Were you aware that National Autism Awareness Month is in the month of April?  Do you have the responsibility of a loved one with autism?  Planning for this autistic person’s future is important and needs to begin with careful planning. Even though the specific needs of autistic individuals can vary greatly depending on the severity of their autism, 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. 

In our Wisconsin office we often work with families and the challenges they face in caring for family members with special needs, especially autism. We know how hard it can be to start this type of special needs estate planning, particularly when you have to think about a time when you may not be here to provide care yourself. So to help you start this process, we have some answers to questions you may have regarding special needs planning.

  1. Will I always have the authority to make decisions for my autistic child, even as they grow older?  Not without planning. When a minor with autism reaches the age of majority, 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 a 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? You should have a list of what your autistic loved one can and cannot do. You could also keep a daily diary or log of information.  This information could include 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 Wisconsin estate planning 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 adult child can make some decisions? Yes, the court can. The key to guardianship is ensuring that your loved one with autism is safe. Although you may be tempted not to proceed to obtain guardianship over your autistic child, we would encourage you to talk to your Wisconsin 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 Wisconsin estate planning 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 no longer able to act.
  5. What is a special needs trust?  There are different types of special needs trusts you can create for a person with autism. One of the main benefits of special needs trust planning is it allows the autistic person to not lose access to important government benefits, such as Medicaid and Supplemental Security Income (SSI).  If your 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 main thing to remember to follow in planning for a loved one with autism 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 Wisconsin estate planning attorney.

We know this article may raise more questions than it answers. We want to help you protect your aging relatives. We encourage you to contact us and schedule a meeting with attorney Alan Hougum today.