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Providing for a disabled child through your Will

Parents of a disabled child are often anxious to ensure their child’s future is secure and protected for when they are no longer there to care for them.  A Will incorporating a discretionary Trust can provide a much sought-after solution in protecting a disabled child’s long term financial stability.

If parents leave an absolute gift to their disabled child in their Will a number of problems can arise, for example:

• The child may lose access to certain means tested benefits
• The child may squander the money
• Others may take advantage of the child’s naivety which in turn, could increase their vulnerability to exploitation
• If the child lacks mental capacity to manage a large inheritance the Court of Protection may step in and appoint somebody to manage the money on their behalf

A properly drafted Will with a discretionary Trust of the disabled child’s legacy can overcome many of these problems.

Parents can choose who they wish to take care of money on behalf of their child (“the Trustees”) rather than this be determined by the Court of Protection at a later date. The appointed Trustees will look after the money and property in the Trust in order to ensure protection and support, not only for the disabled child, but for other members of the family. The Trustees can ensure adequate provision is made for long-term care and accommodation, taking into account the needs and wishes of the child.

The Trustees owe a duty of care to the disabled child and must appoint proper professionals, such as expert financial advisers, to assist with the running of the Trust. Trustees will have discretion as to when and how they allocate the income and capital for the benefit of the child. The Trust can also protect the child’s entitlement to state benefits.

In addition to the Trust, the parents may prepare a Letter of Wishes which provides guidance to the Trustees. This can set out how the Trust should be run for the child’s comfort, support and maintenance after the death of the parents. This guidance can include as many details as necessary about the child’s preferences, needs and lifestyle choices. Yet, the Trust arrangement still provides Trustees with flexibility to take into account the child’s present circumstances and utilise money and property accordingly.

With a Trust arrangement, parents can have peace of mind that any inheritance for their child will be spent on ensuring he or she has the best quality of life available.

If you would like to talk to someone about how to use a Will to plan for the future care of a disabled child, or indeed have any questions about making a Will please contact a member of the Napthens’ team.