Supreme Court decides case regarding taking service dog to school

In Fry v. Napoleon Community Schools (February 23, 2017), the Supreme Court unanimously ruled that Ehlena Fry, a child with cerebral palsy, should have her day in court to argue that “Wonder,” her service dog, may accompany her to school. Wonder is a trained service dog, recommended by Ehlena’s pediatrician. Wonder, a goldendoodle, helps Ehlena to live as independently as possible by assisting her with various life activities. In particular, Wonder aids Ehlena by retrieving dropped items, helping her balance when she uses her walker, opening and closing doors, turning on and off lights, helping her take off her coat, and helping her transfer to and from the toilet.

The school system refused to allow Wonder to join Ehlena in kindergarten after deciding that a human aide could provide the same assistance provided by Wonder. Later, the same year, Ehelena’s family again sought permission for Wonder to accompany Ehlena and the school agreed to a trial period. At the conclusion of the trial period, the school again said that Wonder was not welcome in the school. Ehlena’s family then filed a complaint with the Department of Education’s Office for Civil Rights (OCR). OCR agreed that the school was discriminating against Ehlena based on her disability. OCR analogized the school’s conduct to requiring a student who uses a wheelchair to be carried by an aide or requiring a blind student to be led around by a teacher instead of permitting him to use a guide dog or cane. In response to OCR’s decision, the school relented, but Ehlena’s parents moved her to a different school out of fear that school officials would resent OCR’s decision and make school difficult. They found a different school which welcomed both Ehlena and Wonder.

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Special Needs Trust Fairness Act

The Special Needs Trust Fairness Act (Section 5007 of the 21st Century Cures Act) was signed by President Obama on February 13, 2016. The Act changes a provision relating to self-settled special needs trusts that formerly prevented the disabled individual from establish his or her own special needs trust. Prior to February 13, 2016, the law provided that a self-settled trust could only be established by a parent, grandparent, guardian or court. Special needs advocacy groups found the old law offensive because it seemed to presume that a disabled individual lacked capacity to make his or her own decisions.

The old rule created problems beyond the inconvenience (or lack of dignity) associated with requiring that a parent, grandparent, guardian or court establish the trust. In Draper v. Colvin, No. 13-2757 (8th Cir. 2015), the parents of a special needs child asked a court to approve establishment of a special needs trust. However, after the court approved the trust, the parents used their power of attorney to transfer the child's assets into the trust. The Social Security Administration took the position that the initial funding of the trust with a power was part of the act of establishing the trust, and since an agent under a power of attorney is acting for his or her principal, the disabled child actually established the trust. The result was the trust was ineffective. The Special Needs Trust Fairness Act eliminates this type of issue.

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Special Needs Roundtable

We are pleased to announce that the Elder Law Practice of David L. McGuffey will host a Special Needs Roundtable in Dalton, Georgia on July 29, 2016. Confirmed speakers and panelists include Key Note Speaker Hal Wright (Certified Financial Planner and Author of "The Complete Guide to Creating a Special Needs Life Plan," available on Amazon.com), Howie Krooks (former President of the National Academy of Elder Law Attorneys, Certified Elder Law Attorney, and member of NAELA's Council of Advanced Practitioners), Patricia E. Kefalas Dudek (member of NAELA's Council of Advanced Practitioners), David L. McGuffey (Certified Elder Law Attorney, and member of NAELA's Council of Advanced Practitioners), William H. Overman (HMS, Director of Trust Services, and member of NAELA's Council of Advanced Practitioners), Fred Phillips, CPA (HMS Trust Services), and Bill Frazier (Senior Vice President, SunTrust Private Wealth Management). Additional panel members are expected. This Roundtable will be held at Stage 123 in Dalton, Georgia. The subject of the roundtable focuses on the question "I've funded my special needs trust, now what?" This will not be your typical "talking heads" program. Instead, it will be a roll up your sleeves and dig in program with audience participation.

Those who should attend are attorneys, accountants, bankers, insurance agents, financial planners and other professionals who work with the special needs community. Registration will open soon and seating is limited. The registration fee is expected to be $200, which will cover 6 hours of programing. If you require continuing education credit, a certificate of attendance will be provided, but you are responsible for submitting your own continuing education request and paying any associated fees. Inquiries may be sent to This email address is being protected from spambots. You need JavaScript enabled to view it..

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A Tale of Two Trusts

Two recent cases make it clear that, even when you are working with special needs trusts, there are reasons for caution.

In the first case, Indiana resident Timothy Todd filed a lawsuit claiming the trustee managing his special needs trust was charging thousands for unnecessary and inappropriate fees. His suit, which seeks class status, claims the National Foundation for Special Needs Integrity, which does business as Special Needs Integrity, violated its fiduciary duty by taking millions of dollars various trusts to pay unjustified legal and other fees. To read more about it, see http://www.indystar.com/story/news/2015/11/16/nonprofit-accused-taking-millions/75886746/.

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