THE CP LAWYER Types of Legal Services You and Your Child May Require
The role of lawyers and the benefit of legal services in society are vast. Lawyers are students of law, advocating for justice. They are licensed to practice their trade in the court of law. They are ethically bound to represent the interests of the client, within legal guidelines. They are sought to provide professional advice on legal matters that are often confusing or too technical to understand. They research, guide, counsel, litigate and advocate rights under the law.
Lawyers provide a variety of valuable services, in and outside a court of law. They research and interpret the law, offer legal counsel, provide legal support, draft legal documents, and file legal registrations. When litigation is required, they prosecute, gather evidence, prepare for trial, argue, cross examine, and defend. Some lawyers are called upon to manage assets or procure and protect intellectual property.
In general, a lawyer’s services are required when something is at stake or when an injustice has occurred, protections are needed, defense is mandated or when legal clarifications are required. Many lawyers concentrate in an aspect or concentrated area of law. Some focus in family law, employment law, estate planning, social security, special education, medical malpractice, bankruptcy, tax and patent law, just to name a few of these more focused areas of practice.
Four Types of Alternative Dispute Resolution
Laws are created to provide order and guidance within established societal boundaries. Occasionally disputes occur or rights require protection. Litigation can sometimes be avoided through advice and counsel in some cases or through a letter drafted by a lawyer. Other times, lawyers from both sides can negotiate a resolution. Even when the negotiation process is unsuccessful, there are avenues that can be explored before filing suit.
Four avenues to resolve disputes out-of-court are:
- Demand letter
These are detailed in the sidebar story, “Resolving Disputes Out-of-Court,” located to the right of this story, on this page.
Two Types of Litigation
Litigation may be required when dispute resolution is unsuccessful. There are two categories of litigation:
- Civil litigation
- Criminal litigation
These are detailed in the sidebar story, “Resolving Disputes with Litigation,” located to the right of this story, and on this page.
Most legal services and litigation required by a family of a child with cerebral palsy will likely fall under the category of civil, not criminal, litigation.
Legal Services You May Require
Parents of a child with cerebral palsy may benefit from legal counsel or representation in several situations over the lifetime of their child. . They will most likely be civil in nature, unless a crime was committed in which they may be involved in criminal litigation. These situations may be due to, or unrelated to, the child’s condition. Circumstances include adoption, custody, guardianship, special education advocacy, social security, bankruptcy, discrimination, medical malpractice and estate planning, just to name a few.
- Bankruptcy law
- Civil rights law
- Consumer law
- Education law
- Elder law
- Family law
- Financial services law
- Health care law
- Insurance law
- Labor and employment law
- Negligence law
- Real estate law
- Social security law
- Taxation law
- Trusts, estate, wills and probate law
These are detailed below.
When caring for a child with cerebral palsy or living with cerebral palsy, many additional expenses will be incurred. If expenses build to the extent they are deemed too much to financially bear, a person can file for bankruptcy or a lender can pursue foreclosure in an effort to resolve debt disputes, divide assets amongst creditors, and free those in debt from accumulated financial obligations. In bankruptcy proceedings, the individual may be required to liquidate his or her assets (a process of collecting all non-exempt property which is then sold with proceeds distributed amongst creditors), or enter an adjustment plan (a process in which the value of debts are adjusted and payments of those adjusted debts are paid over a specified period of time). Lenders pursue equitable default actions, called foreclosure, against borrowers to secure title to property for nonpayment or breach of mortgage. The property is then put up for public sale or auction. If the sale does not cover the full debt owed, the borrower may face a deficiency judgment for the unpaid balance.
- Civil Bankruptcy (Chapter 7, 11, 12, and 13)
Civil rights are freedoms and privileges granted to citizens by the government through the U.S. Constitution and within state and federal statutes. Civil rights include freedom of speech, press, assembly and religion, and also include freedom from involuntary servitude. Rights are also granted, including the right to equality in public places, to vote, to bear arms, to due process of the law, and to equal employment opportunity. Statutes prohibit discrimination on the basis of color, disability, familial status, race, sex and religion.
Of particular interest to those with cerebral palsy is the disability rights law. Disability rights provide opportunities of equal access in air travel, housing, accessibility, accommodations, education, employment, telecommunications and voting, and other federally funded or conducted programs.
The areas of law a civil rights lawyer may concentrate in include:
- Credit rights
- Disability rights
- Education rights
- Federally funded and conducted program rights
- Health care rights
- Housing rights
- Labor rights
- Local, state and federal government programs
- Public accommodation rights
- Public transportation
- Voting rights
- Disability rights:
- Air Carrier Access Act
- Americans with Disabilities Act of 1990
- Architectural Barriers Act
- Civil Rights of Institutionalized Persons Act Fair Housing Act of 1988
- Individuals with Disabilities Education Act of 1975
- National Voter Registration Act of 1993
- Rehabilitation Act (Section 501, 503, 504 and 508)
- Telecommunications Act of 1996
- Voting Accessibility for the Elderly and Handicapped Act of 1984
Consumer laws protect individuals who purchase goods or services. The goal of all consumer law is to protect individuals from unsafe products and unfair, deceptive practices. Consumer law also regulates credit practices, warranties, and service contracts. A common consumer law is the Lemon Law, which protects individuals who buy a product that does not perform to acceptable standards. Other laws protect people from product claims that may mislead a consumer into thinking a product does something it does not.
