Austistic law student's loans discharged

Charlottesville Attorney

Autistic law student’s loans discharged

By Dolan Media Newswires
Published: June 4, 2012

Tags: Bankruptcy, Federal Courts, Law Schools
 
A former Regent University doctoral student with Asperger syndrome will not have to pay almost $340,000 in student loans she accumulated during her almost 20-year pursuit of higher education, including a stint at law school, a Maryland federal bankruptcy judge has ruled.

Asperger, a disorder considered on the high-functioning end of the autism spectrum, makes it impossible for Carol Todd to hold a job and therefore pay back her loans, Judge Robert A. Gordon found in a May 17 decision.

“It quickly became evident, from the vantage point of the bench, that Ms. Todd’s reality is very different from the norm,” Gordon wrote. “Autism tunnels her perception to a very fine point and that is reflected by her eerie disconnectedness from a comprehensive life experience.”

Todd and her attorney, Frank E. Turney, of Catonsville, Md., filed a petition November 2009 to discharge student loans of $339,361 owed to several lenders. Turney did not return calls for comment from the Baltimore Daily Record.

Todd, 63 at the time of the trial in November 2010, did not attend school while growing up, according to court documents. She received her GED at age 39 and, starting in 1989, pursued higher education as part of a rehabilitation program.

Todd obtained an Associate of Arts degree from Villa Julie College, now Stevenson University, in 1992. She received a full scholarship to the University of Baltimore School of Law that year but did not complete the program. She got her bachelor’s degree in philosophy from the College of Notre Dame in Baltimore in 1996, then went to Towson University and received two master’s degrees in 1999.

She was in a doctoral program at Regent University in Virginia from 2001 to 2007, but never received that degree. She did receive a doctoral degree from an unaccredited online university in 2007.

Student debt has climbed in recent years. The American Bar Association reported that in 2010, 85 percent of law graduates from ABA-accredited schools had an average debt load of $98,000. Many students do not realize how difficult it is to discharge student loan debt in a consumer bankruptcy proceeding.

The law provides that student loan debt can be waived only if the debtor can prove undue hardship – a standard that Gordon said is established if the debtor cannot maintain a minimal standard of living if forced to repay loans, additional circumstances exist that indicate this will persist while the loans are paid off and the debtor made good faith efforts to repay loans. The judge found Todd met all these requirements.

“As Ms. Todd explained it, she continued her academic odyssey, and the government-sponsored rehabilitation program, for almost twenty years in part because each time she obtained a degree she found herself still unable to obtain employment that would allow her to earn a living, support herself and, moreover, repay the student loan debt,” Gordon wrote.

Todd’s education was funded through student loans and disability payments. Todd testified that she made payments while attending school, but that could not be verified, Gordon wrote.

The only job she has ever held was as an adjunct professor for three public universities in West Virginia from 1999 to 2003. She taught one two-credit course per semester, was paid $1,200 per semester and was allowed to live in university-subsidized housing. Todd moved back to Baltimore in 2007.

“While Ms. Todd can focus with intensity academically, Autism will not allow her to function in a normal job setting and generate meaningful income,” Gordon wrote, citing deposition testimony from Todd’s doctor, Ramana Gopalan.

Sandy D’Erasmo, who founded the Anne Arundel County Asperger Support Group, said it is often difficult for people with Asperger syndrome to hold jobs because they struggle with social cues, sometimes talk too much, give too much information or can’t follow step-by-step directions.

Gordon noted that “there were several times during her testimony when Ms. Todd became overwhelmed in the face of seemingly innocuous questions and for no apparent reason folded into a fearful shell. None of this was contrived; instead it all found its source in Ms. Todd’s incurable ailment.”

The U.S. Attorney’s Office, which is representing the U.S. Department of Education, and Rand L. Gelber, attorney for Educational Credit Management Corp., declined to comment. The attorney for Access Group Inc., Marc E. Shach with Weinstock, Friedman & Friedman P.A., declined to comment and said he and his client were still deciding on whether they would appeal the decision.

- By Kristi Tousignant

Good article.  Please let us know if you need legal advice.


