There are many legal considerations you need to make if you are planning for someone who has autism. You may want to avoid this topic due to the difficult challenges it forces you to face but you cannot wait to complete this planning. It is important to plan ahead for the long-term future of your loved one with special needs.
When someone with autism reaches the age of majority, which across the nation is between eighteen and twenty-one years of age, there are many changes that can take place. Did you know that even if the person with autism is extremely high on the spectrum or can barely function for himself or herself, a parent no long has the legal rights to make financial or health care decisions once the child is deemed an adult? Without proper planning, even someone with a significant developmental, cognitive or mental health disability is legally permitted to make decisions at the age of majority.
What should you do as a parent of a disabled child? For years, you have spoken to the school, to banks, financial institutions, doctors, specialists and so many more for your child. This has the potential of no longer being a legally viable option on your child’s eighteenth birthday. Since your child does not have the requisite capacity to make advanced directives, such as powers of attorney or health care planning documents, you need to consider creating a guardianship.
As guardian you will be able to maintain the authority to make legal decisions for your special needs child. The process of deciding whether or not guardianship is necessary can be difficult. Before speaking with your attorney, as the parent you need to assess all of the different areas in which a child may need assistance. This includes evaluating his or her medical, educational, financial, and vocational decision-making skills. In this situation, your child with autism may be able to retain specific control over some aspects of his or her life, but you, as the parent and guardian maintains the rest. This will be important to establish early on as the court in the guardianship of special needs children often encourages communication on what the child can do to create the right governance moving forward.
Your attorney with specific expertise in this area can be specifically helpful for guidance and decision-making. Your attorney will not only help you with the guardianship but work with you to ensure that your estate planning is comprehensive and up-to-date. You need to ensure your legacy will provide for your child should something happen to you. Planning ahead for a future where you are no longer here is extremely important. You do not want the person with autism to be left to his or her own defenses, or let the court make decisions through the intestacy process in the probate court.
A special needs trust can be set up for people with disabilities to ensure that money will be available for a person with autism throughout his or her lifetime. It can be used for a special needs beneficiary while not interrupting his or her ability to receive public benefits, such as Medicaid or Supplemental Security Income. There are two main types of special needs trusts. A Third-Party Special Needs Trust holds property provided by someone other than the person with autism. For example, a parent or grandparent can place money into the trust and then determine who the money is given to when the person with autism passes away. The second type of special needs trust, called a Self-Settle Special Needs Trust, is designed to hold property belonging to the person with autism. For example, if this person benefits from Medicaid, the funds will be placed in this trust. In this setting, there is almost always a payback provision for the public funds received by the disabled person in life.
People with autism deserve the best planning possible. The key is to plan ahead both for your loved one and yourself. If you know someone who has autism, be sure this person is legally taken care of. To schedule an appointment with attorney Donna Wilson to start this planning, contact our office today!