Areas of consumer law include:
- Collection agency harassment
- Credit issues
- Credit reports
- Lemon laws
- Product claims
- Service contracts
- Warranty law
The right to a free education irrespective of age, disability, gender, ethnicity, nationality, race, religion, political preference, or religion is a recognized human right under Article 26 of Universal Declaration of Human Rights (UDHR), adopted by the General Assembly of the United Nations on December 10, 1948. This right was enacted to promote the common standard of achievement for all people of all nations to develop human personality and knowledge, and strengthen the respect for human rights and fundamental freedoms, worldwide. Education provides, among other things, the mental, physical and social development of an individual. The right to a free education is furthered in the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the United Nations on December 16, 1966.
In these multilateral treaties, governments are urged to pass social, cultural, spiritual, and philosophical values of the community along through education. Governments are urged to respect, protect and fulfill an individual’s right to an education that is:
- Available – Free, funded by the government and made available to all, including concepts of active recruitment, proper training, appropriate retention, qualified staff, and proper infrastructure and facilities.
- Accessible – Equal access to all children for a publicly funded education with no forms of discrimination, segregation, or access denial. Access should be affordable and within a reasonable distance, otherwise transportation is to be provided.
- Acceptable – Education that is non-discriminatory, relevant, culturally appropriate, objective, unbiased with health and safety standards in place
- Adaptable – Education is to be flexible to societal needs, adaptable to disabilities, and accommodating to special needs.
In the United States, parents play an important role in advocating for their child’s civil and educational rights. Awareness and familiarity with worldwide initiatives, federal legislation and legal rights equips parents with the ability to ensure that their child’s education needs are safeguarded.
In addition, federal regulations, legislation, and policy initiatives continually transform the educational rights of students with disabilities and special learning needs. The goal is to provide every child, regardless of gift, disability or special learning needs, with an equal opportunity for a public education that optimizes his or her learning potential. For instance, the Individuals with Disabilities Improvement Act (IDEA) of 2004, a revision of IDEA of 1997, helps define special education as “specially designed instruction, at no cost to parents, to meet the needs of a child with a disability” and includes “instruction conducted in the classroom, in the home, in hospitals, in institutions, and in other settings.”
The federal government identified thirteen (13) special needs categories:
- Hearing impairment
- Mental retardation
- Multiple disabilities
- Orthopedic impairment
- Other health impairment
- Serious emotional disturbance
- Specific learning disability
- Speech or language impairment
- Traumatic brain injury
- Visual impairment
Specific learning disabilities are further defined as one or more “of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations,” including perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia.
Children identified as gifted in one of the following three areas, are also provided for under IDEA:
- Cognitively gifted
- Athletically gifted
- Artistically gifted
Parents work with the local school system to have their child evaluated through an Individualized Education Plan (IEP). The IEP identifies additional services and devices that may be required in order to provide equal access to a publicly-funded education.
The school system will try to optimize the child’s learning experience in the least restrictive environment. This may require instruction in classrooms, at home, in institutions, at separate school facilities or in health care facilities. It may also involve adaptive equipment, assistive technologies, communication devices, and specialized services, as needed.
Through the years, laws have shaped understanding, awareness, and access to individual education rights and special education. Some significant legislation that helped to shape and protect children’s education rights, include:
- The Rehabilitation Act of 1973
- Education for the Handicapped Act
- Americans with Disabilities Act (ADA) of 1990
- The Individuals with Disabilities Education Act (IDEA) of 1997
- No Child Left Behind Act of 2001
- American Recovery & Reinvestment Act (ARRA) of 2009
- Elementary and Secondary Education Act (ESEA)
A lawyer concentrating in education law may represent the government, the school system, the teachers, or the student in matters such as statutory compliance, civil rights, contract disputes, disciplinary proceedings, discrimination, due process, immunity protections, injury and liability, special education disputes, staff and student relations, employer relations and student/teacher conduct and privacy.
Education law is often broken down into two distinct areas:
- School law
- Special education law
Future planning is required as an individual with special needs, as aging parents and caregivers may be unable to care for their children, or they may pre-decease their children. . More specifically, those with primary responsibility to care for a disabled or impaired child have added legal concerns about how their child will age and be provided for if they, as the primary caretaker or guardian, are no longer able to oversee the child’s welfare. Estate planning, health care planning, housing advice, financial considerations and rights advocacy fall under the category of elder law.
Care of the elderly is a complicated issue involving the emotions associated with illness, loss of personal freedom and providing for the best and most affordable housing, health care, insurance, and financial options available. The focus is on available, affordable, convenient, and hassle-free options. The law respects a senior’s autonomy to determine his or her own affairs for as long as the capacity exists. Lawyers concentrating in elder law typically strive to simplify choices and ease the burden and confusion seniors may have when planning for the future. Lawyers take steps to legally protect a senior’s wishes and preferences.
