Wills and People With Learning Disabilities
According to the latest figures from the country’s leading learning disability charity, MENCAP, there are currently 1.5 million people with a learning disability in the UK. That means that issues surrounding wills, inheritance and trusts for the learning disabled are faced by a significant number of British families.
When it comes to helping those with learning disabilities, there are two important uses for a will;
1. Wills to provide for those with learning disabilities
2. Wills made by those with learning disabilities themselves
Looking for further advice?
We prepare Wills for clients throughout Wiltshire, Hampshire and Dorset and further afield – from our four offices in Salisbury, Andover, Fordingbridge and Amesbury.
And we offer FREE initial advice on the phone about wills and trusts. Call us today for a no strings attached conversation to put your mind at rest
PROVIDING FOR PEOPLE WITH LEARNING DISABILITIES
If your child has learning disabilities, then you will have particular worries about how best to provide for them after your death. We hope that this page will help to address those worries.
You must make a Will
If you die without a Will (what is legally known as “dying 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. In the absence of capacity on behalf of your child, the Public Guardianship Office would then need 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.
Income support is a benefit of last resort. It only kicks in when someone’s needs are not being met from any other source. If you leave money to your child outright, you may remove his or her entitlement to state support altogether, until nearly all the money has been used in care and other costs which the state would otherwise provide. It is therefore very important that Your Will should not give anything to your child outright.
Click here to read more about making a will.
What is a discretionary trust?
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 trust fund that the trustees (the people responsible for running the trust and 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.
Who benefits from a discretionary trust?
The trust deed names a group of beneficiaries – people who can benefit from it – and this group will include your child. Any of these people can benefit from the money in the trust, but no-one has the right to receive money; all payments are made at the trustees’ discretion. This means that the fund is not treated as belonging to your child; this is particularly important when the child is being assessed for entitlement to state benefits.
The trustees can use the discretionary trust to benefit your child in any way. If your child is dependant on state benefits, then usually the trust is used to cover costs which those benefits are not designed to cover; things which can make a very real difference to quality of life, such as holidays.
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.
Who should I appoint as my trustees?
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.
Bonallack and Bishop has a specialist Trust Administration team – providing a sympathetic but professional service in running and supervising discretionary trusts. Call us for more information.
You can also use your Will to say who you would want to bring up your child should you die while he or she is under the age of 18.
What alternatives are there to a discretionary trust?
There are alternatives to making a Will with a discretionary trust, but these are largely unsatisfactory. Why?
- 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.
Making a Will including a discretionary trust for the benefit of your child removes these worries.
Want to know more about setting up a discretionary trust? Click here to find out how our Trust Solicitors can help – or call our specialist trust team today for FREE initial phone advice
WILLS MADE BY THOSE WITH LEARNING DISABILITIES
Who can make a Will?
Anyone over 18 can make a Will, as long as they have the capacity to do so. The capacity to make a Will is set out by law and it means that you must be able to:
- Understand the nature of the document you are signing
- Understand what you own, and roughly what it is worth
- Understand the claims of those to be benefited by or excluded from the
If in doubt, a solicitor can work with a doctor to establish whether someone satisfies this test.
Click here to read more about Wills and mental capacity
Plain English is very important
Although they have the capacity to make a Will, many people with mild learning disabilities are concerned that they may not understand their Wills because the language used in them is ‘legal’ and not readily understood. Sadly lawyers don’t always bear this in mind.
We can prepare straightforward Wills in plain English for clients with learning disabilities so this need not be a concern.
Are you looking for help with making a will for a friend or member of the family with learning disabilities?
Our highly experienced private client team can help you wherever you live in Wiltshire, Hampshire and Dorset from our offices in Salisbury, Fordingbridge, Andover and Amesbury.
What if someone does not have capacity to make a Will?
If someone does not have mental capacity to make a Will themselves, there is a procedure whereby someone else can arrange for a Will to be prepared for them through the Public Guardianship Office – a court which manages the affairs of vulnerable people and those who do not have mental capacity. These Wills are known as Statutory Wills. It is usually only worth going down this route if the person involved has a valuable estate, as it can be costly and time consuming.
Click here to learn more about making a statutory will
What if I die without a Will?
Many people do not have a lot of money and are quite happy for what they have to pass to their families when they die. If you die without a Will, the law says how the things you own should be distributed. We recommend that you speak to a solicitor who can explain what would happen to the things you own if you die without a Will to make sure that you are happy with that.