One of the useful things I am bringing home to my clients is information about the Five Wishes documents created by an individual close to Mother Teresa.  I am recommending that my clients review the forms with their loved ones, in a quiet and calm environment, so they can think through the various options and scenarios.  Even though the Five Wishes are not yet recognized in Texas, I encourage my clients to attach them to the Medical Directive or the Medical Powers of Attorney that I draft for people.  This will eliminate a lot of uncertainty for your loved ones at a very stressful time, and give you the opportunity to focus on the issues with them, I a way that will have some structure and guidance.

Please take a few minutes to look over the link:  http://www.agingwithdignity.org/five-wishes.php.

Five Wishes lets your family and doctors know:

• Who you want to make health care decisions for you when you can’t make them.
• The kind of medical treatment you want or don’t want.
• How comfortable you want to be.
• How you want people to treat you.
• What you want your loved ones to know.

I will cover it in more detail in the context of the free presentation on April 25, 2011, at 5:30 p.m., at La Mancha Business Center, 2701 West Berry Street, Fort Worth, Texas  76109.  Come in the front entrance under the three green arches.

The subject of the presentation is:

Five Documents Needed in Texas; as well as invaluable information from Dr. Ed Luke, geriatric psychiatrist, on the some of the things you might need to know about difference between dementia and drug interactions in elderly people.

The Five Documents Are:

Durable Power of Attorney

Medical Power of Attorney

Mental Health Declaration

Designation of Guardian in Advance of Need

Living Will

They will be discussed using as a text the Elder Law Handbook assembled by the Senior Citizens Committee of the Tarrant County Bar Association.

What I have discovered over the last couple of years is that people who are calling me are caught between raising children while in their 50’s- OR LATER! and beginning to care for their aging parents.  Sometimes it is overwhelming and exhausting!
I have focused in past years on contested custody cases-  gathering the evidence to allow the courts to remove a child from a dangerous situation to place the child with grandparents or other family members.
Now I am focusing on the other family members also.
What do the have in common?  I call it the “SANDWICH GENERATION.”  I think that may be an official term now- it is getting to be so frequent and familiar.
What documents do you need if you are in this situation? Or if you want to prepare yourself with your own safety net, to keep control of your health care and finances if you can’t act on your own behalf?

• Durable Power of Attorney  (for your financial affairs)
• Medical Power of Attorney (so that you can identify your medical advocate)
• Mental Health Declaration (so that your preferences will be clearly stated)
• Declaration of Guardian in Advance of Need (so that YOU can determine who will make decisions about your care and your property, NOT the courts)
• Directive to physicians and other surrogates (Living Will) – your wishes in the case of your last illness.

I am delivering my March presentation this week, on Tuesday, after work.

You will leave with a free medical power of attorney, signed and witnessed. And a valuable Elder Law Handbook with many definitions, a lot of information and phone numbers, and the answers to a lot of your questions.
Let me know immediately if you want to come to the FREE presentation on Tuesday, March 22, 2011 at 5:30- Still have a few seats left!
PLEASE GO TO MY FACEBOOK BUSINESS PAGE FOR MORE INFORMATION or to reserve a seat at my presentation:

https://www.facebook.com/pages/Dorothy-Scherr-Law/173201576024104?ref=ts

Sometimes there is a young mother, just barely older than a child herself, who is alone and now has a baby to raise. In these circumstances, a young mother may be overwhelmed and in financial hardship. She may be ill or have psychiatric problems.  It may be the best thing for her and for the baby, to allow the baby to be adopted by a loving family which is able and eager to add a child to their family.  Sometimes it is the grandparents that step in to raise the child.  Or an aunt or uncle whose lives are in better shape for one reason or another. This is particularly true where there is drug addiction or an abusive relationship in the background.  There are many grandparents raising their grandchildren in Texas, and many young parents who are lost souls, struggling to regain their footing.

If the case is an agreed adoption, and the mother is willing to sign an order terminating her rights, this kind of case is much easier and is straightforward.

