If you have a child with autism, planning for the future can be daunting – but it is necessary to ensure a successful life for your autistic child after you are gone. As a parent of a child with autism, you are likely concerned with financially providing for that child, as well as making certain they are taken care of and that your death does not compromise the child in any way other than the obvious emotional impact losing you will have. With proper planning and legal documents in place, your goals of providing protection and security for your child with autism can be achieved.
Estate planning not only plans for what will happen with your assets once you are gone, but it also plans for how matters are to be handled in the event you can not take care of them yourself but are still alive.
Most parents of children with autism require the following legal documents: 1) Power of Attorney; 2) Healthcare Directive; 3) a Will and/or Trust; and 4) a Supplemental Needs Trust.
Power of Attorney and Healthcare Directive
A Power of Attorney and Healthcare Directive names who will be able to manage your finances and make your medical decisions in the event you are unable to do so yourself. For parents who are caring for children with autism, this can be particularly important. Both documents allow for your affairs to be managed in an easier and smoother manner if something unexpected happens. Having a Power of Attorney in place allows you to name who will be able to manage your finances. If you are also managing the finances and/or care of a child with autism, having this document in place will also benefit them. A Healthcare Directive allows you to name who can make medical decisions on your behalf, and also communicates what your wishes are regarding healthcare decisions. These documents can make difficult times easier for families as a whole.
Will and/or Trust
Parents of children with autism should have a Will and/or a Trust in place to plan for what will happen with assets after they die. These documents names beneficiaries and how you would like your estate to be distributed. If you have a Supplemental Needs Trust in place, this document is necessary to direct assets into the Supplemental Needs Trust. You can also name who will be responsible for managing your affairs after you die by appointing the Personal Representative and/or Trustee.
Perhaps most importantly, you are able to nominate who you want to act as Guardian(s) of your children if you die. Without a legally binding document in place, this decision may ultimately be left up to a judge in a guardianship proceeding. Parents of children with autism may have additional concerns regarding care of their child, requiring additional planning in this regard.
Supplemental Needs Trust
A Supplemental Needs Trust is one of the most critical documents when it comes to estate planning for parents of children with autism. Many parents do not realize that leaving money outright to their autistic child may cause more harm than good. Government benefits (such as Social Security Income (SSI) and Medical Assistance (MA) are oftentimes asset and/or income dependent. Leaving money to a child receiving such benefits may invalidate their eligibility, and all the money inherited must then be spent down before they can reapply. This can be an unnecessary hassle, and also compromise the child’s quality of life.
Instead, parents can establish a Supplemental Needs Trust through which the money is administered for the child. Parents can name an individual (Trustee) who will be in charge of managing and administering the assets. The money can be used to supplement the benefits being received for the lifetime of the child. When the child dies, the assets can pass to a backup beneficiary, named by the parents. This approach not only preserves the family assets, but can also provide for an enhanced quality of life for the child with autism. It is important to note that a Supplemental Needs Trust should be established earlier rather than later as it cannot be established after the parent(s) are deceased.
Estate planning with special needs children in mind is relatively complex, and this article only addresses the basics. It is important to consult with an attorney as there may be additional concerns to address and documents needed. With proper and mindful legal planning in place, you will be able to plan for the long-term protection and security of your child with autism, even after you are no longer around to help with their care. Schromen Law, LLC is a proud sponsor of Autism Speaks, and offers free initial consultations to parents of children with autism to discuss their unique needs, goals and questions.
The material contained herein is for informational purposes only, and is not intended to create or constitute an attorney-client relationship between Schromen Law, LLC and the reader. The information contained herein is not offered as legal advice and should not be construed as legal advice.
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