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Autism awareness month: Conservatorship or power of attorney?

On Behalf of | Apr 23, 2019 | Caregivers, Guardianships & Conservatorships, Powers Of Attorney |

When an adult child or other loved one is on the spectrum who handles his or her finances The answer cannot be the same for each family or individual.

Generally, two legal approaches exist. In the first, the court may appoint a conservator to handle financial affairs. The second option is a financial power of attorney, but capacity may become an issue. A nuanced and tailored strategy should account for individual abilities. It is also crucial to have a plan as teenage children approach adulthood.

Navigating the real world

Hannah Gadsby, an Australian comic, recently shared about her autism diagnosis. Her framework involves looking at autism as human variations rather than a condition to cure. Of autism, she says, “It’s not autism that makes it difficult to live with autism. It’s the world we’ve created that is not geared in our favor.”

The autism spectrum includes those who are math geniuses and can take care of their finances. But loved ones might worry that their autistic family member is a lamb among wolves without the ability to spot scam artists.

If a loved one is competent, he or she could execute a power of attorney naming someone (an agent) to make certain financial decisions. This is likely the best way to avoid losses rather than simply opening a joint account.

Incapacity and SSI benefit eligibility

Colorado statute defines an incapacitated adult as someone who “is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety or self-care, even with appropriate and reasonably available technological assistance.” A diagnosis on the lower function side of the spectrum might fit this definition. For example, a difficult to handle autistic 20-something with anxiety and depression may be appointed a guardian for housing and care decisions.

Another person, such as a trusted relative or a professional fiduciary, would likely be appointed to manage finances, especially in cases where the individual inherited money or received a settlement in a lawsuit. Tied in with these responsibilities is learning about asset limitations and how funds need to be held to avoid losing eligibility for government benefits.

Because each family has different needs, it is dangerous to go with a boilerplate form. Speak with a special-needs attorney to develop a tailored plan that protects a loved one without being unduly restrictive.