Wednesday, October 27, 2010

Preparing For Your Death

As Halloween is fast approaching, I thought that I would post about a rather morbid topic--preparing for your death.  Now we all know that death is inevitable, but we don't like to think about it.  However, it is really important that we have our plans in order so that our loved ones don't have to make these decisions for us while they are grieving.  So, I have prepared this list of a few of those things that we must all do in order to prepare for our deaths.  But remember, this type of a checklist can only be effective if we do those items on the list and if we put the completed checklist in a place where our loved ones can find it after our death.

1. Prepare a will.  I have previously posted on the importance of having a will, so see this post for more information about why a will is necessary.

2. Decide whether you would like to become an organ donor.  Organ donation can save many lives as well as enrich many lives, however, it is an intensely personal decision.  It is important to make this decision as early in life as possible, as we never know what may happen to us.  It is even more important to tell our family members of our decision and to memorialize the decision on our driver's licenses.

3. Decide whether you would like a funeral or a memorial service, and plan the service.  In essence, the difference between the two is that the body is present for a funeral and is not present for a memorial service.  A service typically involves use of poems or scripture, songs, and eulogies.  There are many websites available that assist in deciding what to songs, poems, and scripture to use.  Funeral directors as well as clergy can also be useful resources, as they have experience in planning these services.  However, remember that the service will be about you, so your preferences should be key.  The service can be very traditional or can be very unique.

4. Decide whether you would prefer burial or cremation.

5. Choose a funeral home.  Choosing a funeral home can make a world of difference for the family of the deceased.  It is important to focus not only on the cost, but also on the staff of a funeral home.  If they are easy to work with, professional, and kind, it will make the experience much easier for family.

6.  Keep copies of your will, living will, durable power of attorney, insurance policies, your checklist of wishes, funeral plans, and other important documents together in a fireproof safe where your loved ones are able to find it.  In the age of Internet, it is also wise to keep a list of your email and other online accounts with user names and passwords so that these accounts can be closed.

There are books and articles written on planning for death that are much more extensive than this post.  One that I have not read, but which seems to be well received is Death for Beginners.  A review of the book can be found here.

Obviously this list is not comprehensive, but instead is meant to get you thinking and planning for the eventuality of your death, so that it will be easier for your loved ones.  Please feel free to add additional items in the comments to this post, or to e-mail me.

Update 11/01/2010: This morning, I saw this interesting post about options for your body after death besides the traditional burial or cremation.

Tuesday, October 12, 2010

A couple of interesting stories about South Dakotans

Hi everyone! I know that this is a bit different than my previous posts, but I just wanted to share a couple of clips about some very interesting South Dakotans. I found these stories compelling, and hope you will, too.

Hope you enjoy!

Friday, October 8, 2010

Exceptional Pardons & Expungement of Convictions

After my previous post on expungements of arrest records and court files when charges have been dismissed or trial results in acquittal, I have received inquiries about whether South Dakota permits expungement of convictions. My initial answer was no, South Dakota law does not provide for expungement of convictions. However, after a bit more research, I have found that there is an additional procedure which may accomplish some of the same goals as expungement of a conviction, but which has several restrictions on its use--an exceptional pardon.

Exceptional pardons are considered "executive clemency" and are governed by SDCL Chapter 24-14 and ARSD 17:60:05. According to the South Dakota Board of Pardons and Paroles Executive Clemency Application, "[i]f it has been five years since your release from a Department of Corrections facility, and you have only been convicted of one felony, and your only felony was not punishable by life imprisonment, you are eligible for an Exceptional Pardon."

Once an individual receives an exceptional pardon, the records relating to that conviction are sealed, meaning that no one can look at the file without an order of the court. However, the exceptional pardon itself is maintained by the Secretary of State's office, and is a public record open to inspection for five years after the pardon is granted. After five years, the exceptional pardon document is also sealed. Immediately upon the granting of an exceptional pardon, the individual cannot be prosecuted for perjury for failure to disclose the conviction, arrest, information, indictment, or trial on the pardoned offense. Court files, from other types of executive clemency (i.e. anything other than an exceptional pardon), are not entitled to be sealed.

