How to provide for a disabled child in your will
Dear reader,
It is of utmost importance to plan carefully for the future in order that your children will be taken care of when you are no longer around.
This is more particularly important where your children require care into adulthood, which can be the cause of much worry for parents, especially as they get older.
When making a will, the testator (person making the will) appoints the following:
- Executors, who will administer the estate according to the wishes of the testator
- Trustees who look after property and monies
- Guardians who are usually appointed where there are minor children, and who will raise your children in the manner that you raised them
Trustees and guardians carry out the same function in the case of adult children with disabilities who require outside assistance.
These can be the same people, or can be different people, but it can be practical for the trustees and guardians to be the same people, as they will be caring for the child, and dealing with the child’s money, if it is to be held on trust for the child.
Failing to appoint a guardian for a child who is under eighteen at the time of death, or an adult child with such a disability as to render him or her mentally incapable of conducting his or her own affairs, may lead to the child being made a ward of court, or to family members having to apply to the court to become guardians.
It is considerably advantageous to appoint guardians under a will.
It can be difficult to decide on who to appoint as guardians and trustees.
It is important that those appointed are people you trust, who will have the best interests of your child at heart.
Those who are chosen by parents to be appointed guardians and/or trustees, under a will, should be consulted before they are appointed in the will, to determine that they are happy to act as guardians or trustees, and consent to do so.
Providing for a child with special needs requires serious consideration.
It is advisable to set up a trust for the child, that is , to leave money to the child which is to be held on trust by the appointed trustees.
It is highly advisable to obtain legal advice in considering this, because there are several options available when creating a trust.
The most common type of trust in this situation is the discretionary trust.
This allows a parent to leave money on trust for the benefit of a child with special needs, but allows the trustee discretion as to how to spend the money, allowing for flexibility to take into account the needs of the individual.
Discretionary trusts may have financial benefits.
Being the beneficiary of a discretionary trust should not impact on the means of a person with a disability, for the purposes of obtaining social welfare, medical cards, and other state benefits.
Provided that the trust is created specifically in favour of the child with special needs and is correctly set up, a tax exemption may also apply for the child, by virtue of his or her incapacity to handle his or her own affairs.
You should obtain the advices of a tax consultant or accountant prior to setting up any trust.
It is extremely important to obtain the services of a solicitor who will have the necessary skills to draft a will of this specific nature correctly, and who will be able to ensure that the creation of the trust meets your wishes, and will adequately ensure that a child with a disability is provided for well into adulthood.
