NPR story about POLST and discussion of end of life medical care options

The idea of talking to doctors about the dying process, and your medical wishes, has been discussed before, including these pages, a little more than a month ago.  Typically all adults speak for themselves when it comes to care and medical decisions.

But how informed are these decisions?  And if a person can’t speak and express their own wishes, how can they appoint someone to speak on their behalf?Before a crisis, virtually any Michigan adult can name someone to serve as their patient advocate.  If that hasn’t been done, a trip to probate court is probably going to be required.

But just this week I heard a good article on Public Radio regarding a proposal to pay doctors so they can have a discussion with patients about end of life medical care.  http://www.npr.org/sections/health-shots/2015/08/18/427041879/medicare-says-doctors-should-get-paid-to-discuss-end-of-life-issues

Consider such conversations with family and friends, and make sure you get a designation of patient advocate (think medical power of attorney) in place that suits your needs and desires.  We can help.

Speech and Special Education for Children with ASDs

By Mary Kathryn McKinley

OSEP- The Last to Know?

On July 6 the US Dept. of Education, Office of Special Education Programs (OSEP), sent out a “Dear Colleague Letter” to the States.  They have apparently “received reports that a growing number of children with ASDs (Autism Spectrum Disorders) may not be receiving needed speech and language services.”

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/dclspeechlanguageautism0706153q2015.pdf

Attorneys or advocates who work with families who have children with Autism wonder what took OSEP so long to figure this out.

In many instances of which we are aware, schools do evaluations that demonstrate that a student has a decent vocabulary, or can form words acceptably.  Then schools often use these evaluations as a basis for informing the parents that the student is doing so well that they no longer NEED Speech and Language Services!  How wonderful!  Of course, that way of thinking conveniently misses the boat.

FACT: Most people with autism struggle mightily with communication challenges throughout their lives!  And need professional speech and language services throughout their lives, including at school, to try to strengthen these deficits.

In fact, communication is at the heart of ASDs. The DSM-5 (Diagnostic and Statistical Manual, the “Bible” for defining “mental disorders”) defines ASDs as being characterized by:

  1. Persistent difficulties in the social use of verbal and nonverbal communication as manifested by all of the following:
  2. Deficits in using communication for social purposes, such as greeting and sharing information, in a manner that is appropriate for the social context.
  3. Impairment of the ability to change communication to match context or the needs of the listener, such as speaking differently in a classroom than on the playground, talking differently to a child than to an adult, and avoiding use of overly formal language.
  4. Difficulties following rules for conversation and storytelling, such as taking turns in conversation, rephrasing when misunderstood, and knowing how to use verbal and nonverbal signals to regulate interaction.
  5. Difficulties understanding what is not explicitly stated (e.g., making inferences) and nonliteral or ambiguous meanings of language (e.g., idioms, humor, metaphors, multiple meanings that depend on the context for interpretation).
  6. The deficits result in functional limitations in effective communication, social participation, social relationships, academic achievement, or occupational performance, individually or in combination.”

We advise parents who are told that their kid doesn’t need speech and language services at school to request an Independent Educational Evaluation (IEE), based on a disagreement with the School’s evaluations.  Our office can help parents with this; if the process set forth in IDEA is followed, the school often ends up paying for the evaluation.

Then we advise parents how to get the best evaluation for their child.  The evidence developed through the IEE process can provide powerful support for parents’ position that their child does indeed need Speech and Language Services as part of his or her IEP in order to receive an appropriate education as defined by IDEA.

If you’d like to learn more or if this is an issue you are facing, feel free to contact us.

It’s “Quit Claim” not “Quick Claim”

Every now and then (maybe every week) I hear someone saying they have made or want to make a Quick Claim deed–and by that they usually mean a relatively basic fast deed, in which they plan to add other names on the ownership of their real estate, often as part of a plan to avoid probate and leave property to others via “rights of survivorship.”

