate planning tools, such as Wills, Trusts, gifts, and Powers of Attorney handle physical assets in a way that maximizes benefits and minimizes hassle for beneficiaries. However, as technology becomes an increasingly integral part of everyday life, “digital assets” such as email, social networking and online banking accounts also deserve consideration in modern estate plans.

Failure to make plans for online accounts or to leave behind a comprehensive list of passwords can cause unexpected hassle. Online banking accounts need to be secured and closed. Family members may want access to accounts in order to download and save any photos, writings or other digital works for posterity. In addition, family members may be able to take advantage of digital assets capable of generating revenue by having their Creative Commons licenses changed so beneficiaries can receive compensation. Most terms of use expressly forbid the use of an account by anyone other than the account holder, and attempting to address these issues without proper instructions can be difficult.

Since digital asset planning is new, the law is not always clear on the rights of online account holders and their family members. The question, which few existing laws address, is, who owns the content? And who has the right to access and close the accounts? Service providers like Facebook, Google and Twitter each reserve the right to close accounts at any time, and they are all wary of providing family members access to accounts.

Facebook, for example, expressly prohibits giving user information to family members, saying only that they will “consider” requests from close family members to close the account. Gmail, Google’s email service, will open an account to family members, but only after a copy of a death certificate, a Power of Attorney document and an e-mail sent from the deceased’s account are provided.

Estate planning attorneys and technology developers are beginning to look at digital assets like any other assets that can be bequeathed to a beneficiary after death. Companies like Legacy Locker offer the ability to safely store things like PC logins, domains and passwords to online accounts. Once the information is stored, a “beneficiary” is designated for each password and account. Beneficiaries then receive the information that has been bequeathed to them with instructions as to how it should be used after the account holder’s death.

It is increasingly difficult to make it through life without leaving an online trail of emails, accounts and passwords. These assets need to be addressed in an estate plan in order to protect your privacy and the privacy of your family, friends and business associates. Gathering information about accounts and passwords and indicating what should be done with them upon your death will ease the burden on family members and protect important online assets.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more about New York elder law, New York estate planning, NY elder law, New York special needs planning, visit Littmankrooks.com.

If you happen to be a Medicare Advantage fan, and feel the service has done right by you, you will not be too impressed to find out that in 2010, Medicare Advantage will no longer be offered by some of the largest health insurance companies in the US – which includes Well Care and Coventry.

Shocking isn’t it? Will other smaller companies go the same route? Chances are smaller companies will indeed follow in the footsteps of their bigger competitors. If the big boys on the block can’t afford to offer Medicare Advantage any longer, then it’s not likely smaller companies will have much success staying afloat either.

You might be wondering what on earth is going on and why you are about to lose what you feel is a good health care plan. Well, here is the deal. The government has, since the inception of Medicare Advantage, seriously over funded it. In fact, the doctors in the various networks actually got paid more than Medicare paid under the auspices of Medicare Advantage.

Given the poor state of the US economy, the new administration in the White House, and the fact that President Obama is now trying to straighten up the health care system, over funding to this program (Medicare Advantage) will cease in 2010. Evidently there will be other programs faced with funding crunches in the year to come.

Will these funding changes make a difference in how those 65 and over or under 65 and on Medicare disability use the health system? Yes indeed, as they will need to be absorbed into the Medicare system in some other way, and use other alternatives for their health care needs.

This coming change will affect tens of thousand of people, and the health insurance system will be in a total uproar for the better part of 2010 trying to sort out all the new changes. Think smart and call a health insurance agent now and find out what you may do to switch from Medicare Advantage to something else.

Richard Cantu is with Medicare supplements resource, GoMedigap.com. To learn more about Medicare, Medicare supplements, or Medicare supplement insurance visit GoMedigap.com.

The more things change, the more they seem to – well, at one time that old saying ended with “the more they remain the same.” This however can’t actually be said of the coming changes to the Medicare system in 2010. This one change will rock your world if you happen to be 65 and over or under 65 and on Medicare disability.

Well Care and Coventry, two of the largest companies in the Medicare health insurance business will no longer be offering Medicare Advantage in 2010. Yes, they will be totally out of business, as they can no longer afford to offer the Medicare Advantage plan. Why is that? This is because the government is reducing the amount of money paid to companies who offer Medicare Advantage.

If you think that might not affect too many people, think again, as just Coventry alone handles Medicare Advantage benefits for over 318 thousand individuals. Suffice it to say that tens of thousands of Medicare Advantage recipients will be wondering what hit them. Well, and also wondering what they are going to do with the demise of the Medicare Advantage plan.

One thing you will need to know is that you will be guaranteed issue for 63 days once your Medicare Advantage plan(s) are no longer in effect. However, in order to get a jump on planning for the future, make the smart move and talk to a local health insurance agent now. Choose one that knows their plans intimately and will be able to walk you through what other alternatives you may have.

