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Special Needs Planning Tips During Autism Awareness Month

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Did you know that April is Autism Awareness Month? Do you have a loved one with autism?  Planning for your loved one’s future is very important. 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. 


Without a doubt, the most important part of planning for a loved one with autism is to begin early. Whether you care for your loved one 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 law office we work with families of special needs loved ones and the challenges they face each and every day. We know how hard it can be to start this type of estate planning, and we know it is hard to think about a time when you may not be here to provide care yourself. To assist you in starting this process we would like to share a few answers to questions you may have regarding planning for your autistic loved one.


1.     Will I always have the authority to make decisions for my autistic child? Not if you do not plan ahead. In Florida 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 recommend that you start by making a list of what your autistic loved one can and cannot do.  This includes medical, educational, financial, legal and vocational decisions. You may, in fact, want to create a daily log or diary of all the activities, appointments and recreation that you and your loved one do. 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 Florida estate planning attorney as you begin to think about the authority you need as a part of the guardianship process.


3.       Is there a less restrictive guardianship that the court could consider since my child can make some decisions?


Yes, the court can. 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 autistic loved one, we would encourage you to talk to your Florida estate planning 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?  Yes, you should definitely discuss with your Florida estate planning attorney who could 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? Should I look into one for my loved one with autism? There are different types of special needs trusts you can create for an autistic person. A major benefit of special needs trust planning is it allows an autistic person to not lose access to key government benefits, such as Medicaid and Supplemental Security Income (SSI).  If your autistic loved one was inherited 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 his or her care.


Finally, the main principle to follow in planning for a loved one with autism, or any special need, 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 Florida estate planning attorney


We know this article may raise more questions than it answers.  Our office is here to help you navigate the legal issues related to seeking and covering the cost of memory care. We encourage you to contact us and schedule a meeting with our attorneys.

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