Tucker Griffin Barnes
Charlotteville, VA (434-973-7474)
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Basic estate and long-term planning a must for LGBT seniors

Charlottesville Attorneys

Basic estate and long-term planning a must for LGBT seniors

By Virginia Lawyers Weekly
Published: May 21, 2012

Tags: Elder Law, Wills & Trusts
 
Virginia does not recognize same-sex marriages or domestic partnerships, and also does not recognize the validity of same-sex marriages or domestic partnerships entered into in other states. As a result, the lesbian, gay, bisexual, and transgender (LGBT) population of Virginia has a critical need for estate and long-term care planning.

Without the proper planning, as health deteriorates with age, estranged family members may end up with decision making authority over an LGBT senior’s financial, health and final arrangements, in lieu of a life partner or a trusted friend. Without a will, relatives of an LGBT senior may inherit property that was intended to sustain a life partner during their golden years.

Even without the proper planning, heterosexual couples have protections built into our statutes. Marriage brings rights to inherit property if the decedent dies without a will. Marriage brings statutory decision making authority over a spouse’s health care. Marriage confers rights to receive notice of pending proceedings under our state’s guardianship and conservatorship statutes. Spouses may make funeral arrangements as “next of kin” of the decedent. Spouses have protection from their spouse’s creditors as to property that they own as tenants by the entirety. Finally, spouses are protected from impoverishment if their spouse needs Medicaid to pay for long-term care.

LGBT couples (as well as unmarried heterosexual couples) lack these statutory rights. There are no inheritance rights, no health care decision making authority, no requirement that the partner be notified of a hearing to declare their partner to be incapacitated, no authority to make funeral arrangements, and no safe harbor under Medicaid’s transfer regulations. LGBT seniors can, however, put documents in place to establish these rights. LGBT seniors must act affirmatively to put these documents in place before the onset of illness, incapacity or death, in order to avoid the risk of having their partners left out of the most sensitive decision making.

As we age, the odds increase that we will lose our ability to give informed consent, and that health care professionals will need to look to a surrogate for health care decision-making authority. Not infrequently, LGBT persons (and their partners) have troubled relationships with their families, which may be due in part to family members’ disapproval of the LGBT person’s sexual or gender orientation. In the event that the LGBT patient cannot give informed consent, an advance medical directive dictates that the LGBT’s partner or trusted friend makes sensitive health care decisions, not a hostile, estranged, or distant family member. In the absence of an advance medical directive, and if there is no court-appointed guardian, it is generally the immediate family who will make decisions regarding an LGBT senior’s heath care.

Advance medical directives frequently contain a “living will” (or “natural death declaration”) stating the person’s preferences regarding life support in the event of terminal illness or a persistent vegetative state. If one of these end-of-life situations presents itself, a “living will” reassures the agent named in the advance medical directive that they are making the decision that their loved one would want, and assures the family that the agent is acting in accordance with the patient’s wishes.

Another critical document for LGBT seniors is a designation of a person to make final arrangements. In the absence of such a designation, the decedent’s “next of kin” are the only people authorized to make funeral and burial arrangements. “Next of kin” is defined in our statutes as spouses and blood relatives. A life partner has absolutely no legal authority to provide burial instructions. If there is disagreement about what arrangements should be made, any of the “next of kin” may petition the court to determine who should have decision making authority; a partner would not likely have standing to bring such a suit. It is not enough for an LGBT senior to discuss their wishes regarding their final arrangements with their partner, friends and family. These wishes might not be honored, or worse may be disregarded. In the absence of a written designation of an agent to make final arrangements, partners are legally shut out of the decision making, and must depend on the family to include them in the plans.

A durable power of attorney is a third critical document for LGBT seniors. Nominating a person to handle some or all of one’s financial affairs in the event of incapacity can obviate the need for a court order appointing a conservator to manage one’s financial affairs. As noted above, there is no requirement that a partner be notified of any such court proceedings, unless the partner is an agent under the person’s written power of attorney or written advance medical directive.