While the ink is not dry on this particular change for the future, it very much looks like, even though there may be some other alternative offered to those who will lose their Advantage plan(s), the alternatives may be more expensive and have higher premiums.

Those between a rock and a hard place would be best to start checking out Medicare supplement alternatives as soon as they can, and also making it a point to talk to a knowledge health insurance
agent.

Richard Cantu is with Medicare supplements resource, GoMedigap.com. To learn more about Medicare, Medicare supplements, or Medicare supplement insurance visit GoMedigap.com.

Gene L. Osofsky of the law firm Osofsky and Osofsky asserts that U.S. medical care has become a “mountain of cost.”

Elder Law attorney Gene L. Osofsky, like many Americans, recently read a feature article in the April 27, 2009, issue of The Nation that gave him pause. The article, entitled “A System from Hell” by Kate Michelman, detailed the tragedy of a family that, despite possessing adequate insurance coverage, has nevertheless been pushed to the brink of destruction.” Her young adult daughter was paralyzed when a horse fell on her; her husband, who had been diagnosed with Parkinson’s Disease, was then crippled and lost any hope of independence in the twilight of his life, after shattering his hip; and now the mounting medical bills keep on exacting a terrible toll – all this happens to a responsible couple who had seemingly prepared for health-related contingencies. How could this happen in America?” Osofsky asks. Michelman’s husband was placed in assisted living after surgeries and hospitalizations for his fractured hip. Ironically, the couple had thought to purchase private long-term care insurance years before their crisis, but although their insurance plan nominally covered long-term care, it did little to address her husband’s long-term care in respect to its actual costs. “How does one plan for a situation such as this? Kate Michelman certainly thought she and her husband had planned for every eventuality – she is a well-known and well-to-do public figure, he was a tenured college professor, they had excellent medical insurance, even long-term care insurance, and still it wasn’t enough,” Osofsky says, “They still found themselves on the brink of losing everything.”

According to Osofsky, Michelman’s story is frightening “precisely because it could happen, and is happening, to any of us.” The unfortunate truth about medical insurance, long-term care insurance, and Medicare/Medi-Cal for those who qualify, is that they often cover “most of the cost” of medical treatment and rehabilitative care. Asserts Osofsky, “Most is woefully lacking when we must face the awful reality of how high the costs actually are. Deductibles, co-payments, share of costs, and uncovered services have become a huge personal obligation, a black hole of debt where accumulated life savings can disappear in a heartbeat.” Is there a solution? The key is to enlist the help of committed experts who know how to navigate the convoluted worlds of the medical industry, insurance industry, and government benefit programs. Osofsky suggests “finding professionals who can help you build a plan to make the best use of those systems and what they offer.” But even that’s not a complete solution. Something needs to change. Concludes Osofsky, “Medical care in the United States has become a mountain of cost that even the young and the healthy ignore at their own risk.”

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Gene L. Osofsky, of the law firm Osofsky & Osofsky, explains how being regarded as a “care custodian” may disqualify a person from being a beneficiary of a testamentary distribution.

“It might seem counterintuitive,” says Elder Law specialist Osofsky, “but according to a 2006 case decided by the California Supreme Court, being designated as a ‘care custodian’ of a dependent adult, may actually disqualify such persons from receiving testamentary bequests.” Adds Osofsky, “Only if the person making the testamentary bequest engaged a separate attorney to conduct an Independent Review and affirm that the testator was of sound mind and knew what he was doing, could the bequest be upheld.” The law seeks to protect dependent adults from coercive beneficiary disbursements made under duress or as the product of overreaching or undue influence. In certain care settings, California law presumes the naming of a care custodian as a beneficiary of one’s Will or Trust to be coercive actions assumptive of an unscrupulous care custodian and therefore void.

The case of BERNARD V. FOLEY (decision handed down August 21, 2006) found that unrelated friends providing ongoing health services to a dependent adult were “care custodians” under the relevant state statute and were therefore disqualified from receiving a testamentary distribution. James Foley and Ann Erman were longtime friends with Carmel Bosco. Ms. Bosco lived with them for two months prior to her death. Foley and Erman assisted her with her daily needs, including preparing her meals, helping her bathe, changing her diapers, and administering oral medications. Three days before she died, Ms. Bosco altered her living trust to make Mr. Foley and Ms. Erman each 50 percent beneficiaries. They had not previously been beneficiaries of the trust.

