Parents of autistic children can face significant challenges. Depending on the diagnosis and the child, his or her assistance needs may vary. Once children with autism reaches the age of majority, however, they are legally in charge of themselves. Parents no longer have the legal right to make decisions for their child as they once did during their disabled child’s youth.
There are considerations related to disability and legal authority that parents of disabled children must consider early. As a parent you need to consider how much authority needs to be retained over your child. Autism is not black and white. Some people can make sound decisions in some areas but not in others. Parents should look to see how competent their child is in making medical, educational, financial, and vocational decisions.
Planning ahead for how your disabled child will be best protected as he or she becomes an adult is crucial. Let us share three key considerations to help you understand how to plan for your child.
1. Consider guardianship for your autistic child.
When any child reaches the age of legal majority, a parent no longer has legal authority to make decisions on his or her behalf. In the eyes of the law, even people with cognitive, mental health and or developmental disabilities are autonomous as adults. For those of us with capacity to make legal decisions, we can select an agent to act in our stead should we be unable to do so ourselves. If your autistic child does not have the requisite capacity to make estate planning documents such as a durable power of attorney, guardianship may be necessary. Guardianship is the court process of first finding someone not to have the legal capacity to make decisions and, second, naming a guardian to act in the person’s place.
2. Plan early for transfer of guardianship.
If a parent dies and has guardianship over his or her autistic child, there needs to be a plan in place to decide who will assume this responsibility. Without this planning, there can be conflict within the family or an absence of a person to care for the autistic child. In this instance, the guardianship court may choose someone the parents would not originally choose themselves.
3. Utilizing a special needs trust in estate planning.
It is important to meet early with your estate planning attorney to decide who will step into this role should the primary guardian be unable to act. A special needs trust is one of the planning tools we use to help families plan for the future. It 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.
We want to work with you to make sure that your child’s needs are met. Planning early for your autistic child is important to ensure he or she will be provided for both now and in the future. To schedule an appointment with attorney Alan Hougum to start this planning, do not wait to contact our office today!