There are no inheritance rights or family allowance rights under Virginia law for partners of LGBT decedents. Thus, it is extremely important for LGBT seniors work with a knowledgeable estate planning attorney to ensure that their assets are properly and efficiently distributed at their death. In the absence of proper planning, a LGBT decedent’s blood relatives could inherit the decedent’s property under Virginia’s intestacy statutes. Virtually all will forms available through self-help kits and web sites presume that all of the beneficiaries are legally related to the decedent, and are therefore less likely to have the proper outcome for a LGBT couple.

Lastly, LGBT seniors must act affirmatively regarding paying for their long-term care. Many seniors turn to Medicaid to afford the cost of a nursing home. Medicaid laws provide some protections against spousal impoverishment, and generally allow spouses to exchange property with each other, but offer no corresponding protections for same-sex partners. Long-term care insurance is especially prudent for LGBT seniors. The assistance of a knowledgeable elder law attorney may enable the LGBT couple to arrange their finances to support each other without running afoul of Medicaid’s gifting restrictions.

- By Ashley Payne, an associate with the firm of White & McCarthy in Midlothian.

Excellent article.  Please let us know if you need any legal advice.


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Charlottesville, VA (434-973-7474)
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What should an attorney do when they notice their client has diminished capacity?

This article was written as advice to attorneys who notice their client has diminished capacity.  Although written for attorneys, we think it provides excellent insight into the problems many families are facing today.

When you notice your client has diminished capacity

By Virginia Lawyers Weekly
Published: May 17, 2012

Tags: Elder Law
 
At some point in your practice you may be confronted by the diminished capacity of a client. With the American population aging, the number of individuals with diminished capacity is increasing. An attorney may be faced with a client in crisis because of diminished capacity and possibly challenged by one of the following scenarios:


Scenario 1

You have done the estate planning of a couple a few years ago, and then the wife comes to see you. She is concerned because her husband, who is suffering from dementia, has a new behavior of uncontrollable spending. The husband is continuously giving money or writing checks to whoever comes to their front door. The couple had executed a standard estate plan including last wills and testaments, healthcare powers of attorney, durable financial powers of attorney and revocable trusts. Now these documents may not be sufficient enough to protect the couple. In addition, you are faced with a conflict of interest since only the wife is coming to see you while you began the relationship as joint representation.

Scenario 2

The children of your client come to see you for a consultation, because they are concerned that their mom is being financially exploited by her housekeeper. Mom recently revoked the power of attorney designating the children as agents, and has signed a new power of attorney designating the housekeeper. What shall you do?
In both scenarios we are faced with a potential conflict of interest. In both, however, we can see the need to protect the client.

One possible solution in scenario 1 would be to have a meeting with both the wife and the husband to address the issues. This will give you an opportunity to assess whether the husband is capable of and willing to cooperate in taking steps to protect the couples’ assets. If all of the assets were titled in the revocable trust you will be able to recommend that the husband resign as trustee. In addition, you may wish to confirm there are no other assets outside of the trust that could fall under the control of a new agent, should the husband revoke the current power of attorney and create a new one. If these measures are not sufficient, the wife could petition for guardianship and conservatorship of her husband. However, since you also have a client-attorney relationship with the husband, you cannot represent the wife in this matter. This petition will require a doctor’s evaluation and opinion that the husband is not capable of making decisions about his personal and financial affairs. It will certainly be easy for the wife to contact the doctor because the husband should have signed a HIPAA release on her behalf.

For the second scenario (action of the children), it may be necessary to pursue a petition for guardianship and conservatorship of the mother, with an express provision to revoke the existing power of attorney.

Again, you have an existing attorney-client relationship with the mother, and representing the children would conflict with that relationship. However, if you determine that the circumstances meet the requirements of Rule 1.14 of the Rules of Professional Responsibility, you can be the petitioner in seeking the appointment of a guardian and conservator to protect your client. Unless the children have a release from mom, collecting a doctor’s evaluation report will be more difficult in this case. It is not certain that the mom has executed a HIPAA release and/or the children may not have access to their mother’s doctor. The best solution would be for the children to become more involved in their mother’s healthcare. They will need to accompany their mother to her doctor’s appointment and to try to have her execute a HIPAA release. The children will have to outline their concerns with their mother’s doctor and ask that the doctor conduct an evaluation. If this is not possible, a petition for guardianship can be filed together with a motion for the court to order a doctor’s evaluation. In addition, the court-appointed guardian ad litem has the authority to require an evaluation as part of the investigation of the allegations of the petitioner’s complaint.