The government has traditionally offered two main housing options to aging seniors: federally funded housing choices through Section 202 housing, and Section 8 housing certificates. The government also offers federal housing initiatives, although admittedly there is a shortage of viable residential options for frail seniors with low-to-moderate income levels. Recently, the Department of Housing and Urban Development has experienced a decrease in funding, while the number of older citizens with changing needs has increased.
The government’s current focus is on accommodating physically supportive environments with designs to adapt and modify existing homes to meet the senior’s changing needs. Meanwhile, Medicaid provides nursing home incentives to those that qualify and there has been a growth in private sector assisted living, which offers a less restrictive residential alternative to nursing homes.
The emphasis has been and continues to be in accommodating preferences, protecting rights, and insuring quality of life provisions.
Areas of elder law include:
- Estate planning – provides guidance on estate transfers, gift granting, will and trust preparation, power of attorney authorizations, and asset inventories, as well as assisting in the designation of guardians, executors and benefactors. Elder lawyers will assist with employment and retirement advice.
- Health care planning – provides help with simplifying health care options and easing the decision-making burden when deciphering health care plans, nursing care, personal care, advance directives, insurance packages, and Medicare/Medicaid choices.
- Housing and real estate planning – provides advice and measures to secure aging in place, or for planning purposes when seeking counsel on independent, semi-dependent, or dependent housing options that are better suited to meet changing needs. As seniors age they will likely develop physical or cognitive changes that require accommodation. Neighborhoods may become unsafe. Living quarters may lack maintenance and repair. Home modifications and adaptations can be secured to increase independence, prevent accidents, decrease burdens, and increase convenience. A change in housing from ownership to rental; from assisted living to nursing home; or from unsafe neighborhood to secure settings can be made.
- Financial planning – provides advice to plan for and allocate finances in order to live comfortably, with proper care, and in case of emergencies. Financial planning can involve bonds, stocks, mutual funds, certificates of deposit and money market accounts, as well as retirement plans, 401(k)’ s and investment allocation. Durable Power of Attorney considerations provide directives while living, but in case the person becomes unable to make care decisions on their own. . Trusts, whether living or testamentary, allocate assets and keep personal matters private. Long-term care insurance may be useful if a person lacks assistance from others or if a person prefers not to depend upon his or her children, spouse, partner or next of kin. Financial planning can also protect against the theft or misuse of senior funds.
- Elder abuse – Seniors are vulnerable to abuse. Abuse may involve abandonment, exploitation, neglect by others, or self-neglect. Others may suspect when a senior is physically, psychologically, financially, or sexually abused. Abuse can happen in a variety of settings, including at home, in public, in care facilities, at hospitals, or in nursing care. Lawyers practicing elder law are sometimes sought to assist with measures that recognize, report, investigate, treat, and protect seniors from abuse.
Family law is a concentrated area of law which spans domestic relations (usually between husband and wife, or partners) and juvenile law (primarily between parents and children; children and legal guardians; or children’s rights). Lawyers concentrating in family law focus many times on either creating relationships or ending them. They also handle disputes among families.
In creating personal relationships, a lawyer may help parties file legally binding relationships, as in adoptions, custody, guardianships, premarital agreements, marriages and domestic partnerships. In ending personal relationships, a lawyer may secure separation, divorce, alimony, custody, visitation rights, and child support arrangements. Occasionally, they resolve family disputes, including temporary restraining orders or protection orders as a result of domestic violence. Paternity suits are handled through family law.
Areas of family law include:
- Child custody
- Child support
- Domestic violence
- Legal or marital separation agreements
- Premarital or prenuptial agreements
- Spousal support
- Visitation rights
Financial Services Law
Some refer to financial service law as “wealth management.” Many believe the term is misleading. Everyone has life dreams and an unknown journey ahead. Obstacles, roadblocks, and opportunities exist. Financial services law is largely about planning for the future and all of the contingencies along the way so the family can lead the best life with resources at their disposal. Financial service lawyers claim the services they offer services are just as valuable to those with large assets, as those with limited assets. In fact, for those on a very strict budget, strategic investing, spending and saving may prove invaluable.
For those that have a child with cerebral palsy, there are added financial concerns. A child with cerebral palsy is likely to require medical services, including medical appointments, treatment protocols, therapy sessions, surgeries, medications, and complementary care. Some of these will be provided through the school systems’ Individualized Education Plan (IEP) process. Expenses for home care, adaptive equipment, assistive technologies, and home or automobile modifications may be required, as well. Employer benefits, government benefits, and private insurance may assist. Estate planning is beneficial to secure the best path to care for the child during his or her lifespan and in the event something should happen to those in charge of caretaking.
Financial concerns can seem overwhelming, but wouldn’t they feel better if they were ‘manageable’ instead? A financial service advisor, especially those with experience in special needs planning, can help plan, implement, apply for, secure and allocate funds from governmental sources, community resources, charities, employers, insurance, and educational opportunities. They can document wishes and preferences; guard ability to maintain public benefit eligibility through special needs trusts and financial planning; and secure legal power to make decisions for the child through guardianship and conservatorships. They can even appropriately allocate Lifetime Benefits, if qualified.
