When Do You Need To Hire a Lawyer?

Just for the basics

I blocked out this summer to write a book for parents about everything they should know about life after high school for their neurodiverse students. I’ve got an intro and four chapters, about 25,000 words. The book should have 11 chapters or 60,000 words, so I’ll be busy for the next two months.

The writing is going mostly smoothly. This is a topic that I know backwards and forwards. But writing a book requires uninterrupted, consistent time in front of a computer, and that’s hard to get around here. My life is always interrupted.

I’m on the ground floor of an amazing new nonprofit. More on that soon. I’ve got a consulting business. I just brought Ian to autism college. Everything overlaps, which is great, but to be a successful writer, you have to sit in front of a computer for five hours a day and get words on the damn screen

I had to take off almost a whole week to prepare Ian for college. It took a while to assemble five weeks worth of items and to get up to Vermont. I needed a little emotional recovery time. So, I only really got back to work yesterday. When you put down your writing for a week, it takes MASSIVE effort to pick up where you left off. Actually, it’s a good thing in the end, because you always improve your writing after a little time away from it, but the re-entry is horrible.

Yesterday, I wrote about legal matters related to transition. It’s one of the shortest chapters in the book. I did that on purpose. Most lawyers make this information too complicated for parents, so you’ll hire them. But most people only need the basic info. For the handful of parents who need more details, they can consult their lawyers.

I’ve got an excerpt below. Feedback is welcome. I’m going to put a little behind the paywall. Please subscribe to read the complete newsletter. Thanks!

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When Do You Need a Lawyer?

When preparing your student for adulthood, some tasks you can do yourself. You can certainly teach your student how to do laundry and make their bed. Other tasks should be done by the school, like intensive work on reading comprehension using evidence-based curriculum. A handful of important tasks require a legal professional. 

You absolutely need a legal professional to set up a will, trust, and guardianship. You might need them if the school stops educating your student, though they should be a last resort. If your student has very complicated and expensive needs, then you might need a lawyer and an estate planner. If you have very complicated work responsibilities, you may want to outsource some responsibilities to a lawyer or other professionals to manage some tasks — all this work can be very time consuming. Beyond those circumstances, you can handle most aspects of the transition process on your own (with a little help from this book). 

Lawyers can be expensive, using up resources that could be spent on therapy or tutors. Hiring professional help can create an adversarial, stressful relationship with your school district. And lawyers don’t always yield positive results. Yet, in other situations, lawyers are absolutely essential. 

I hired a lawyer when I was forced to extricate my son from a problematic transition program. I didn’t sleep for nine months, worried that I was flushing $15,000 down the toilet. I spent nine months collecting evidence in old IEPs and emails and taking my son for outside testing. All the work paid off, because my district sent him to a private program, but it took quite a toll on me. I tend to believe that lawyers should be a last resort in school matters, used only when all other possibilities are exhausted. 

In contrast, my experiences with my estate planning lawyer was essential and (mostly) angst-free. It cost about $7,000 to have our attorney create a will, trust, and guardianship. It’s nearly impossible for an unskilled individual to produce those essential documents on their own. Yes, it’s shameful that all parents can’t get access to those services, because they don’t have $7,000 of disposable income. 

This chapter discusses the basics of legal issues that will protect our autistic kids during the transition process. Most of us only need those basics. Families with students with severe autism and complicated medical and behavioral issues may need more help finding appropriate placements and safeguarding their finances. 

Wills, Trusts, and Guardianship

When your student is in high school, you should set up a will, trust, and guardianship. It’s best to start this process before age 17, because you’re going to be busy with other financial paperwork after that. I like to space out annoying chores. 

A good lawyer will charge between $5,000 - $10,000 for these tasks. Don’t go cheap. Our first lawyer was a bargain for a reason; he charged us only a few thousands dollars, but he created a terrible document that had to be redone. 