Another option in both scenarios is to contact Adult Protective Services, and present the concerns about safety and financial exploitation. Adult Protective Services will do an inquiry provided that they are permitted in the home when they knock at the front door. Their investigation may take time and you may want immediate action.

As the attorney of a client with diminished capacity you also have a special duty to protect your client. Rule 1.14 (b) provides that an attorney should “take reasonably necessary protective action” when a client “is at risk of substantial physical, financial or other harm.” The American Bar Association suggests that the attorney may take action on behalf of a client under the following circumstances:

•?It is an emergency situation that threats the health, safety or financial interest of the person under disability;
•?Action is required only to the extent necessary to maintain the statusquo or otherwise avoid immediate or irreparable harm; and
•?Only confidential information necessary to achieve the intended action shall be disclosed by the attorney.

Although it seems that the attorney can make decisions in a proceeding on behalf of an impaired client, under no circumstance can an attorney perform any act, or make any decision, which the law requires the client to perform or make, if the client is legally incompetent.

From a legal stand point, incapacity is officially determined by the court. Otherwise there is a presumption of capacity. However, the practitioner will always have to assess whether the client has the capacity to enter into a contract of representation, and whether the client has the capacity to execute a legal document.

Even if the capacity is presumed, the practitioner must determine whether or not a prospective client has sufficient legal capacity to enter into a contract for the lawyer’s services. Then, the lawyer will have to evaluate the client’s legal capacity to carry out the specific legal transactions desired as part of the representation.

The failure to assess a client’s capacity has been asserted as grounds for legal malpractice by would-be beneficiaries of a client. The standards of practice continue to evolve as the prevalence of incapacity rises and as a greater awareness of the need to address capacity issues has emerged. Legal malpractice for failure to address capacity questions in cases is no longer a remote possibility, and with Rule 1.14 (b) attorneys are also required to take steps to protect their clients.

- By Yahne Piorini, who practices elder law with Miorini Law PLLC in McLean.

Excellent article.  Please let us know if you need legal advice.


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Charlottesville, VA (434-973-7474)
Lake Monticello (434-589-3636)
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New ACLU Board Member

Tucker Griffin Barnes is pleased to announce Andre A. Hakes (firm partner) has become one of the newest board members of the ACLU of Virginia. The ACLU of Virginia is a private, non-profit organization that uses lobbying, litigation and public education to promote civil liberties and civil rights in the state. They are an affiliate of the national ACLU, with whom they share resources and expertise.

The principal mission of the ACLU of Virginia is to protect the constitutionally mandated freedoms that government tends to erode, and to advance rights clearly intended by our Constitution, but never fully implemented in our society.

The ACLU has filed more than 300 lawsuits in Virginia over the last 40 years, and with each successful case they have advanced the cause for freedom and equality. Because these cases required financial resources and legal expertise not available to the average citizen, it is safe to say that only a handful would have made it to the courtroom without the ACLU's assistance. In addition, hundreds of other threats to civil liberties have been resolved with the mere threat of litigation by the ACLU or through our public education efforts.

There are over 500,000 ACLU members nationwide with 9,000 of them living in Virginia.

Tucker Griffin Barnes P.C.

Attorneys at Law
Charlottesville, Virginia
434-973-7474
AHakes@TGBlaw.com
Charlottesville Criminal Defense Attorney

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Hakes Shakes Things Up

Andre Hakes recognized for her Civil Rights work in Charlottesville:

http://www.c-ville.com/index.php?cat=121304062461064&ShowArticle_ID=11800203094391868#Andre

Andre A. Hakes
Charlottesville Criminal Lawyer

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

AHakes@TGBlaw.com

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