If you have the responsibility of a loved one with autism, the fate of this person’s future is in your hands. Planning for this person’s future is not a task to take lightly, or to begin without careful planning. Although the specific needs of an autistic individual can vary greatly depending on the severity of their autistic, many people with autism need assistance throughout their entire lives.
The key to planning for a loved one with special needs, is to to begin early. Whether you care for this person in your capacity as a parent, grandparent, or sibling, part of your role is to make sure there is a solid legal, financial and medical foundation in place.
We work with families and the challenges they face each and every day. We know how hard it can be to start this type of estate planning, let alone to think about a time when you may not be here to provide care yourself. To help you start this process, let us share a few answers to questions you may have regarding special needs planning.
1. Will I always have the authority to make decisions for my autistic child?
Not without planning. When a minor with autism reaches the age of majority (18 years old in California), he or she becomes a legal adult. Even if his or her developmental, cognitive or mental disabilities are severe, in the eyes of the law your child will be deemed an adult. Without planning, you will lose your legal authority.
2. My autistic loved one cannot safely make decisions at this time, what can I do?
We encourage you to start by making a list of what your autistic loved one can and cannot do. This includes medical, educational, financial, legal and vocational decisions. In addition, do not forget to carefully assess his or her abilities to make rational decisions, choices related to self-care and to be able to communicate for him or herself. This is the starting point of what you will share with your attorney as you begin to think about the authority you need as a part of the guardianship process.
3. Can the court consider a less restrictive guardianship since my child can make some decisions?
The court can. The key to guardianship is ensuring that your child is safe. Although you may be tempted not to proceed to obtain guardianship over your disabled child, we would encourage you to talk to your attorney first. You do not want to be in the situation in the future where a decision needs to be made that requires legal authority, and you do not have it.
4. Should I consider a backup guardian, just in case?
Yes, you should definitely discuss with your attorney who can take over your guardianship role when/if you can no longer handle the responsibility. With your attorney, you can create the legal documents you need together with a letter of intent. This letter is a document that will act as a roadmap for guardians and trustees to navigate medical, financial and legal decisions once you are not longer able to act.
5. What is a special needs trust?
There are different types of special needs trusts you can create for a disabled person. A key benefit of special needs trust planning is it allows the disabled person to not lose access to key government benefits, such as Medicaid and Supplemental Security Income (SSI). If you’re autistic loved one was to inherit directly, without a special needs trust in place, he or she could be at risk of losing his benefits until the money received is spent down on his or her care.
The basic principle to follow in planning for a loved one with autistic or any special need is to ensure he or she has enough support throughout the remainder of his or her life. Ensuring your loved one is taken care of, even when you can no longer be there to assist, is critical. Do not wait for a crisis to plan forward with your estate planning attorney.