Ensuring quality of life for a loved one with autism requires a care plan with a sound legal and financial foundation. The purpose of a special needs estate plan is to ensure the economic security and ongoing well-being of your family member, even when you’re no longer able to assume that responsibility.
A special needs estate plan should address:
• Guardianship-Guardianship is a potential issue at three points throughout your child’s life: while a minor, upon reaching the age of 18 and upon your death. During childhood, who would assume parental obligations in the event that you could no longer do so? Then, upon reaching the age of 18, will your child be in a position to make important legal, financial and educational decisions? If not, you will need to consider whether or not to establish yourself as legal guardian (in some states, referred to as a conservatorship for persons over 18) in order to continue to provide such assistance. If you do assume guardianship of your child once they legally become an adult, you will also need to name someone to take on those responsibilities upon your passing.
• Benefit Assessment – The financial security of many individuals with autism depends upon such public benefits as Medicaid and Supplemental Security Income (SSI). Based upon the services that your family member will require throughout life, a special needs attorney can help you determine eligibility for government assistance. Then, with the help of a financial advisor, you can establish savings and investment goals in order to provide additional funds needed to support the lifestyle you envision.
• Special Needs Trust (SNT)– In order to qualify for certain government benefits, an individual with disabilities must meet stringent standards for financial need. If your child will be dependent upon such public programs for medical care, housing, employment assistance or other services, you will probably wish to supplement the very basic levels of support provided. Assets that are held by SNTs are not considered by the government when evaluating applications for means-tested programs. In addition, an SNT is a good tool for ensuring that the assets set aside for an individual with disabilities are managed responsibly and not subject to creditors. There are several types of SNTs, depending upon who funds them and how they are administered. To learn more, click here.
• Letter of Intent (LOI)– While not a legal document, the letter of intent is essentially a roadmap providing guidance to guardians, trustees and others on how to care for your child when you are no longer able to fill that role. It includes medical, financial, legal and personal details, as well as your intentions concerning your child’s lifestyle. To learn more about LOIs, click here.
• Powers of Attorney – If guardianship is inappropriate for your adult child, you may wish to consider less intrusive alternatives that name agents responsible for specific types of decision-making. To learn more about healthcare proxies, financial powers of attorney and educational powers of attorney, click here.
• Will – A will details your wishes concerning the disposition of your property upon death. It establishes what portion of your estate should be allocated to your child with disabilities and other heirs, and whether or not certain funds should be held by an SNT.
While there’s no such thing as a perfect plan, doing nothing is almost certainly a bad plan. The point is to create a flexible plan that can—and will—change over time to reflect events in the lives of all involved.
To locate a special needs attorney near you, click here.