"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Tuesday, October 27, 2009

Blawg in a Box

The word "blog" is a shortened version of the term "web log". And much like the word google, it can now be used as either a noun or a verb.

The cutesy term "blawg" (which is what I call this gem of a site you are reading) was apparently coined by some lawyer to mean "a web log written by lawyers and/or concerned primarily with legal affairs".

So now I have this b-law-g (I warned you it was cutesy) on which I sometimes wonder what to write about. Oh sure, stuff comes up, either in my own life or a news item that grabs my attention and gives me blogging fodder. But sometimes it's hard to know what to write about next. Hard to know what you, dear reader, have a burning need to know more about.

I've asked on a couple of occasions in the past for reader input although, in all fairness, it has been a while. But come on, people, how often do you have your own personal legal person of whom you can ask a (reasonably generic) question free of charge?

So, fire away ... what subject to do with the law and special needs would you like to know more about? Perhaps it's a topic I've already covered but you still have a question on. Or you could always check out the labels at the bottom of the sidebar on the right hand side of the page to see if that helps with some inspiration.

In the meantime, I'm thinking that my next few posts might well be a little less legal related and a little more parent to parent. This past weekend, with my trip to the NBACL Conference preceded by a visit to the HACL library has left me with some interesting thoughts (and book recommendations) to share.

But, hey, if you don't fancy that, feel free to use the comment box or the e-mail link to suggest some more 'legalesque' topics. In the meantime, I think I might just entitle my next few posts something along the lines of 'Lessons Learned On The Road'...

** Although in all fairness, it did recently occur to me that one subject I have failed to blog about on this site is Nova Scotia's own Hyde Inquiry [which has been covered in some detail bit on the Schizophrenia Society of NS Weblog] and the whole issue of the police use of tasers on individuals with disabilities.

Which, in my defence, I blogged so much on the taser issue last year on my personal blog that, quite frankly, I think I got a bit tasered out. Still, it is a subject that I should (and, no doubt, will at some point) discuss here.

Monday, October 26, 2009

Talk About Short Notice

Update: Thanks to Vicki at the Nova Scotia Partnership on Respite for passing on that the talk tonight (and the upcoming ones) are open to anyone interested.
Families whose children have special needs other than indicated on the poster are very welcome, and the talk will be generic (for the most part). Feel free to attend.

If you are attending, please call or email Kim Clarke at kim.clarke@iwk.nshealth.ca or 902-470-7039. Knowing numbers helps with having enough seats!
~ ~ ~ ~

Short notice, indeed!
But. It does LOOK interesting.

Although it does beg the question ... what about those of us whose children have intellectual disabilities?

Thursday, October 22, 2009

Martime Kitchen Party

I leave tomorrow for the one-day Maritime Kitchen Party in New Brunswick on Saturday.

And, yeah, I am looking forward to it.

I've never been able to attend any of the Association for Community Living's Conferences before. But I've always wanted to.

And although this means missing my annual trek to Tools for Life, I guess sometimes you just have to choose. I'm sorry to miss Tools for Life but I am sure it will be back again next year.

So here's to a good weekend. A little bit of learning, a little bit of networking, a little bit of respite. Doesn't sound so bad, does it?

Tuesday, October 20, 2009

If You Really Need To Know ...

Well, it's official. I am sick and tired of being sick and tired.

But for those of you with a burning desire to get even more intimately acquainted with the intimate details of the RDSP before (or after) taking the plunge, might I recommend this article by Jamie Golembek, entitled "Planning with Registered Disability Savings Plans", in the Canadian Tax Journal.

The article comes recommended by Doug at the Registered Disability Savings Plan Blog. Which is about as good of a recommendation as you're going to get.

And with that done, I'm heading back to bed.
Send chicken noodle soup. Please.

Thursday, October 15, 2009

Zero Tolerance = Zero Sense

Zero tolerance has been variously defined as:
  1. A "get tough" policy of making no exceptions in regards to a particular (usually criminal or undesirable) matter, born as a response to a general sense of uneven application of rules and punishments. To react to a proscribed activity or substance with absolute prejudice... Without regard to mitigating circumstances or conditions.


  2. Authoritarian rule system whereby breaking of the rules is taken very seriously and punishment is overly severe to get the message through.


  3. A common phrase referring all lack of being able to tolerate something. Often a policy referring to various rules to increase strictness and banish all regard for anything against the zero tolerance policy.


  4. A policy, usually by American schools that any reference to a gun, violence, or drugs will get you expelled automatically with no trial.
You can find more on the history of the concept here.
Since the 1980s the phrase zero tolerance has signified a philosophy toward illegal conduct that favors strict imposition of penalties regardless of the individual circumstances of each case. ... Critics of zero tolerance believe that inflexible discipline policies produce harmful results. Moreover, school administrators have failed to use common sense in applying zero tolerance, leading to the expulsion of children for bringing to school such items as an aspirin or a plastic knife.
I have a friend who rightfully likes to note that common sense is the least most common sense of all. And that last statement about school administrators failing to use common sense in applying zero tolerance could probably win an award for the understatement of the year.

