If you are the parent of a child with autism, estate planning comes with some specific and often difficult decisions. Depending on your child’s independence, you may have to plan to physically and financially provide for your child well into adulthood and provide financially after you have passed away. Understanding these unique considerations helps ensure your plan is comprehensive and offers the best outcome for your child and your entire family.
Your Child is an Adult at 18
In the eyes of the law, your child will be considered an adult at age 18. This means that your child will have all the responsibilities of being an adult, regardless of their level of physical and financial independence, to handle adulthood’s aspects. Further, when your child turns 18, you will no longer be able to act on their behalf as their parent, including accessing their bank account, speaking with doctors and other medical providers, and speaking and obtaining records from educational institutions. You may also have difficulties accessing necessary medical records and making medical decisions on their behalf.
To continue making decisions on behalf of your adult child, you will need to establish a guardianship.
What is a Guardianship?
A guardianship is a legal proceeding in the probate court with the county where your adult child lives, determining whether your child can handle their personal and financial affairs. Guardianship will allow you to continue making decisions for your adult child and access their bank account, obtain medical records, speak with medical providers, access educational records, and take any other actions necessary to care for your child properly.
Something to prepare for with guardianship: to maintain guardianship, you must file an annual accounting with the probate court listing all the assets and expenses incurred during the past year on behalf of your adult child.
What About Estate Planning?
Many families struggle with deciding how to distribute their assets and property at death when they have a child with autism. This can be even more difficult if your child is unable to provide for themselves and is receiving government assistance benefits.
This creates an important legal issue if your adult child receives an inheritance. An inheritance could make your adult child ineligible for government assistance benefits they may be receiving. One way to work through this problem is with a Supplemental Needs Trust.
What is a Supplemental Needs Trust?
A Supplemental Needs Trust (“SNT”) is a trust that provides for your child’s ongoing needs while supplementing, but not replacing, any government benefits your child may be receiving. Establishing an SNT ensures the inheritance you leave behind for your child remains in a trust but does not make them ineligible for government assistance benefits. When setting up the SNT, you will name a trustee—another adult child, a family member, or even a financial institution—to manage the trust after you have passed away for the duration of your child’s life.
Estate Planning and Establishing Supplementals Needs Trusts with Wood + Lamping
An SNT is a very important legal tool for parents of a child with autism and can give you the peace of mind that your child will be cared for after you’ve passed away. By stating in your will or trust that the share of your child’s inheritance goes into an SNT instead of to the child directly, you can ensure that your adult child is always provided for without interfering with any government benefits your child receives.
If you are the parent of a child with autism approaching age 18, start the planning process soon. Completing the legal aspects before your child turns 18 will make the process simpler. For more information and legal assistance in establishing an SNT in your estate plan, contact the experienced Estate Planning attorneys at Wood + Lamping.