The mother must sign an Affidavit of Relinquishment, and an order agreeing to the termination of her rights.  If all parties are in agreement, this can be done fairly quickly. These documents will then be presented to the Court for approval.  Someone will have to testify about the documents.  It is good for the mother to be present. However, it can be arranged for that to be avoided, if it is painful or difficult for the mother, or if she is not well or able to come to the hearing. It is best for there to be an eye witness to her signing, to testify that they witnessed the signing of the documents. The judge will often have questions of the witness, so being prepared is important. The court proceeding will take approximately one hour of time.

The father’s rights and the termination of those rights are handled as a separate issue.  I have discussed that in a different post.

Texas law is clear on the subject.  Section 161.002 states that the rights of an alleged father may be terminated if the child is over one year of age at the time the petition for termination or adoption is filed, if he has not registered with the paternity registry under Chapter 160, and if, after exercising due diligence, the petitioner is unable to determine his identity and location; or if his identity is known but he cannot be located.

This means that a father who is interested in having a relationship with his child, has one year from the child’s birth to register with the paternity registry of the state of Texas.  If he does not, his rights can be terminated if he cannot be found or if his identity is unknown.

The first thing is:  do a search of the Paternity Registry of the State of Texas through the Texas Department of Health Bureau of Vital Statistics to request a report on the paternity of the child.  The fee is $10.00 per child if paid by money order or check and $12.25 if paid by credit card.  Call 512-458-7782 to speak with Carolyn Morgan.  If an Acknowledgement of Paternity were filed, it would have been signed by both parents. The judge will want to see the results of the search.  It will be critical in complying with the requirements of the law.

The United States Supreme Court wrote an opinion on how to determine the constitutionality of a state statute.  The Texas Court of Appeals, 14^th circuit, wrote an opinion stating that the Texas law is constitutional and clear in its requirements.

Back to the hearing in Parker County:

The case in Parker County was a situation in which the identity of the father was not known; he had made no attempt to contact the mother, offer child support, or have a relationship with the child.  And the mother had made many good faith attempts to identify and locate the father.

In the case in Parker County,  the judge agreed that the law allows the father’s rights to be terminated. The judge signed the orders terminating the rights of the unknown father.

Now the door is open for the family that wants to adopt the child.  The road is clear.  The next step is the social worker and the social study.  I will write about that next time.

When I have a hearing in court, I take the time to prepare our client very thoroughly for being on the witness stand, telling her or him in advance what questions I am going to ask and preparing them for the answers in case they get nervous or forget.

Usually it is very simple questions, like:  is this the affidavit that you signed?  Was there a search done of the paternity registry?  What were the results of the search?

Sometimes the judge will ask questions from the bench, to try to get a sense of the background facts.  I keep a detailed list of all the information in front of me so I can be sure to ask the client any follow up questions to make sure the judge gets a clear picture.  It is important to keep the end goal in mind and to keep the facts in clear focus, so that goal does not get lost in the details.

I also try to prepare the judge for the legal arguments I am going to make and provide him or her with written copies of any cases I feel will allow the judge to find in my client’s interest.  Yesterday, I handed the judge two cases, a U.S. Supreme Court case, and a case from the Fourteenth Court of Appeals.   I will write more tomorrow about the contents of those cases and why they are important.

I will also post pictures of a place in Weatherford, that looks like it is out of the 1950′s -called The Malt Shop.  They make home-made ice cream every Tuesday, right down the road from the courthouse!  It is a good place to stop on the way back to Fort Worth, after a long day in court.  And hamburgers there are $1.46 on Mondays!  I tell all my clients to go there after court, as a reward for what they have accomplished that day.

Sometimes they really need it.

And sometimes what they need are hugs.

Advocacy groups and the North Texas Trafficking Task Force are focused on underage victims coming to Dallas ahead of Sunday’s game between the Pittsburgh Steelers and the Green Bay Packers. They say pimps who engage in human trafficking place ads for escorts with out-of-town contact numbers and rent houses or buses for parties featuring underage girls.

