As you care for a loved one with autism, have you given serious consideration to your loved one’s future and the need for thoughtful and careful planning? The month of April is National Autism Awareness Month and this would be a great time to consider any estate planning you may need to do for your loved one with autism. At our firm we know that, depending on the severity of their autism, the specific needs of autistic individuals can vary greatly and often many people with autism need assistance throughout their entire lives.
As you care for your loved one with autism, when should you begin special needs planning? You should begin as soon as possible. As the caregiver for your loved one, one of your roles as a caregiver is to make sure there is a firm legal, financial and medical foundation in place.
Now, this type of special needs planning may be hard to begin and we understand that. In fact, you probably do not like to dwell on a time when you may not be here to provide care for your loved one yourself. We want to assure you that we work with families and the challenges they face each and every day and we can help you. Right here, let us share a few answers to questions you may have regarding special needs planning.
1. Is the authority to make decisions for my autistic child ever at risk?
Possibly, if you do not have any planning in place. When a minor with autism reaches the age of majority, (in California the age of majority is 18) he or she becomes a legal adult. In the eyes of the law, your loved one will be deemed an adult, even if his or her developmental, cognitive or mental disabilities are severe. In saying that, without planning you could lose your legal authority.
2. What happens if my autistic loved one cannot safely make decisions at this time?
Begin the special needs planning conversation with your California estate planning attorney by making a list of what your autistic loved one can and cannot do. In this list be sure to include medical, educational, financial, legal and vocational decisions. In addition, be sure to carefully assess his or her abilities to make rational decisions. For example, can your autistic loved one make choices related to self-care and is he or she able to communicate for himself- or herself. By discussing your list with your attorney you can both discuss what type of authority you will need as a part of the guardianship process.
3. My autistic loved one is able to make some decisions, can the court consider a less restrictive conservatorship?
Yes. The goal of the court for conservatorship is ensuring that your loved one is safe. As part of your meeting with your California estate planning attorney be sure to talk about conservatorship over your autistic loved one and the benefits and the burden of the same. A word of caution, though, in the future you do not want to be in a situation where a decision needs to be made that requires legal authority, and you do not have it.
4. Is it possible to have a backup conservator?
Absolutely! In your discussion with your estate planning attorney you will want to talk about your concern that if a time came when you could no longer handle the responsibility of your loved one, who will take over your conservatorship role? With your attorney, you can create the legal documents you need together with a letter of intent. This letter is a document that will give instructions to the conservator and trustees to use for any medical, financial and legal decisions once you are no longer able to act.
5. What is a special needs trust?
There are different types of special needs trusts that can be created for a disabled person. One of the most important benefits of special needs trust planning is it allows the disabled person to not lose access to key government benefits, such as Medi-Cal and Supplemental Security Income (SSI). As an example, if your autistic loved one inherits directly, without a special needs trust in place, he or she may be at risk of losing his or her benefits until the money received is spent down on his or her care.
The basic concept to follow in planning for a loved one with autism, 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.
We know this article may raise more questions than it answers. Our office is here for you and your loved ones. Please call us to schedule a meeting time.