Scenario: With her autistic son turning 18 in just three months, Sarah was caught off guard by how quickly the legal landscape was changing—soon, her son would be considered an adult with full control over critical decisions. Determined to protect his future, Sarah started exploring guardianship, special needs trusts, and financial planning to ensure he'd have the care and support he needed to thrive. But in a word, she felt LOST!

Becoming an Adult

As your autistic child approaches adulthood, you may be wondering what legal, financial, and personal steps you need to take to ensure their continued care and support. When your child turns 18, they are legally considered an adult, and this transition can bring new responsibilities and challenges. Here's a simple guide to help you navigate the process and plan ahead.

1. Consider Guardianship or Alternatives

When your child turns 18, they gain legal control over their decisions, including financial, medical, and personal matters, regardless of their condition. Stated differently, everyone who turns 18 is presumed to be competent. If your child is not capable of making these decisions independently, you might want to consider legal guardianship. Guardianship allows you to continue making critical decisions for your child, but it also involves a court process to establish your role as guardian. However, legal guardianship is a very restrictive approach to surrogate decision making, so you may want to consider less restrictive approaches.

Some less restrictive alternatives to guardianship, include:

• Power of Attorney (POA): Your child can voluntarily give you authority to make decisions for them by signing a POA for financial and medical concerns, but this requires your child to understand and agree to the arrangement.
• Supported Decision-Making (SDM): SDM is a relatively new approach to surrogate decision making and serves as an alternative to guardianship. This option allows your child to make decisions with help from trusted individuals, without removing their legal rights. There is no statutory basis for SDM in New Jersey (at least not yet), but there is case law and the general public policy of New Jersey that generally supports this approach. Some states do in fact have laws that allow for SDM.

2. Create a Special Needs or Supplemental Benefits Trust

To protect your child's financial future, consider setting up a Special Needs or Supplemental Benefits Trust. This allows your child to receive financial support without jeopardizing their eligibility for means-tested government benefits like Medicaid and SSI. Any assets left in a will or life insurance policy can be transferred to the trust to ensure long-term care for your child. However, the will must provide for this take place, otherwise the Trust cannot be funded as intended.

3. Set Up a Financial Plan for Long-Term Care

In addition to a Special Needs or Supplemental Benefits Trust, creating a long-term financial plan can help ensure that your child's needs are met well into the future. Work with a financial advisor who has experience in planning for individuals with disabilities to explore funding options like ABLE accounts, life insurance policies, and savings plans that will benefit your child while protecting their eligibility for benefits.

4. Seek Legal and Financial Advice

Turning 18 brings many legal and financial considerations, so consulting with professionals who specialize in special needs planning is essential. A lawyer familiar with special needs law can help guide you through guardianship, trusts, and estate planning options. A financial advisor can help you plan for your child's financial security in the long term.

Final Thoughts

When your autistic child turns 18, it can feel overwhelming to navigate the legal and financial changes. However, with careful planning and support, you can ensure that your child has the resources and protections they need to thrive in adulthood. Take the time now to assess their needs, make legal arrangements, and explore all available resources to create a secure and supportive future. The struggle between protecting your child and allowing them as much autonomy as possible is one that all parents with a special needs child must weigh and balance.

As always, navigating legal matters can be complex and requires the guidance of competent legal counsel to protect your rights and interests. Don't leave important matters to chance—retain reliable legal counsel to guide you every step of the way!