Financial services law is concerned with securing an individual’s future, with all its roadblocks, emergencies and opportunities. To do so, they may analyze the family’s financial situation and suggest some available financial investments. These may include certificate of deposit, stocks, bonds, securities, investments, insurance protection, and real estate ventures. They may review wills, trusts, power of attorney, beneficiaries, advance directives and designated executors. They can advise on loans, finances, asset protection, collateral, liability and promissory notes.
Not all of life’s journey can be ideally planned, so when sudden emergencies or catastrophes inevitably occur, financial service lawyers become trusted advisors to help families face and meet continuing needs.
- Financial planning
Health Care Law
Health insurance is regulated at the federal and state levels. Health insurance is an important asset for those with special needs, impairment, and disability. Health insurance coverage is provided through governmental agencies, the private sector, and employer based plans. Health insurance may assist with coverage for medical services, rehabilitation, emergencies, hospitalizations, office visits, illness, dental care, vision, assistive technology, and more. Every health insurance plan is different, and ever changing. It’s critical to have an understanding the plan, what it covers, and ensuring that benefits are received when needed under the plan’s provisions.
Occasionally, legal services are required to decipher, clarify or secure rights with regards to benefits, claim administration, plan coordination, pre-existing conditions, dispute resolution, discriminatory practices, medical necessity issues, medical trial authorizations, or other complicated insurance issues. Lawyers can also assist when coverage is denied, reduced, or terminated.
Medicare and Medicaid government insurance programs provide valuable services for those with special needs, and others. Both provide differing benefit programs to eligible individuals. Insurance programs can seem complicated or confusing. Applicants must understand the plans, enroll at the appropriate times, qualify, and follow the guidelines of their programs. A lawyer focusing on health care law can assist with these matters. Some common legal issues include eligibility, denial of eligibility, reduction of benefits, suspension of benefits, termination of benefits, claim review, and regulation interpretation.
Lawyers concentrating in health care often work for the health care providers. They assist the hospitals, healthcare facilities, health maintenance organizations and the health care practitioners with their legal issues. This includes accreditation, licensing, program certifications, governmental rules and regulations, compliance issues, patient complaints, quality standards, and risk management. When seeking a lawyer to assist with health care issues, first ask if they provide services to individuals with health care concerns.
Areas of health care law include:
- Health insurance
Items of value, such as a car, boat, health, college education, are worth protecting from harm, accidents, and crime. These are usually items not easily replaced if they were somehow taken away. Insurance is a way to protect property, assets and ability to provide for the future. Having insurance provides protection and peace of mind.
Insurance providers calculate the risk involved in insuring valuable items. They will provide insurance benefits to either replace the item, or provide an agreed upon value if the item is lost or stolen. Insurance companies evaluate the risk involved in insuring the item, the life of the item, the value of the item, and the condition of the item to determine insurance premiums.
In some situations, insurance is considered mandatory and is highly regulated by the government. For example, if a house is purchased with a mortgage loan, the mortgage company will require homeowners’ insurance. Those who drive a vehicle benefit by automobile insurance in case of injury, property damage, or death. Accident, disability, health and life insurance is not mandatory, but may be highly recommended. Term insurance is sometimes purchased for a specific purpose, like burial or college assistance in case of an untimely death. There is always the possibility of some being overly insured.
Lawyers concentrating in insurance law can assist with policy provisions, coverage negotiations or disputes, confidentiality matters, claims processing, benefit pay-outs, and disclosure requirements.
Areas of insurance law include:
- Accident insurance
- Disability insurance
- Health insurance
- Homeowners insurance
- Life insurance
- Term insurance
Labor and Employment Law
Labor and employment law encompasses the legal rights of, and restrictions on, employees, employers and labor unions. It is a highly regulated industry. There are many rules, industry standards, administrative rulings, and precedents.
Lawyers concentrating in labor and employment are concerned with many aspects of employer/employee relations, including benefit administration, employment practices, discrimination, harassment, safety and health, worker’s compensation, and fair labor practices.
For those with special needs, these lawyers can advise on employment opportunities, disability rights, civil rights, workforce accommodation, Americans with Disabilities Act (ADA) provisions, benefit administration, and vocational training opportunities, and more.
Areas of employment and labor law include:
- Benefit program administration
- Contract negotiations
- Disability accommodation
- Employment contracts
- Human resources
- Occupational Safety and Health Administration (OSHA)
- Pension administration
- Risk management
- Unfair labor practices
- Union negotiations
- Unlawful termination
- Wage disputes
- Worker’s compensation
- Workforce accommodation
- Workforce injury and safety
- Wrongful termination
Negligence Law –
Medical Malpractice and Birth Injury
Parents of a child recently diagnosed with cerebral palsy become concerned with what caused the child’s impairment or disability. There are a few types of concentrated areas of legal services, namely medical malpractice and birth injury, specifically dedicated to assisting parents in learning more about the circumstances surrounding the cause of the child’s cerebral palsy, and discovering whether harm could have been avoided.
Although cause may not be determined in all cases, from a legal perspective it can be beneficial for the family of a child with cerebral palsy to seek a Medical Legal Review of the circumstances surrounding the cause of the child’s condition. If it can be determined that the cause of a child’s cerebral palsy is due to birth injury and medical malpractice, the child may be entitled to compensation for his or her injury through the litigation process.