But Ms. Bosco’s relatives protested. Petitioning the court to invalidate the amendment, they argued that Mr. Foley and Ms. Erman were disqualified from receiving a testamentary distribution because they were “care custodians.” “Under California law, there is a presumption that donative transfers to care custodians are procured by undue influence,” explains Osofsky, “The state Supreme Court merely affirmed that a ‘caregiver’ under the statute could even be a friend who renders care to a dependent adult without compensation.” According to the Court’s decision, the definition of custodial care includes uncompensated or nonprofessional care and there is no evidence the legislature intended to make an exception for preexisting personal friends who provide health care services. Concludes Osofsky, “Elders have to be protected from people who would provide them with unprofessional care simply as a pretense to inheriting their assets. The very fact that they require such care puts them in an extremely vulnerable position.” But even this can be less than ironclad. “Sometimes persons have legitimate reasons for wanting to make bequests to their non-family member caregivers. In California, this essentially requires two attorneys to be involved, one to perform the Will or Trust and a second to conduct the Independent Review. Is this a trap for the well-intended?”

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Probate can be a difficult process. But using joint accounts to avoid it may not always be a good idea.

If you are thinking that joint accounts are a foolproof way to escape probate and funnel dollars to loved ones as a sort of “poor man’s estate plan,” think again. Circumstances exist when a joint account is an excellent option. But the instrument has its pitfalls as well, and if misused or entered into without caution, joint accounts can pose serious risks. Adding a loved one to a bank account may seem like a prudent action, but such actions can impact Medicaid planning or even make your account “fair game” for your loved one’s creditors.

Applications for Medicaid long-term care coverage can be tricky. States are obliged to examine the applicant’s assets to determine eligibility. Although a joint account may include two or more names, states tend to make the assumption that the applicant is the owner and entirely responsible for the total funds in the account, irregardless of who might have contributed to the account. Imagine your name is on a joint account. You enter a nursing home. The state is still likely to assume that the account’s assets are yours – especially without proof otherwise. Realize also that proving anything is a lot more difficult from inside a nursing home, or even an assisted living facility, when you might not have ready access to your papers and files as you did within your home sweet home back when you were well and able.

It can get worse. What if you or the other joint owner of the account decides to take monies out of an account that is already under state scrutiny? This can be perceived as “improper transfer of assets” for Medicaid purposes, which may have an adverse effect upon your eligibility. You or the other joint owner could become ineligible for Medicaid for a period of months or perhaps years. In fact, if a joint owner is removed from an account, it can appear suspicious to investigators. Example: Your parent enters a nursing home. You decide to remove your parent’s name from the joint bank account. Again, this simple action, prudent on its face, can be construed as an improper transfer of assets.

Remember that an account remains exposed to all the account owners’ creditors. If your son is added to the account and falls behind (or worse, defaults) on his credit card debt and gets sued, guess who is on the hook? Under laws currently in effect, a credit card company can confiscate the money in your account to pay off your son’s debt. Another pertinent question revolves around trust. Can you completely trust the person you are adding?

Viable alternatives to joint accounts do exist. A consultation with your attorney specializing in Elder Law may suggest a durable power of attorney or else a well-considered trust instrument. Seek out a qualified Elder Law attorney near you.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

The Durable Power of Attorney is no longer a luxury. For your Elder Law counsel, it has become essential.

It is the worst economic downturn since the Great Depression of the 1930s. The decline and associated roller coaster ride on Wall Street has made durable power of attorney into not just a luxury when it comes to planning your estate, but an absolute necessity. Some Elder Law attorneys have come to view the instrument as even more integral to contemporary estate plans than a Will or Trust.

A Dow Jones newswire column is a case-in-point. It presents the cautionary tale of a female elder who had recently lost half of $6 million in savings. The losses were incurred almost entirely on the stock market. The woman’s woes only intensified when she became incapacitated, and her relatives were stymied when attempting to shift her investments, becoming increasingly frustrated as various remedies were attempted as damage control measures. But they lacked legal authority to take these corrective steps. An inherent irony was that the woman had once executed a power of attorney in case she ever were to become incapacitated, but the issue had become moot as the person she’d nominated had died and she’d neglected to name a successor. If dead men (or women) tell no tales, it’s also true that dead friends, no matter how trusted, cannot follow through with their power of attorney responsibilities.

Such columns have also tackled what many consider to be the thorniest question when executing a power of attorney. Is there someone you can actually trust with this power? Trust is always a thorny issue, but perhaps it is better to avoid naming someone if one-hundred percent trust has yet to be established. In fact, the powers of attorney instrument has become the subject of frequent “horror stories” in recent years, especially since the onset of our current Great Recession. In fact, exploitation of vulnerable elders by rascally persons misusing their powers of attorney roles is becoming epidemic.

But this doesn’t make the instrument less necessary in these difficult times, assert Elder Law experts such as Gene L. Osofsky. If someone trusted can be found, and if proper safeguards are in place, such as deciding who retains originals of the power of attorney document prior to when the instrument may be needed, then it can work well indeed. A power of attorney can take effect immediately or can become effective only when the subject is incapacitated as defined in the document and confirmed by a physician. In 2009, the need for a durable power of attorney has never been greater.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.