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Do you care for a loved one with autism? Are you working carefully to plan for your loved one’s future? You know that although the specific needs of an autistic individual can vary greatly depending on the severity of their autism, many people with autism need assistance throughout their entire lives.
So, how do you begin to create your Alabama estate plan with your loved one with autism in mind? Most important is to begin planning early. Whether you care for your loved one with autism 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 Alabama office, we work with families and the challenges they face each and every day. We know how hard it can be to start this type of estate planning, let alone to think about a time when you may not be here to provide care yourself. To help you start the planning process, let us share a few answers to questions you may have regarding Alabama estate planning for a loved one with autism.
1: Will I always have the authority to make decisions for my autistic child? You will if you plan now. 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 your 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? We encourage our clients to start by making a diary and/or keeping a log of what your autistic loved one can and cannot do. Your diary or log should include medical, educational, financial, legal and vocational decisions. In addition, 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 Alabama 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 child can make some decisions? Yes. The key to guardianship is ensuring that your loved one is safe. Although you may be tempted not to proceed to obtain guardianship over your disabled child, we would encourage you to talk to your Alabama 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? Absolutely! Then you should definitely discuss with your Alabama attorney who can take over your guardianship role when/if you can no longer handle the responsibility. With your Alabama 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: I have heard of a special needs trust, what is it? There are different types of special needs trusts you can create for a disabled person. A key benefit of special needs trust planning is it allows the autistic person to not lose access to key government benefits, such as Medicaid and Supplemental Security Income (SSI). If your autistic loved one inherits directly, without a special needs trust in place, he or she could be at risk of losing his or her benefits until the money received is spent down on your loved one’s care.
Remember, the basic principle to follow in planning for a loved one with autism is to ensure that 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 Alabama estate planning attorney.
We know this article may raise more questions than it answers. At the end of the day, estate planning and elder law planning are not just for you. Instead, it is for the ones you love most. If we can answer any questions for you on putting this estate planning in place, please do not hesitate to let us know. For more information, please reach out to our office and schedule a time to meet.