In particular, medical malpractice attorneys are looking for evidence of:
- Disclosure breach – Practitioners must present patients with available, pertinent and relevant information in order for the patient to be properly informed before consenting to treatment. Disclosure breach occurs if the patient agrees to a decision without being informed of all available relevant information. Disclosure breach may include failure to obtain informed consent, disclose treatment, disclose risk, disclose alternative treatment or maintain privacy.
- Diagnosis error – Failing to properly diagnose the condition in an appropriate timeframe under some circumstances can be fatal, or cause severe injury to the patient. Diagnosis errors account for some of the medical malpractice industries’ largest awards, or judgments. Diagnosis error may include failure to diagnose (by not conducting tests, not diagnosing pregnancy, or diagnose complicated pregnancy); harmful delay in diagnosis (avoidable or denial or tests or referral); and misdiagnosis (misinterpretation of tests and monitor reads or failure to properly calculate gestational age).
- Improper treatment – Mistakes that are made during a medical procedure will often fall into the improper treatment category, especially if the errors occurred during commonly performed procedures. Errors must cause harm, and it must be shown that the harm was a result of breach of duty. Mistakes during very difficult circumstances may not qualify, as the procedure may be accepted under certain extenuating circumstances. Improper treatment may also include failure to assess or properly respond, and delayed or denied treatment in various situations.
- Medication, prescription or pharmacy error – Pharmacy errors relate to mistakes made by pharmacy staff, including pharmacists. They can include dispensing medicine in incorrect doses, mislabeling prescriptions, and providing the wrong medication altogether. Pharmacists may also err when accounting for potential drug interactions and allergies.
- Birth injury – Birth injury negligence or malpractice occurs when an infant suffers harm, impairment or injury around the time of delivery due to physician or hospital error. The error can be intentional or accidental. Many birth injuries cause damage and result in long-lasting or permanent impairment, disability, or even death. Asphyxia – when the newborn’s brain is deprived of oxygen – is one such condition and occurs frequently. Asphyxia can cause serious complications, including cerebral palsy. The brain can sustain similar injury as a result of infection, physical damage or trauma to the infant during delivery.
- Wrongful birth or wrongful life – In certain states, wrongful birth involves circumstances where parents can pursue litigation against a practitioner due to financial and emotional distress associated with giving birth to a child with disability after a sterilization procedure was not properly performed. This is also the case if a pregnancy was not properly terminated when a recognizable condition, such as Down’s syndrome was discovered during pregnancy. In other situations, the couple was not properly informed of their risk of having a child with a disability given their particular circumstances, or genetic factors increasing the likelihood their child would be impacted by parental genetics. In these instances, it must be proven that the parents would have terminated the pregnancy in timely fashion if informed of the circumstances.
- System failure – Complaints filed against medical facilities or hospitals may fall under the category of system failures, or administrative errors. In these situations, an employee of the facility committed a negligent act and the complaint maintains that the facility is liable for the actions of its employee. In some situations, the facility did not have policies or procedures in place to address or prevent the problem and is therefore solely responsible for the failure. In other situations, the facility management did not adequately or appropriately hire, train, or manage an employee properly.
- Equipment failure – Failure to maintain equipment, service agreements, and maintenance of equipment used on, or for the benefit of patients, can lead to unnecessary harm or injury. Equipment failure may include failure to properly maintain equipment, failure to certify equipment safety, and failure to establish, maintain and follow safety and security standards.
The factors that assist in determining whether negligence or malpractice occurred include:
- Operational compliance
- Inherent danger
- Extraordinary circumstances
- Industry guidelines
- Professional standards
There are time limitations in place, called Statutes of Limitation, which specify the so-called time, “window of opportunity” in which a family can legally pursue litigation; each state is different. Not every child will qualify for Lifetime Benefits, but for those that do, Lifetime Benefits can be a life-altering, welcome relief.
Does Your Child Qualify?
If your child’s impairment is due to birth injury or medical malpractice, the law permits families, through the litigation process, to pursue Lifetime Benefits in the form of monetary awards. Monetary awards – compensation for injury incurred – can then be used to fund expenses, such as the child’s medical treatment, therapies, adaptive equipment, medications, communication devices and home or automobile modifications.
Over the course of the child’s life, the cost of cerebral palsy is significant. Lifetime Benefits are awarded in recognition of the child’s cerebral palsy and the resulting financial burden on the family – factors that would not exist without the medical malpractice and/or the child’s brain injury. For those cases that qualify, the benefits can greatly assist the family in obtaining treatments and services their child will require over his/her lifetime.
To learn more about a Medical Legal Review or the process of pursuing Lifetime Benefits, call to request a Medical Legal Review today. Ken Stern, his law firm, Stern Law Group, PLLC, and/or their affiliated law firms provide the opportunity to pursue the benefits a child needs and his or her family deserves.
Personal Injury Law
Personal injury law encompasses legal advice and representation for claims of injury, civil wrongs, or negligence against a person, company, government agency, or party that is alleged to have caused physical or psychological harm to an individual, group, property, reputation, or rights. Personal injury claims usually rely on tort law and seek monetary damages as compensation. Proof of damages is required to receive compensation. Legally, medical malpractice is considered a form of personal injury law.
