Ensuring that you have an up-to-date Will is particularly important where you are the primary care giver of someone with a severe disability. This Q&A session deals with some of the most common problems we see as solicitors where clients wish to provide for those with a disability within their Will.
I would like to provide for my disabled child in my Will however it is unlikely they would be able to manage a significant amount of money on a day to day basis. Can I get around this?
The most efficient way of leaving money to a beneficiary who does not have sufficient metal capacity to handle their affair may be to leave the gift to a Trust set up within your Will, rather than to the beneficiary outright. You can specify who should be Trustees and how the Trust Fund should be used.
If you were to leave money to the beneficiary direct an application may need to be made to the Court of Protection so that a “Deputy” can be appointed to deal with the money on their behalf. The Court would then have an on-going involvement with the beneficiary’s financial affairs to ensure that funds are being used properly – this process can be costly and complicated.
If I provide for my disabled child within my Will could this affect their Means Tested Benefits?
If you intend to leave a significant sum to your child in the form of an outright gift this could affect their entitlement to means tested benefits, both now and in the future. Through careful Trust planning you may be able to avoid this. Another option would be to gift this money to a Charity or charitable trust that would benefit your child and others in a similar position.
I want to leave some money to a family member who I imagine will take responsibility for my child when I am no longer here. Is this a good idea?
Possibly not. This can be a practical solution for smaller sums of money, however legally these assets would belong to the person to whom you leave them and would therefore be vulnerable to changes in their situation (bankruptcy, divorce or even death). There is also no guarantee that the recipient will carry out your wishes. If you do not make any provision at all for your child then the local authority could bring a claim against your estate on his/her behalf, on the basis that it was unreasonable for you not to provide for him/her, and in order to mitigate the financial burden to the local authority.
I currently deal with the financial affairs of my disabled child – should I take any steps to formalise this?
To avoid involving the Court of Protection in your child’s assets in case they lose mental capacity it would be wise for them to consider making a Lasting Power of Attorney. An LPA makes it possible for an individual to nominate a person or persons to manage their financial affairs should they ever be unable to. Both adults with a disability (but who have mental capacity) and those who support them should therefore consider making a Lasting Power of Attorney.
If you are concerned about how to provide for someone with a disability within your Will or have any other questions regarding planning contact Rosalind Watchorn Solicitors today to discuss your situation with a member of our specialist will-drafting and later-life planning team. Telephone 0114 229 0160 to arrange a free initial appointment with one of our solicitors.