If you see anything suspicious, something suspect on the Internet or advertisements for sex service, contact local authorities. To find anti-trafficking resources in your area, call the National Trafficking Resource Center at 1-888-373-7888.
Read more: http://www.mysanantonio.com/sports/article/Police-watch-for-sex-trafficking-ahead-of-big-game-988844.php#ixzz1CrNjW9HN

Read more: http://www.mysanantonio.com/default/article/Super-Bowl-a-magnet-for-human-traffickers-990483.php#ixzz1CrMcD8m5

Read more: http://www.mysanantonio.com/sports/article/Police-watch-for-sex-trafficking-ahead-of-big-game-988844.php#ixzz1CrNWMfJt

The purpose of this question is to help you and the lawyer focus on any immediate deadlines or issues: are the children about to start school ? Has an employment situation changed so child support needs to change? Is someone about to take an action that will have an impact on your life? Did the parent take the kids and you think they are not going to be brought back?

Some things require immediate action: does money need to be moved? Are credit cards about to be cut off? Is money about to be cut off? Do you need a Temporary Restraining Order to freeze access to bank accounts? Or perhaps prevent someone from picking up the children and taking them far away and not bringing them back to you?

You may need to move money to protect yourself, before you are served.

Run up credit cards before you are served

Most important question: what do you want?

Second question: what is most cost effective?

What the judge will look for: what is in the best interest of the children?

Generally, you can expect that the person who has the children when the petition is filed- will keep the children. This is not always true. However, your lawyer may tell you to pick up the children and keep them with you before the petition is filed so that a temporary restraining order can freeze the status quo.

Next post, I will tell you want to expect at the hearing for the Temporary Restraining Order and Temporary Orders.

The kind of lawyer you will want for your case depends of course on what you want, and on your own needs and desires and your budget. Of course you want a lawyer with years of experience, who is personally acquainted with the court and the judges in which your case will be heard. And who knows the clerks and the social workers and the child support system and can get in and out with answers quickly and efficiently.

Generally, you also will want a lawyer you can communicate with, who really understands what you are going through. And you want a lawyer who gives you good steady advice and does not immediately pour gasoline on the fire. Think of it as a pilot for an airplane. You are going to be flying through a storm and there will be rough patches. You want someone with a cool head flying the airplane. And someone who knows how to land the plane and unload the cargo even when the wind is blowing.

PLAN A and PLAN B

Lawyers generally divide their cases into two categories – low conflict . And high conflict. I describe this to my clients as: Plan A and Plan B

Plan A is, generally speaking: “Let’s all sit down and see if we can work this out.” This can involve a Marriage and Family therapist ; a mediator, and use of agreed orders based on a mediated settlement agreement (MSA) or a Rule 11 Agreement. It is possible that your situation will be best served by you and your spouse both investigating Collaborative Law.

Lawyers trained in Collaborative Law will assist you in resolving all the issues outside the control and procedures of the court , with both of you sitting down together over several sessions to work out all the issues with expert guidance, such as a certified financial planner to work with both of you for tax planning purposes, or a child psychologist to make sure the children are being cared for during this stressful time.

Plan B is, generally speaking: You and your lawyer begin to work out a strategy to gather evidence, identify witnesses, and begin to file pleadings that will persuade a judge to give you what you need.

Generally, Plan A involves compromise , and is intended to result in a more or less Win/ Win solution.

Plan B is where you and your lawyer play hardball to win.

If there is family violence , or the children are in danger of a bad situation, often your lawyer will advise you to start with Plan B. Although not always. It just depends.

You can expect that Plan A will cost you somewhere between $2,500 and $3,500 with most lawyers, unless there is a lot of property and professionals that must be engaged to assist in tax planning and other issues related to the property. With Plan B, well, you have to really be prepared, with money set aside for attorney’s fees and living expense during the difficult first phases of the case. It is not unheard of for people to pay thousands of dollars for a contested case turned adversarial. Unfortunately, it can sometimes be so high that you could send your children to college, for what the divorce will cost. That’s why it is usually best to find a lawyer who can calm things down, work with the other lawyer, and guide all parties towards a solution where the parties work out what is best for them and their children, instead of waiting years and spending a small fortune for the court to decree from on high how it is going to be.

Every case is different. So you have to prepare with your lawyer for how to deal with your own special set of facts and circumstances. Next posting I will tell you what you and your lawyer will talk about in your first interview.

Bring all correspondence from your spouse or especially from a lawyer – asking you to sign an agreement? BRING IT.

DON’T SIGN ANYTHING UNTIL YOU GET IT REVIEWED BY AN EXPERIENCED LAWYER!