Tort law is the backbone of personal injury claims. Tort law assumes a breach of civil duty to a person has occurred. Tort is a combination of common laws created at the state level through judges and statutory law created by legislatures. There are three main categories of tort:
- Intentional tort – are torts where it is reasonable to expect the person causing injury should have known their actions, or inactions, would result in harm. Examples include assault, battery, false imprisonment and fraud.
- Negligent tort – is when the person causing harm was unreasonably unsafe. Examples include medical malpractice and workforce accidents.
- Strict liability tort – is when a particular action causes damage and does not rely on the person’s efforts to be careful. An example is product liability and warranty issues.
Tort law assumes an injury has occurred. Injuries can include economic loss, emotional damage, or damage to reputation. The injury may be the result of represent a violation of a person’s privacy, property, personal safety, or constitutional rights. A tort may include assault, battery, emotional distress, false imprisonment, and fraud. In some cases, tort law involves nuisance or defamation of character.
In order to win a personal injury claim, the person suing must prove intent, negligence, or strict liability. They must prove that the actions, or inaction, of the defendant caused harm. They must prove the defendant was solely, or in some ways partially responsible. And, they must prove resulting damages occurred which are able to be compensated under the law.
A defendant will try to prove they were not responsible for the harm; they acted responsibly and reasonably under the circumstances and within his or her scope; that consent was properly obtained; the plaintiff was partially responsible; or that harm is not worthy of compensation.
Areas of personal injury law include:
- Automobile accidents
- Birth defects
- Birth injury
- Brain damage
- Brain injury
- Cerebral palsy
- Defective products
- Dental malpractice
- Head and spinal injuries
- Lead paint poisoning
- Medical mistakes
- Medical malpractice
- Motorcycle accidents
- Nursing home abuse and neglect
- Professional malpractice
- Sexual abuse
- Slip and fall
- Toxic chemical exposure
- Traumatic brain injury
- Wrongful death
Real Estate Law
Much has been advanced over the last four decades to accommodate housing opportunities of those with special needs. The goal is to provide accessible, safe, secure, appropriate, and affordable housing that allows the individual to live as independently as possible. The goal is to make communities more livable for those who have impairment, disability, are aging with restrictions, or are temporarily disabled by injury or surgery. To do this, requires housing to be strategically placed within communities supportive of those with special needs.
Main objectives for special needs housing options include:
- Safe neighborhoods to travel independently within
- Close proximity to shopping, health care facilities, schools, workplace, leisure activities and transportation options
- Ability to maneuver and function within the building’s construction
- Access to accessible public transportation
- Ability to afford
- Adequate housing options to meet the current and anticipated demands
- Education on the rights of those with special needs and enforcement when appropriate
Based on individual needs, housing preferences may include assisted living, group homes, care services, or modified housing. Often those with special needs live on fixed incomes. In today’s tough economic times, those with special needs are vulnerable to homelessness. When circumstances change, and as individuals with special needs age, it is helpful to understand the laws, options, and assistance that may be available to meet his or her needs.
Real estate lawyers typically assist individuals with housing related needs. This usually includes document review of real estate sale and purchase, rental agreements, property transfers, or homeowner association agreements. They are concerned with the rights, liabilities, responsibilities, and terms and conditions clients have to the property they own or may purchase, rent or lease. At times, the real estate lawyers will mediate or litigate landlord and tenant disputes.
A real estate lawyer concentrating in special needs offers is aware of the civil rights, fair housing regulations, and disability guidelines which protect the rights of those with injury, impairment or disability to have access to fair housing opportunities. They are aware of the rights granted by the courts, including those covered under:
- Architectural Barriers Act of 1968
- Civil Rights Act of 1968 – Title VIII
- Fair Housing Act 1968
- Rehabilitation Act of 1973
- Fair Housing Amendments Acts of 1989
- Americans with Disabilities Act of 1990
- Uniform Federal Accessibility Standards (UFAS)
Since 1968, the Civil Rights Act and the Fair Housing Act made it illegal to discriminate on the basis of disability for housing sales or rentals. These regulations made it illegal for landlords to use differing applications when applying for housing. The Fair Housing Act establishes design and construction guidelines, such as:
- The right to accessible entrance ways, entrance routes, doors and hallways, and public and common areas
- The benefit of wide hallways and doorways to accommodate wheelchairs, particularly in new construction
- The right to switches, controls, and bathroom grab bar support to accommodate those with special needs
- The responsibility of the landlord or property manager to provide reasonable accommodations in policies, practices, rules and services provided to all tenants, including those with special needs
- The ability for tenants with special needs to make reasonable modifications to the dwellings that accommodate impairment or disability at the tenant’s own expense as long as they return property to original state upon leaving.