To find a good lawyer, use local networks. Reach out to the most knowledgeable parents in your community and reputable non-profits for references. Do some online research to ensure that you have chosen the right person. Do not necessarily trust lawyers who give free presentations to your parents group. Make sure that your lawyer specializes in special needs issues. 

Wills, trusts, and guardianship are essential steps in the transition process, and nearly impossible to complete without an attorney with the costs in the thousands. It’s incredibly unfair that autism parents must assume those costs on our own. We need nonprofit and public support to take away this burden on families. 

The first task is to have the lawyer set up a special needs trust. A trust is a place to safeguard inheritance and other financial assets. Because the government requires that our students have less than $2,000 in their bank account, a sudden inheritance would cause them to lose their government benefits. A special needs trust enables a disabled person to receive that inheritance, which can later be used to support their needs, without losing benefits. 

There are two kinds of a special needs trust: a first person and a third person trust. I won’t get into the weeds with the differences, just know that you want your lawyer to set up a third person special needs trust. If a disabled person passes away, all the assets in a first person trust can be taken by the government to repay Medicaid services. You don’t want that. In contrast, assets in a third party trust would go to a named beneficiary. 

A trust should be created and then never used until your death. It's a major pain in the ass to use the money in the trust. There’s paperwork and rules. Instead, save any money put aside for your son or daughter in a bank account under your name. 

The same lawyer can set up a will for you, which specifies that your assets will be divided between your children and that all money for your special needs child will go directly into the trust, rather into a bank account. As we said, it’s very important for the disabled person to have less than $2,000 in their name. Make sure that grandparents and aunts also know about the special needs trust for their own wills. 

Typically, the special needs trust and the will can be completed at the same time. Beyond providing your lawyer with basic information, like bank account numbers and social security numbers, there’s not much to do on your end. 

The third step that can be handled by the same lawyer is guardianship. Once your child is 18, they become adults. They will have complete control over their medical care, finances, education, living arrangements and more. Without guardianship, your young person could decide that they will drop out of high school, and you couldn’t prevent them from leaving. They could stop taking their medication, and your doctor couldn’t inform you of that fact. They could run up huge credit card bills, and you wouldn’t be able to contact the credit card company. 

If your child is vulnerable in any way, you need guardianship. You can talk directly to college administrators, doctors, and banks without hassles. You can also talk directly to the government administrators, when it comes time to apply for benefits. 

There are various kinds of guardianship - partial or full. Guardianship only matters when you use it. When your child doesn’t need it any more, you stop invoking those rights. It’s an invisible power that is only used when necessary. 

Because my son has epilepsy and we had a scary time in the hospital with him when he was 18, we felt that it was very important to have medical guardianship. We also felt that it was important to have control over his finances. Like many people with autism, my son is socially naive. We need oversight over his finances to ensure that scammers don’t take advantage of him. 

While we have guardianship over Ian, we give him as much control as possible over his life. He makes choices about college and work. He has a stash of money in his bank account that he spends in ways that make him happy. We want him to be totally independent. So, the guardianship is primarily there for worse case scenarios. 

The guardianship process is a little more complicated than the process for wills and trust. It’s good to use the same lawyer that you used for the wills and trust. After the lawyer sets up the process, you and your teen will need to go to court. 

A judge will assign a lawyer to your student, who will represent their interests. Removing a person’s rights in our country is a very rare event that happens only in extreme situations. So, your child will need to clearly say that they want their parents to handle legal and medical issues. If the individual cannot offer consent because of intellectual or communication deficits, then their attorney will relay that information to a judge. You’ll have to pay for the cost of your attorney, as well as the state appointed attorney from the state. 

Guardianship isn’t essential, but it does make it easier to communicate with colleges, doctors, schools, and government agencies. If you feel that your student doesn’t need that level of support, there are alternatives, such as Power of Attorney. You and your attorney should discuss the best level of support for your family. 

Potential Conflicts

When your child gets to high school and begins the transition process, you and your school might not see eye to eye. Common disagreements between parents and high schools come about over evaluations, differing priorities, private schools, and education until age 21.