They are sometimes surprised to learn the term is a QUIT Claim deed, and NOT Quick Claim.

A quit claim deed means the seller, giver, grantor of the property is simply giving up, transferring or adding someone (quitting) to whatever interest they may have in the property.  They are not making any guarantees about how solid their ownership rights in the property are when they use a quit claim deed.  They may be a rock solid owner of the property, or they might not really have a solid claim on the property.  But what they have, they are transferring, good or bad.  If title insurance policies were issued on the property, the company may not defend afterwards if there is a challenge to the title of the property as there wasn’t a guarantee or warranty of good title passing with the property.

So a quit claim deed, used a lot, can be a valid way to transfer property.  But should the property ownership or title to the property be defective in some way, those who buy or take or are gifted property via a quit claim deed have less recourse against the owner.

A warranty deed, on the  other hand, implies what’s in the name–there is a sort of guarantee or “warranty” that comes with the deed/transfer of the real estate.  Buyers or others who take via a warranty deed, would be able to sue the seller or grantor if title to the property was defective or they lost the property because it didn’t really belong to the seller/grantor in the first place.

One of the little things that happen, when one records a warranty deed at the local register of deeds office, is a property tax check.  Local officials are asked to see if property taxes are up to date.  This is because unpaid property taxes can cloud or muddy title on property.  Important to a warranty deed, unimportant to a quit claim deed situation.

That fee, which had  been only a dollar for many many years–maybe decades, was finally increased to five dollars beginning in July of this year, as part of legislation covering the issue and tax roll procedures at county offices.  As discussed in the Charlevoix County Register of Deeds web page:

House Bill 4075 was passed by the House and Senate and signed by Governor Snyder on May 26, 2015. This bill has changed state law regarding fees associated with the purchase of tax records and tax certifications required on some documents recorded for the public record.  The bill increases the fee from $1.00 to $5.00 on tax certifications for documents such as warranty deeds, land contracts, and condominium master deeds among others.  These fees are collected by the Register of Deeds as part of the recording process.  This portion of the bill goes into effect July 1, 2015.

Persons submitting documents that require a tax certificate need to plan accordingly to ensure their documents for land conveyances and related documents are not rejected due to lack of sufficient funds. 

Deed drafting can have many consequences, and a few words in a deed can make a world of difference.

If you are thinking of transferring property to others, or “avoiding probate” or “avoiding creditors” or are worried about Medicaid’s possible “estate recovery” we suggest you meet or talk with an attorney BEFORE you do so.  In my 32 years as an attorney I’ve seen too many messes and had to help too many people try to mop up after the fact when they didn’t fully understand what they were doing. And sometimes the property transfers or deeds have created problems that no amount of lawyering will fix.

Meanwhile, for those who wish to learn more on their own, here are some resources:

Michigan Land Title Standards:  http://connect.michbar.org/realproperty/publicresources/landtitle

Recording Requirements for Deeds in Michigan (MCL 565.201 et seq) http://www.legislature.mi.gov/(S(bnzn1xmoo3gzkl2133qqgmha))/mileg.aspx?page=GetObject&objectname=mcl-565-201

 

EEOC takes firmer stand on LGBT employment discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) has come to take the position that discrimination against transgender persons and discrimination against gay and lesbian  persons might be treated as sex discrimination under Title VII.

This position may allow some lgbt individuals, who have been fired largely because of their sexual orientation, to make an employment discrimination claim.  It may also mean more employers review their own policies and practices to minimize or eliminate lgbt employment discrimination.

This can make a difference.  As early as  1984 in a case in which I was suing a smaller south-western Michigan school district on behalf of a substitute teacher  I had used a sex discrimination claim and a host of others.  But in 1984 and 1985, the claim we first dropped, was the sex discrimination/employment discrimination claim.

In the case I represented a guy who had been let go because the school district thought he was HIV positive (he wasn’t) and/or because he was living with a person who was HIV positive. So I drew up a claim on several counts, including handicap discrimination, breach of contract, interference with contract, and sex discrimination–among others.