Real estate lawyers work with government agencies and community leaders to provide housing options for those with special needs. They counsel clients on their rights and options. They connect clients with community resources, funding opportunities, tax advantages, and government benefits. Some of the key organizations they work alongside are:
- American National Standards Institute (ANSI)
- Center for Universal Design
- Consumer Products Safety Commission
- Federal Housing Administration (FHA) Programs
- Internal Revenue Service (IRS)
- National Council on Disability (NCD)
- National Council on Independent Living Center
- National Institute of Disability and Rehabilitation Research – U.S. Dept. of Education
- National Institutes of Health (NIH) Office of Research Facilities – Universal Design & Accessibility for People with Disabilities
- National Resource Center on Supportive Housing and Home Modification
- Rehabilitation Engineering and Research Center (RERC) on Universal Design
- U.S. Housing and Urban Development (HUD) Programs
Real estate lawyers with the special needs knowledge and contacts can more easily connect their clients with a myriad of resources to meet your circumstances. Areas of assistance include:
Counseling and Counsel
- Fair Housing Initiatives Program’s Education and Outreach Initiative
- Housing Counseling Assistance Programs (HCAP)
- Projects for Assistance in Transition from Homelessness (PATH)
- Accessibility options
- American’s with Disability Act (ADA)
- Architectural Barriers Act Enforcement
- Equal opportunity housing
- Fair Housing Initiatives Program (FHIP)
- McKinney-Vento Homeless Assistance Act
- Equal opportunity housing
- Fair Housing Initiatives Program (FHIP) Administrative Enforcement Initiative Program
- Fair Housing Initiatives Program (FHIP) Private Enforcement Initiative
- Non-discrimination in federally-assisted and conducted programs on the basis of disability
- Non-discrimination in federally-assisted programs
Emergency Shelter and Shelter Options
- Directory of Homeless and Housing Advocacy Coalitions
- Low rent apartment search
- National Housing Database for the Homeless and Low-Income People
- National Housing Locator System (NHLS)
Financial Assistance for Housing
- Assistive Technology Funding and Systems Change Project – United Cerebral Palsy Associations
- Emergency financial assistance
- Energy Assistance (LIHEAP and WAP)
- Fannie Mae loans for individuals with special needs
- Home modification loans for homeowners
- Housing and Community Development Funds
- Housing Choice Voucher Program ( Section 8 )
- Housing loans
- Housing vouchers
- Housing repair loans and grants
- Housing tax credits
- Individuals and Households Program (IHP) housing assistance
- Internal Revenue Service (IRS) home modifications deduction for those with disabilities
- Rent relief
- SSI/SSDI Outreach, Access & Recovery Initiative (SOAR)
- Services in Supportive Housing (SSH)
- Shelter Plus Care Program
- Temporary Assistance to Needy Families (TANF)
Home Modification Options
- Accessibility guidelines
- Americans with Disabilities Act Accessibility Guidelines (ADAAG)
- Architectural Barriers Act enforcement
- Center for Universal Design guidelines
- Housing Improvement Program
- National Directory of Home Modifications and Repair Programs
- Property improvement loan insurance
- HUD Homes for Sale Program
- Hope for Homeowners Program
- Rural rental assistance
- Single Room Occupancy (SRO) projects
- Federal Housing Administration (FHA) programs
- National Housing Locator System (NHLS)
- U.S. Housing and Urban Development (HUD) programs
- HUD Public Housing Program
- Adjustable rate mortgage insurance
- Basic FHA Insured Home Mortgage
- Combination mortgage insurance for manufactured home and lot
- Manufactured Home Loan Insurance
- Rural housing loans
- Mortgage Insurance: Purchase of a Cooperative Housing Unit
- Rehabilitation mortgage insurance
- Guide to Federal Homeless Assistance Programs
- Homelessness Resource Center
- Public Health Service Act – Section 520A
- Toolkit for ending long-term homelessness
Real estate lawyers advise, counsel, and litigate on general matters of property and housing. With an aging population and increasing numbers of those with impairment or disability, government agencies have been formulating ways in which to newly construct and to modify existing facilities to meet the housing needs of this market.
Although some real estate lawyers concentrate in special needs, not all do. Some of the nuances of real estate law include:
- Homeowners’ association law
- Landlord and tenant law
- Real estate law with special needs emphasis
- Residential real estate
Social Security Law
Prior to 1935, local and state governments were struggling to fairly and adequately provide for citizens as they aged or experience undue hardships. This was exacerbated by widespread suffering during the Great Depression. On August 15,1935 the government enacted the Social Security Act to provide federal funds to qualifying seniors, the blind, the unemployed workers, dependent children, and children with disability. The act also authorized vocational training and family health programs. Social security benefits are funded by a standard deduction in wage-earners pay.
Social security law is based on the premise that all able-bodied, working adults support their future welfare by contributing a portion of his or her earned wages to Social Security. Social Security benefits help to secure a future income if the individual should become temporarily or permanently disabled, unemployed, or beyond working age. The Social Security Act also recognizes that some individuals are subjected to undue and debilitating hardships, and may require a level of assistance above that which they have paid into the system.
Since 1935, Social Security has expanded its benefit program to include:
- Medical assistance
- Social Security Disability (SSD)
- Social Security Disability Insurance (SSDI)
- Supplemental Security Income (SSI)
- Survivor’s benefits
- Temporary assistance
Benefits provided by the Social Security Administration can be extremely beneficial to an individual with cerebral palsy. Depending on the level of impairment, the child can experience medical treatments, surgeries, medications, therapies, and more. They are likely to require adaptive equipment or assistive technologies. Some require minimal assistance with daily activities while others are considered total care. Cerebral palsy is considered a recognized financial burden to a family’s financial situation. Depending upon a family’s unique circumstances, there are likely government and community benefit programs that can assist.