Bring a copy of everything in the court file

Bring a copy of the docket sheet

Copy of your paycheck YTD

Copy of your spouse’s paycheck YTD

Copy of all paychecks for the last two years, if you can get them. (Be sure to black out account numbers except last 3 digits.)

Copy of two years tax returns with SS numbers blacked out except for last 3 digits

And if there are children involved, this is something that will be covered in detail in another presentation on the website.

The lawyer will give you a worksheet for income and expense , and inventory of property . Or you can go to our website and download the Income worksheet and the Expense worksheet . It is in Microsoft Excel format. We recommend to our clients to fill out two sets: one for you, if you are separated or going to separate. And work out one for the other spouse. This will give you an idea of what can be moved around and what the approximate equities are. If you go to a court hearing you will be able to compare your worksheet estimates with the other party’s worksheet. There is nothing like being prepared.

Also you will need to begin making the inventory of all the assets of both parties, whether they are family community assets, or whether they are separate property assets. Again, you will later be able to compare your list with the other party’s list. At some point your attorney will ask you to sign the inventory, under oath. We have a worksheet on our website that will help you get started.

The most important thing is to begin the process of focusing on what you need in order to function and take care of yourself and your children. This can be difficult when you are in the middle of an emotional hurricane. Your lawyer is there to help you through this period, to shine a flash light through the mess so you can find your way to safe ground.

And you can help by begin the process by gathering your documents and doing your homework.

You should also begin thinking about gathering funds for yourself and for attorney’s fees. Look at all your bank balances to see where funds can be gathered. You may need to move funds into an account where they cannot be accessed, in advance of seeing your attorney. Begin talking to family members who may be able to help. Check all credit card balances. Obtain the payoff statements on any mortgages from your lender, as well as obtaining the statement of valuation on your real property. These may be obtained from your tax assessor collector online. Or you can obtain an estimated valuation from a realtor who has sold homes in your neighborhood. Often these estimates contain photographs and detailed information of comparable sized homes near your residence and other residences in your area. Prepare, prepare, prepare. The more you gather and prepare for your attorney, the less time your attorney will have to bill you for gathering the same information.

There is help. Here is a common sense solution we offer to our clients.

The law provides that the parent who has the child or children for Thanksgiving, has them all weekend. Wednesday to Sunday evening. If school is out earlier than Wednesday, it is even longer than that.

This could mean that the parent who would have possession of the child for a particular weekend, may miss their weekend. And have NO thanksgiving with the child or children.

So what to do?

This is the way the orders are usually written:

3. Thanksgiving in Odd-Numbered Years – In odd-numbered years, [name] shall have the right to possession of the child beginning at [time] on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

4. Thanksgiving in Even-Numbered Years – In even-numbered years, [name] shall have the right to possession of the child beginning at [time] on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.*

But what people often don’t realize is – the parties can agree to anything they want!

Here’s what I suggest for my clients. It works best where both parents live in the same town. I have had almost 100% approval of this suggestion – it really relieves a lot of tension and disappointment. My clients really like it.

In the event that either parent shall have possession of the child(ren) for the Thanksgiving holiday including a weekend that would have otherwise been the other parent’s weekend, then it is ORDERED that the non-custodial parent for that weekend shall have possession of the children from noon until 6 p.m. of the Sunday following Thanksgiving, so that the parent may have a second Thanksgiving for the benefit of the children with family members who were not present on the Thursday of the actual Thanksgiving Day celebration.

This is an example of how we take care of our clients – the little personal touches where you know we are paying attention to what really makes a difference to your family and your children – and helps preserve those family ties that are so precious for a child after a divorce.

If you already have an attorney, talk it over with him or her to see if this can be added to your temporary orders or decree of divorce. If you do not have an attorney, call me. I would be happy to speak with you about what can be done in your situation as a free telephone consultation.

*The Family Code say: (Section 153.314(3) ) In odd numbered years, the PC (Possessory Conservator, the parent or person who is NOT awarded primary custody of the child) is entitled to possession from 6:00 p.m. on the day the child is dismissed for Thanksgiving break until 6:00 p.m. on the Sunday after Thanksgiving. In even numbered years the SMC (primary Conservator, the parent or person awarded primary custody)

Next week I will write about a common sense way to eliminate the pain of Christmas without your children.