Are you caring for a loved one with autism? Have you thought about the future of your loved one when you are no longer here? This may be hard to contemplate, but there is a need for thoughtful and careful planning for your loved one with autism. Because the month of April is National Autism Awareness Month, this would be a great time to consider any estate planning you may need to do for your loved one. It is a fact 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.
Now, 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. When should you begin putting this foundation in place? You should begin as soon as possible.
The foundation you will begin to lay is special needs planning for your autistic loved one. It is often hard to begin because you probably do not want to dwell on a time when you may not be here to provide care for your loved one. At our law firm we want to assure you that we work with families and the challenges they face each and every day and we can help you. We would like to share five tips in question/answer format in regard to special needs planning.
1. Is there ever a risk that I might lose my authority to make decisions for my autistic child?
Possibly, if you do not have any legal planning in place you could lose your legal authority. Be aware that in Florida the age of majority is 18. Therefore, when a minor with autism reaches the age of majority, 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.
2. What happens if my autistic loved one cannot safely make decisions at this time?
If your autistic loved one cannot safely make decisions, then you need to begin the special needs planning conversation with your Florida estate planning attorney. Start by making a list of what your autistic loved one can and cannot do, this list should include medical, educational, financial, legal and vocational decisions. Also, 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 him- 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. Would the court consider a less restrictive guardianship if my autistic loved one is able to make some decisions?
Yes. The goal of the court for guardianship is to ensure that your loved one is safe. When you meet with your Florida estate planning attorney be sure to talk about the fact that you are thinking about not proceeding to obtain guardianship over your autistic loved one. However, a word of caution: be sure to seek the advice of your attorney because 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 a backup guardian necessary?
Yes. You will want to talk with your estate planning attorney about your concern in regard to if a time came when you could no longer handle the responsibility of your loved one, who would take over your guardianship role? Your attorney can assist you in creating the legal documents you need together with a letter of intent. This letter is a document that will give instructions to the guardians and trustees to use for any medical, financial and legal decisions once you are no longer able to act.
5. What can a special needs trust do for my loved one?
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 Medicaid 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. By working with your attorney you will learn that there are different types of special needs trusts that can be created for a disabled person.
Remember that 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 Stuart estate planning law firm takes a very different approach from what you might have come to expect. Our goal is to create lifelong relationships with each of our clients, to guide and manage your legacy for the rest of your life. Please contact our office to learn more.