A six-year-old was suspended ordered to spend 45 days at his school district's "alternative school for troublemakers" after he brought a combination folding fork, knife and spoon to eat his lunch at his Delaware school last month.
The knife is banned as a dangerous instrument under the Christina School District’s zero-tolerance policy, which officials said required them to expel Zachary or send him to the equivalent of reform school regardless of his age or what he planned to do with the utensil.
But don't worry he's in good company - a fifth-grader in the same school district was expelled last year for bringing a birthday cake and a serrated knife to cut it with. In that case, perhaps, common sense prevailed; the expulsion was overturned.

The Board isn't too worried though. They seem to think they have it under control. They're prepared to consider a narrow change that wold affect only kindergartners and first-graders and allow for [wait for it] three to five day suspensions rather than mandating harsher punishments.

That's right, apparently the solution to 5 or 6 year old bringing his camping utensils to class is a 3 to 5 day suspension. As opposed to being expelled. Because that's compassion. That's common sense. And these are the people we entrust with the care, teaching and discipline of our children? What does that make us - as crazy as them?

But sadly for all of us, there's more to this than just the obvious insanity. In theory, Nova Scotia had recognized it's disparate impact (or some might say, stupidity) and thus, does not have a zero tolerance policy. [See pages 2 & 3 of the link]

Notice I said "in theory". In reality, students are being suspended or otherwise punished for behaviour for which is a result of their disability. Behaviour over which they have little, if any, control.

READ MORE

Tuesday, October 13, 2009

Invitation

The NS Partnership on Respite, Family Health and Well-being is pleased to invite you to our new webpage on Ning.com. Ning is a social networking site, but it has a look and a feel of a webpage. We have developed the site to offer you a central location for information and to connect with others around respite topics and issues.

You can easily access things like:
  • Information - The Caregivers Weekly is now called Tips of the Week. All issues of the Caregivers Weekly are stored on the Ning site.
  • Events - we have a calendar section with events listed. Just click on the event you want to learn about !
  • Forums - the site allows members to discuss issues on-line. Have a topic you want to discuss? Contact the Adminstrator at this email address and tell us what you are thinking of. A discussion can be set up very quickly.
This site will be used along with the Staying Connected email group. It offers you another way to be in contact with other families in the province. Starting this week, for instance, the Tips of the Week (Caregivers Weekly) will be sent out to the Staying Connected Group via email, as well as published on the Ning site. We hope this site will help the respite community continue to connect and interact together.

How do you find the site? Please enter www.respitepartnership.ning.com and click on Join Us on the right hand side of the screen. Just follow the on screen instructions. There will be a series of profile questions to answer. These are considered private and will only be seen by the administrator. Once you have completed the questions, the administrator will accept you and you have full access to the webpage.

So come and join us!

Regards

Vicki Harvey
NS Partnership on Respite

Saturday, October 3, 2009

Henson Trust Clarification

It was brought to my attention that some of my previous posts on the Henson Trust might have been a trifle misleading or confusing to some readers on the issue of whether or not such a Trust will work to protect the beneficiary's access to government benefits in Nova Scotia.

Looking back, I'm thinking that the wording of this post, in particular, might have caused some confusion. Which is unfortunate because what I was trying to say, what I meant to say, was what I think I had clearly set out in a previous post.

Now, don't be fooled by the first line; you actually have to read the whole thing.
Discretionary trusts will not protect your child's access to government benefits.

A discretionary trust is a type of trust where the Trustee is given discretion as to what types of investments to invest in and as to whether and when to distribute money to the beneficiaries. This type of trust is fairly common in a Will where one of the beneficiaries is a minor. Even though with this type of trust, the Trustee has the discretion to decide whether or not to distribute money to the beneficiary, this won't be sufficient for our purposes. Because with a discretionary trust, the beneficiary (your child, in this case) would still have the legal right to go to court and have the Trustee's exercise of discretion analyzed to ensure that it has been exercised reasonably. And if the court find that the Trustee has acted unreasonably, it can compel him to pay benefits to the beneficiary.

You will recall , however, that the Henson Trust is an absolute discretionary trust, meaning that the Trustee cannot be compelled (forced) to disburse money for the support of the beneficiary. In other words, your child, as the beneficiary of such a trust, will have absolutely no legal right to go to court and force the Trustee to provide any money to her. Theoretically, the Trustee could decide to never disburse any money from the trust and there would be nothing that anyone could do about it. But that is the crux of the matter, the good and the bad. That lack of control by your child is what is required to protect their access to government benefits. And also, incidentally, why you will want to choose your Trustee with great care. You are giving them a lot of power over your child's life.

So why is the Department taking the view that Henson Trusts are not valid in Nova Scotia and we are telling you otherwise?
You can read the rest of that post here.

The relevant point here is that although an ordinary discretionary trust will not be sufficient to protect a person's access to government benefits, I am reasonably confident that a Henson Trust will.

And that's not just my opinion; I have discussed this matter with both Ken Pope and Paul Miller, each of whom practice extensively in this area of the law, and although the matter has never been taken to court in Nova Scotia, we are all in agreement that if it was, it should be found valid.

So, I hope that's clear.

When it comes to protecting government benefits in Nova Scotia:
  • Ordinary, garden-variety discretionary trust - Bad.

  • Henson Trust - Good.
And, just as an aside, RDSP - Very Very Good.