We gained more purchase and settled the case in my client’s favor with the handicap discrimination and breach of contract claims. (For those who may not know, a firing related to even the “perception” of a handicapping condition or disease in the employee is still improper on an employer’s part.)

At the time some other attorneys and I thought that had the district actually just fired my client because he was gay, they might have had an easier case.  And I believed there was probably anti-gay animus that prompted the firing–however, the board and school district defended their actions largely on the basis of an HIV scare. (Remember, again, we proved to them before trial that my client was not HIV positive, and that casual contact with a person with HIV was essentially without risk.)

Because the Michigan Elliott-Larsen (Michigan’s primary civil rights act) at the time hadn’t enumerated lgbt populations as protected (and still hasn’t) we thought the school district, if they had merely said “you’re fired because you are gay” might have had a stronger legal case.  Had the EEOC stance been clear back in 84/85, that claim we dropped would have remained a bargaining point in our settlement with the school district.

But if you think about it, at least one small part of sex discrimination can be seen as what I call “upset expectations” and expectations often built on stereotypes.  Women shouldn’t do this, guys shouldn’t do that, etc etc.

And so now, as thinking has evolved on this at the federal level, one wonders if the state will evolve too, even without specific mention of lgbt populations in the act.

From the EEOC’s own website is the following:

“In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is prohibited under Title VII of the Civil Rights Act of 1964.  See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).  The Commission has also found that discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes, such as the belief that men should only date women or that women should only marry men, is discrimination on the basis of sex under Title VII.  See Veretto v. United States Postal Service, EEOC DOC 0120110873 (July 1, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was  motivated by sexual stereotype that men should only marry women); Castello v. United States Postal Service, EEOC DOC 0520110649 (December 20, 2011)(accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that having relationships with men is an essential part of being a woman); Complainant v. Dep’t of Homeland Sec., EEOC DOC 0120110576 (August 20, 2014) (reaffirming prior findings that federal employees discriminated against on the basis of sexual orientation can establish violations of Title VII based on the sex stereotyping theory).

Consistent with case law from the Supreme Court and other courts, the Commission takes the position that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment.  Therefore, the EEOC’s district, field, area and local offices will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).

The Commission also takes the position, consistent with case law from the Supreme Court and other courts referenced at the previous link, that lesbian, gay, and bisexual individuals  may bring valid Title VII sex discrimination claims.  The Commission accepts and investigates charges alleging sexual-orientation discrimination, such as claims of sexual harassment or allegations that an adverse action was taken because of a person’s failure to conform to sex-stereotypes (described above)..”

It’s food for thought, and a step in the right direction regarding fairness for all.  Our chances at employment, and job promotion, as well as protection from discrimination or firing, should be based primarily on our ability and willingness to do the job, not our sexual orientation or religion or race or even a disability–if we can do the work.

Call us if you’d like to meet and learn more about this.  517 853-8015

A break for smaller non-profits? New simpler IRS process.

Some non-profits are on the smaller side, and now the IRS is making it easier for those non-profits to apply for recognition of tax exempt status.

The new procedure just kicked in at the beginning of the month, and takes under its umbrella most organizations with less than a quarter million dollars in assets and less than fifty thousand in annual revenue.

See more information here:  http://www.irs.gov/uac/Newsroom/New-1023-EZ-Form-Makes-Applying-for-501c3Tax-Exempt-Status-Easier-Most-Charities-Qualify

If you are forming a non-profit organization, we can help.  Michigan non-profit laws to set up a non-profit corporation don’t automatically fit within IRS rules (though it should be a bit easier now) and for those non-profits that want to chase down money, they may also need to take into account solicitation and fundraising rules in the state.

Even so, this is welcome news from the IRS for smaller non-profits.  If you’d like to know more, we can help–call us at 517 853 8015.

 

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