PROVIDING FOR PEOPLE WITH LEARNING DISABILITIES

You must make a Will

If you die without a Will (intestate), then the law says what will happen to the things you own and your child may automatically receive money from your estate on their 18th birthday. The Public Guardianship Office would then have to appoint a deputy to manage that money. You would have no say in who was appointed, or how the money should be used, and the Deputy may well have to use all the money to meet accommodation/care costs. 

Your Will should not give anything to your child outright

One of the best ways of providing for your child is to make a Will that includes a discretionary trust. This trust will, on your death, provide a fund that the trustees of the trust (the people responsible for running it, who you appoint in the Will) can use, at their discretion, to look after and benefit your child; your child does not receive anything outright.

We encourage you to leave a letter with your Will, setting out how you would like your trustees to run the trust. This usually says that you would like your learning disabled child to be treated as the main beneficiary of the trust. This letter is not binding and that is why it is important to:

Choose your Trustees carefully

We find that the best combination is usually a family member, who knows your child well, and a professional person, such as a solicitor, who can ensure that the legal and taxation requirements of the trust are met. Remember that the Trustees decide who should benefit from the trust, and so it is important that you choose people who you trust to follow your wishes.

•  You can make a ‘Trust for the Disabled’ in your lifetime, but these do not allow the same degree of flexibility and do not protect capital for the purposes of entitlement to state support in the same way.

• You could leave everything to other family members with instructions that they use the money to care for your child. This carries many risks; if the person you leave the money to dies, divorces, or goes bankrupt, the money could be lost.

• You could leave your money to a charity which houses or supports your child; but you cannot impose any conditions saying it has to be used for your child’s benefit.

• If you leave your child nothing in your Will and rely on the state, then the authority responsible for funding your child’s accommodation could claim that inadequate provision had been made and contest the Will.