Without a proper plan, your child with autism may face an uncertain future after you are gone. Chitra Iyer, Treasurer and Trustee, Forum for Autism, spells out reasons why it is absolutely necessary for parents to prepare a Will. While this may apply to various disabilities, the focus for this article is mainly on children with autism and keeps in mind the legal requirements in India.
- What if something were to happen to me tomorrow, how can I ensure that my child with Autism who is now an adult is well taken care off?
- How will I know that my money that I have set aside and have accumulated over the years will be used for my child for his needs, for his comfort?
- Can I tell people what I want and how I want my money to be used for my child after I am gone? Can I tell them who should take care of my son? How should he be taken care off?
- Can I protect my wealth for my child and only for his needs without anyone else encroaching on it after I am gone?
These are some of the fears that every parent of a special needs child always has at the back of his or her mind.
It is through a written WILL that a special needs parent can address most of these fears and feel a little assured about the most important duty towards their child as being addressed.
Why should a parent of a child with Autism prepare a WILL?
- A proper Will lists down all the assets and liabilities that you own or owe based on documents to prove your ownership that is being WILLED to the next generation.
- When you want your assets to be clearly used to look after your child you need to write very clearly about how the assets need to be used so that he or she is well looked after.
- Ensuring that what you own goes to the correct person, that is, for your child with disability or to the guardian of your disabled child or a trust for your disabled child can be done through a WILL. If this is not clearly written in the WILL and left to chance we have come across enough instances where relatives or others miscreants have claimed right to the assets and stalled the entire process of flow of assets to the lawful inheritor.
- The WILL helps you write down who should be the executors and who should be the beneficiaries of your wealth. You can also write down who will replace whom as guardians or as beneficiaries in the WILL. When you have more than one child and you have other family members to whom you wish to leave your assets the WILL helps you clearly right down to whom you wish to vest which portion of your wealth.
- You can be specific about who you wish - either a specific family member or a residential centre or a care giver or a friend - to take care of your child. This should be done lawfully as required. Otherwise, in absence of clear instructions the law will have to take its course to decide who should take custody of your child.
You could take a lawyer’s help to draw up a WILL, especially if you are anticipating any problems in the care of your special needs child. Writing a WILL is actually very simple. You can use a format of a WILL to write one and get it signed by two witnesses. It is an absolute MUST and should be considered as a priority that you owe to your child!!!
Every parent should create a will. Why is the need for children with special needs greater?
In order to protect the interests of the person with disability ...and to ensure they get their share of the inheritance, it is imperative the parents write a Will. Autism being a disorder with some social and cognitive deficits, all persons on the spectrum may not have the skills to navigate legal and financial issues independently and make decisions that protect self-interests in these areas.
Is a guardian always required?
Although legally one does not need to take guardianship post turning 18, the National Trust Act for CP, Autism and MR in India provides for us to take guardianship to take decisions on behalf of the adults with challenges.
Why this was introduced could be understood with some examples below (though may not apply to all in a lifetime, it is more of a good to have rather than not to have.)
As parents if and when we need to take decisions for e.g.
- In a hospital to sign on a surgery form as guardian
- At a police station in case of an accident it becomes necessary (we had a case where a flower pot was accidentally pushed off a higher floor by a challenged Autistic person. A person walking below was badly hurt. The police nabbed the Autistic adult, who the parents could prove they were guardians to and the parents could do the talking on his behalf)
- The need to take decisions on residential options when the adult with autism needs to live in a home
- Sign on documents that are needed financially or for government identification
Is there something in the default inheritance laws in India which exclude children with disabilities?
Generally No. But once assets are passed on by way of inheritance, the guardian of the special needs person is required to have been appointed to manage them on his/her behalf... this can be detailed in a WILL.
(Chitra Iyer is a mother of 18-year-old happy go lucky Shravan who has autism. She has been associated with the Forum For Autism, an NGO and a parent support group for children since the year 2002. She is also a Trustee and Treasurer of the Forum for Autism. www.forumforautism.org
She is a Cost Accountant and Certified Financial Planner with 20 years experience in the Financial Services Sector.)