There are several documents that must be received by the Board of Pardons and Paroles to consider a request for an exceptional pardon:
- The completed Executive Clemency Application (with questions answered fully or with "N/A").
- The completed Notice to State's Attorney form.
- The completed Executive Clemency Application Release of Information.
- Letters of recommendation (referencing that the letter writer is aware that the applicant is seeking executive clemency) from minister, former & present employers, reputable persons in the community, family and friends are strongly encouraged, although not required. If the applicant does not include letters of recommendation, an explanation is required.
- A psychosexual evaluation (for sex offenders only).
- A chemical dependency evaluation (for those convicted for drugs and alcohol only).
- A psychological evaluation (for those with diagnosed mental health issues only).
- Proof of payment of court costs, fines and restitution for each conviction.
- A Department of Corrections Discharge Certificate.
- Certified Copy of Sentence and Judgment.
- Proof of Service on each State's Attorney.
- Written statement of the applicant describing the crime/incident.
- Letter of personal plea from the applicant.

It is possible for an applicant to submit these materials pro se (without being represented by an attorney). However, consulting with a criminal defense attorney is wise, as that individual will have experience in handling these types of applications, and can advise the applicant as to the likely merits of the application and how to best posture the application (i.e. whether certain letters are helpful, whether the applicant should seek treatment, counseling, etc.).

Whether the applicant chooses to apply pro se or chooses to seek the assistance of an attorney, it is wise for the materials to be presented in the most coherent and organized fashion as possible. Having the documents put into a binder or binding the application is a good idea, so that materials cannot be separated and lost. Using tabs and separating pages is a great idea, so that the Board is able to easily find the documents that they are looking for.

Tuesday, October 5, 2010

Children of Incarcerated Parents

I'm currently appointed to represent several children in abuse and neglect proceedings. Among my clients are children of parents who are currently incarcerated and children of parents who have been incarcerated at some point in their lives. So when I saw this post on the Freakonomics blog of the New York Times, stating that 1 in every 28 children in America has a parent behind bars, I was really intrigued. Intrigued that incarceration of parents affects so many children, and intrigued to find out what kind of impact that has on those children. It also made me start thinking about what parents do with their children when they are looking at either long or short term incarceration; and how are those children's needs being met when their parents are not earning an income during incarceration, or are only earning an income sufficient to buy cigarettes and candy.

According to at least one source, the number of incarcerated individuals has grown every year for the last 36 years. According to another source, more than one in every 100 adults in the U.S. are incarcerated in either prison or jail. 63% of those who are in federal custody and 55% of those who are in state custody are parents of a child under the age of 18 (a different source states that 54% of all inmates have children between the ages of 0 and 17). This means that over 1.5 million children have a parent who is serving a prison or jail sentence; that's approximately 2% of American children. Of those children with incarcerated parents, 22% are under the age of five; and their average age is 8 years old.

What does it mean for children to have an incarcerated parent? Financial instability, family relationship instability, school performance and behavioral issues, and stigma (see this). Some of these issues, especially financial instability, continue long after the parent is released from custody. This is because "[i]ncarceration reduces former inmates' earnings by 40 percent and limits their future economic mobility," according to a Pew Report (the full report and a summary). In addition, incarceration not only negatively impacts the inmates upward economic mobility, but also the economic mobility of children of inmates.

So what do parents do with their children when they are going to prison or jail? Typically, parents make arrangements with a family member or close friend to care for the children while they are incarcerated. This appears to usually be done informally, either with nothing in writing, or a power of attorney written by the parent. It appears that parents and those who care for the children of incarcerated parents do not typically go through a formal guardianship process, although this is highly recommended. A formal guardianship, including a temporary guardianship, provides stability and certainty to the relationship. A guardianship means that the child's caretaker will be given access to information about the child and will be able to make medical and other types of decisions regarding the child without any delay or uncertainty.

How are children's needs being met while a parent is incarcerated? South Dakota law requires parents to pay child support for their children, even while incarcerated. If the parent's income is below minimum wage, or even zero, the parent is presumed to be capable of full-time employment at minimum wage. This means that child support is calculated based upon that full-time employment at minimum wage for an inmate, unless there is physical or mental disability. However, where the inmate makes just a few dollars per day, they are likely to not be able to meet the child support obligation and will come out of prison or jail with a large amount of child support arrearages. This also means that the state often must get involved and provide benefits to support the child.

There are resources available to help those who are dealing with the incarceration of those with children. See these free publications if you are in this type of a situation or may be at some point. In addition, an attorney can be really helpful in setting up a guardianship, obtaining child support, or even just helping you know what you need to do.