Social security lawyers can assist a family navigate through the often confusing array of applications, deadlines, and benefit specifics. They can put the family in touch with the resources that the family needs and the child with cerebral palsy deserves.
Some ways in which a lawyer concentrating in social security law can assist include:
- Evaluation of eligibility
- Application process assistance
- Deciphering benefit determinations
- Accommodating change in eligibility status
- Disputing benefit disbursements
- Overpayment recovery
- Combating benefit reduction
- Assistance with terminated benefit recovery
- Representation at administrative hearings
- Dispute resolution
- Benefit coordination
To qualify for Social Security, the application process evaluates income levels, family resources, medical conditions, and functionality of the child. Once a person applies for benefits it can take 3-5 months for the agency to determine whether the child will qualify. If they qualify for benefits, they may be required to undergo benefit evaluations on a periodic basis to maintain continuing benefit status.
If a child does not qualify, families are able to re-apply for consideration, particularly if they have a change in circumstances. Once a child on Social Security Disability turns 18-years-old, benefits are terminated. At the age of 18, they can then apply for Social Security Disability Insurance (SSDI) as an adult under slightly different criteria.
It is important that a family realize the terms and conditions under which they qualify, especially if other community resources may conflict with the eligibility requirements. A lawyer concentrating in social security can assist with these interpretations.
Areas of social security law include:
- Medicaid benefits
- Medicare benefits
- Mental disability
- Physical disability
- Retirement benefits
- Social security laws
- Social security disability
- Survivor benefits
- Unemployment benefits
Taxes on income, business, purchases, and online are the main sources of revenue for governments. Citizens can be taxed at the federal, state, and local level. Americans are required to file taxes once per year.
Tax law continues to grow more and more intricate. An individual’s tax situation can become quite complicated, health status, income level, work status, extenuating circumstances, government benefits, and investments can all greatly affect tax status. A family may qualify for tax advantages, but if they have not adequately collected receipts to provide proof of expenses, or if they are unaware of the process to claim the tax advantage, they may lose the benefit at the time of filing.
For those with a child with cerebral palsy, parents may be able to claim medical expenses, home modifications, auto conversions, assisted technology purchases, and adaptive equipment expense. Wills, trusts, and charity donations are vehicles commonly considered for these purposes. There are dependent care benefits, disability pensions, and social security income that may be available.
A family may have the opportunity to itemize deductions such as impairment-related work expenditures and medical expenses. Tax credits are often provided for child and dependent care, the disabled, and earned income. In some situations employer tax advantages can be claimed if home care services are contracted. This may include services such as child care, nursing care, in-home care and housecleaning, in some circumstances. In addition, special considerations for families with low-income or homeless status may exist. These are tax advantages the government provides to those that qualify to help ease the financial burden.
There are tax advantages available for employers who hire an individual with special needs or who make improvements in providing access to those with disabilities. An individual who is aware of these opportunities can discuss these advantages with the potential employer at the time of interview and may enhance his or her likelihood of landing the job. Some of these include:
- Deduction for the costs of removing barriers
- Disabled access credit
- Work opportunity credit
Tax lawyers assist clients as they plan for the future and assess current tax liabilities. A lawyer can represent a family’s interest when being audited by the Internal Revenue Service. Tax lawyers can also inform of ways to plan for additional tax advantages. In some circumstances, tax lawyers may be versed in estate planning, financial planning, investments, or special needs trusts.
Areas of service of taxation lawyers include:
- Income tax
- Tax audits
- Tax planning
Trust, Estate, Will and Probate Law
Those who have a child with impairment or disability, often ask, “What will happen to my child when I’m gone?” Lawyers who concentrate in trusts, estates, wills, and probate law are able to help parents plan for this contingency.
Some children require minimal care, while others with severe conditions may require round-the-clock care. Often, those with special needs are dependent upon parents as primary caregivers. They’ve learned to understand each other’s needs and preferences. If an unforeseen accident should occur, families have at their disposal tools to plan ahead to inform future caregivers of their wishes for the ongoing care of their child if unforeseen circumstances arise.
Protecting the child’s interests and establishing future care are the roles and responsibility of lawyers who concentrate in trusts, estates, wills, and probate law. They will help to inventory assets, protect assets, and establish priorities, trusts, power of attorney, guardianship, and conservatorship, where appropriate. These lawyers can also record the preference for beneficiaries and estate executors, which are important designations that will shape the future care a child receives.
In some circumstances, where a will is contested, estate lawyers may continue to represent the individual’s interests in proving competency to the courts at the time the will was filed. They verify the signature is valid, and the estate is secured against any unforeseen challenges.
Parents and primary caregivers who pass away without proper planning and documentation leave the matters in the guidance of the probate court system.
Trust, estate, will, and probate law include the following:
- Asset inventory and protection
- Estate litigation
- Estate planning
- Probate and estate administration
For more information, visit Estate Planning, Wills and Trusts
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