“Making a Murderer” and Brendan Dassey’s Low IQ Defense.

The “Netflix docuseries” entitled “Making a Murderer” has generated a lot of interest in Steven Avery’s murder case. Avery’s co-defendant, Brendan Dassey, has been getting some attention, as well, primarily in regard to his low IQ defense. Dassey is Avery’s nephew, who according to his 2013 appellate decision, was tried and convicted of “first-degree intentional homicide, second-degree sexual assault, and mutilation of a corpse.” Tanya Lewis writes in her Business Insider piece, that “[a]s depicted on the show, the conviction appeared to be largely based off of a confession Dassey gave to police, which his defense attorneys argue was coerced . . . [t]he attorneys repeatedly make the case that Dassey was susceptible to police pressure to confess because he had a low IQ.” This first of two posts will look at the nature of what is now called an Intellectual Disorder, and how courts have interpreted testimony of psychologists and psychologists.

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The Regional Center Individual Program Plan or, “IPP.”

Definition of an IPP.

An IPP is a “statement of goals, based on needs, preferences, and life choices of the individual with developmental disabilities, and a statement of specific, time-limited objectives for implementing the person’s goals and addressing his or her needs.” {Welfare & Institutions Code, § 4646.5(a)(1)&(2).}

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1st-party Court-Established Special Needs Trust and the State’s Right to Reimbursement for Medical Assistance Paid on Behalf of the Beneficiary under a State Plan?

Any first-party special needs trust is invalid unless it contains a provision that “the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan.”  {42 U.S.C. § 1396p(d)(4)(A).}

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The Regional Center System for Persons with Developmental Disabilities.

California’s service delivery system for persons with developmental disabilities makes use of “regional centers.”  A Regional Center is a local non-profit corporation that contracts with the state of California to provide the services and supports described in the Lanterman Act to persons with developmental disabilities. While regional centers do provide some direct services, such as case management and assessments to determine eligibility, they purchase services from vendors, as necessary to implement an individualized program plan. 

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Tragedy at Inland Regional Center

It appears that the mass shooting at Inland Regional Center, where 14 people died and 21 people were injured was not directed at the regional center, but at people attending a holiday party for County Health workers, which was held at conference facilities on the Inland Regional Center campus.  One of the shooters, Syed Rizwan Farook was apparently an employee of the County.  He returned with his wife, Tashfeen Malik to the conference room and began shooting. My condolences to the individuals and families of the victims who did not survive, and best wishes and a speedy recovery to those who sustained injuries, and to the community at the Inland Regional Center, as they attempt to make sense of this violence and return to work.

 

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Draper v. Colvin, Part-5 – Parent-Established First-Party Special Needs Trust – Analysis.

Did Draper’s parents properly establish the Parent-Established First-Party Special Needs Trust for their daughter?  The appellate court commented that “[a]dmittedly, some evidence in the record supports Draper’s claim that her parents intended to act in their individual capacities [as opposed to acting as agents under a power of attorney].” {Draper v. Colvin, (2015) 779 F.3d 556, 564.} But the court rejects their arguments, showing how those facts did not result in a valid special needs trust, at least in this case.  

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Draper v. Colvin, Part-4 – What is a Dry Trust?

An interesting issue concerning a “dry” special needs trust arose in the Draper case. The issue arose in part, because the POMS, POMS SI 01120.203, makes reference to both a “seed trust” and “dry trust” as options that can be used for a parent-established, child-funded first-party special needs trust.  This post will consider what a Dry Trust means.  

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Draper v. Colvin, Part-3 – The POMS Two-Step Process of Parent-Established First Party Special Needs Trust.

How to Establish a Valid SNT under the POMS in California.

Draper v. Colvin found the POMS in question, POMS SI 01120.203, controlling on how a parent should establish a first-party special needs trust with a child’s assets.  what the SSA regards as a valid special needs trust.

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Draper v. Colvin, Part-2 – Formation of the First-Party Special Needs Trust – Background Facts.

The background facts are necessary to analyze how the SSA found this first-party special needs trust to be invalid.  Defects in the formation, such as found here by the SSA, require termination and establishment of a new special needs trust.

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Draper v. Colvin, Part-1 – Special Needs Trust Established by Parent with Child’s Assets – Introduction.

A first-party special needs trust, reviewed by the SSA, was found to be invalid.  Therefore, the trust assets are countable to the beneficiary/SSI recipient, who becomes ineligible for SSI.  If the Trust assets exceed $ 2,000.00, which is the asset limit, he or she becomes ineligible for SSI.  This series of posts will look at the Draper case, and consider the question of how can a parent establish a special needs trust for their child with a disability, that is to be funded with assets belonging to their child and not be found invalid, with the consequence of making the child ineligible for SSI and categorically-linked Medicaid.

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