May 15th, 2018
If you have a child with autism or are responsible for a loved one with autism, it is important to plan ahead for his or her long-term needs. There may come a time when you are no longer able to provide the necessary care. When you work with your attorney to create an estate plan that includes special needs planning, you can ensure your loved one will be protected in the future.
We know how confusing the legal process can be and want you to have all the necessary information to make informed decisions. Let us share a few of the frequently asked questions we hear from our clients to help you plan for your loved one with special needs.
1. Will I always be legally in charge of my child with autism?
No. Even someone with severe developmental, cognitive and/or mental health disabilities are technically legally permitted to make decisions as soon as they reach the age of majority.
2. Can I obtain guardianship and conservatorship of my child with autism?
Yes. First, assess what aspects of life your child could potentially maintain control over. This includes medical, educational, financial, and vocational services. You also need to evaluate if he or she is able to manage self-care and safety issues. Once you determine what your child is unable to manage on their own, you should discuss obtaining a guardianship and/or conservatorship for your adult child. A guardianship allows you to manage medical decisions for your child, and a conservatorship allows you to help your child with managing their financial and legal affairs.
3. Do I need a lawyer to help me obtain and maintain guardianship and conservatorship of my child?
Technically, no. Your attorney, however, knows the ins-and-out of this process. He or she is able to provide ongoing guidance, support and advice throughout the lifetime of the guardianship of your disabled child.
4. If my spouse or I die while still the legal guardian of my child with autism, what happens?
This is something you can plan for in advance with your attorney. While your disabled child and selected family members may need to go to court, your attorney will be able to help you navigate this process. Plan ahead for this situation by naming your preference of potential secondary and tertiary guardians, considering who is best to make healthcare or financial decisions. Your wishes stated in a legal document will be taken into consideration if a new guardian or conservator has to be named.
5. Can I financially plan ahead for my child with autism?
Yes! There are specific types of trusts that exist for disabled children. The first, a Third-Party Supplemental Needs Trust, allows you or another third-party, such as a grandparent, to place money into this trust and protect it for their long-term future. The second, a Self-Settled Supplemental Needs Trust, provides protection for the money of the child with special needs. In both of these instances, the disabled child is still able to receive public benefits such as Medicaid and SSI.
We know this planning can be difficult to navigate and discuss. Let us help you plan for yourself and your disabled child. If you have questions or need more information regarding long-term planning for your autistic child or a child with other special needs, please do not hesitate to contact us.