Barry Fierst is a lawyer who specializes in estates and trusts for persons with disabilities and their families. In this profile, get a glimpse at his career path and a dose of advice on estate planning, guardianship, public benefits, and more.
Tell us about yourself.
I am fortunate to have had many diverse experiences in my life. However, I had very little contact with persons that have disabilities, until my field placement for my Masters in Social Work. I was already in my late 20’s. The professor for the field placement program (at the University of Maryland School of Social Work) suggested (because it was close to my home) that I interview for a position at the Regional Office of the Mental Retardation Administration (“MRA”) of the Maryland Department of Health and Mental Hygiene, located at the Great Oaks Center in Silver Spring, MD.
I had not known anyone personally with “mental retardation,” but during the interview with my potential supervisor, we realized that we knew a number of people in common – and he seemed like he would be a good supervisor. So I took the position.
A lot has happened since that time, thirty-five years ago. The MRA name changed its name to the Mental Retardation and Developmental Disabilities Administration and subsequently to just the Developmental Disabilities Administration. Great Oaks Center, which was a state institution for persons with disabilities, was closed almost twenty years ago.
After I completed my MSW, I worked for (what was called then) Ardmore Developmental Center, in Mitchellville, Maryland, for their sheltered workshop and later as director of their residential program. I was subsequently hired as the executive director of the Jewish Foundation for Group Homes (JFGH), providing residential services to persons with developmental disabilities in the Washington, DC metropolitan area. While at JFGH, I went to law school at night. My last day at JFGH was the day of my graduation from law school.
What led you to a career in law, with a specialization in persons with disabilities and their families?
There are lawyers in my extended family and as long as I can remember, I wanted to be a lawyer. But for a variety of reasons, my life and early career put off going to law school until my late 30’s. In a way, putting off law school was beneficial, as in the interim, I learned and worked in the disability field.
While at JFGH, I was asked by the Board of Directors to send a questionnaire to the parents of our residents, asking them if they had done future planning for when the parents could no longer advocate for their child and ask if they set aside funds for the benefit of their child. The Board and I were shocked at the responses. Few had done any future planning. Thus, I knew what my niche would be when I finished law school. My law practice concentrates on working with families that have a child with disabilities.
We'd love to hear some eye-opening moments you have had in this area of work.
My eye-opening moments: Some parents educate themselves about public benefits already within months of a child’s diagnosis...
But the eye-opener is when I meet with parents that have a child approaching eighteen years old with autism, or another developmental disability, and the parents have no clue about Supplemental Disability Income (SSI) or Medicaid. Or they have not filed an application for services with the Developmental Disabilities Administration.
Another eye-opener: We have parents come to our office, when a child is in his or her 20’s, who ‘home schooled’ their child and seek access and eligibility for a vocational program for their child. I have to tell them it may be too late: The “Transitioning Youth” program, of the Developmental Disabilities Administration, is only for persons who apply within one year after aging out of the school system. If you miss the deadline, you can get services only by proving that you are in crisis. Too many people miss the deadline.
The biggest eye-openers, however, are the obstacles that the Developmental Disabilities Administration puts up for access and eligibility.
What legal issues are especially pertinent to the autism community?
The legal issue that concerns all parents is the estate plan and how to leave assets for their children. For parents of a person with autism, the concern is (1) management of an inheritance and (2) ensuring that the inheritance does not impact qualifications for public benefits. Usually, that means distributing the inheritance to a proper special needs trust. The next concern, and question, is who should be the trustee of the special needs trust. The question must be given significant thought and the answer may be different for each family.
What advice or best practices do you have for the immediate family of individuals on the autism spectrum, particularly when it comes to guardianship and estate planning?
Guardianship may, or may not, be appropriate for a person on the autism spectrum. I recommend meeting with an attorney that has experience in guardianship procedures and having a discussion of the benefits – and pitfalls – of guardianship. It is not appropriate for all persons on the spectrum.
On the other hand, proper estate planning is essential. Without proper estate planning, you would ultimately be unduly benefiting the government instead of your family.
What was the proudest moment of your career?
I am fortunate to have had a number of proud moments in my career. One that sticks out, however, was a lawsuit that I filed against the Developmental Disabilities Administration (DDA) regarding access and eligibility for a person on the autism spectrum. DDA denied access and eligibility, stating that the person had a diagnosis of obsessive compulsive behavior (OCD) and that OCD was a mental illness, not a developmental disability. We litigated the matter and, after expert witnesses testified that the OCD was just one of the manifestations of this person’s autism, the judge ruled in our favor and directed DDA to fund services for him.