Anyone who has to care for or provide for a family member with a learning disability needs to be aware that standard family wills may not work in this situation. This article covers some of the essential topics that families need to be aware of.

Wills
It is essential to have the right sort of will when one of your beneficiaries has a learning disability. You must make plain to the solicitor drawing the will that you need to provide for a child or other relative with a learning disability. They need to be aware of the complexities involved and if they do not show awareness of these, go elsewhere. If your child has a learning disability first of all  you should consider their level of capacity to manage money, perhaps quite a substantial sum. If they do not have the capacity to manage their affairs, normally the Court of Protection will be involved and it makes sense to avoid it if you can.

Your child may be vulnerable to financial abuse if they do not appreciate the value of money. If your child is in receipt of means tested benefits, any large inheritance will disqualify them until the inheritance is reduced to the permitted level. This cannot be corrected after a death, as any variation would be treated as deliberate deprivation of assets, and the child will be means tested as if they still had the assets.

You DO need to be fair amongst all your children and balance competing interests. There may be good reasons why you do not treat all the children exactly alike, but you do need to give thought to the matter. You should always wrap your disabled child’s inheritance in a trust within your will, or leave it to an already established trust such as the Mencap Trust. DON’T just leave it informally to the others to look after for the disabled child – it may be lost in a divorce for example, and the disabled child would have no comeback. As mentioned above, if there is no will, the intestacy rules operate and this can be a problem not only for your child but also for you. The current intestacy rules for a married couple, or in civil partnership, where there are children of the one who has died, are that the survivor receives what is called a statutory legacy of £250,000 and all the personal chattels (things) and a life interest in half the excess, and on the survivor’s death it goes on to the children, whilst the other half of the excess goes in equal shares to the children outright at 18.
 
So a will gives you the chance to make proper provision for your children, to decide who administers your estate (executors and trustees), appoint guardians for any minor children, and express your own wishes about the distribution of your estate and the way things are dealt with.

Trusts
There is a variety of trusts in use, but the type you need is called a Discretionary Trust. (The Mencap Trust is one of these). There is also a special trust for disabled people called an s89 trust for vulnerable beneficiaries. This can be useful on occasions, but normally a discretionary trust is recommended, as it does not affect a beneficiary’s right to means tested benefits (income support and housing benefits, council tax benefit where relevant). So as long as the trustees pay bills on behalf of the disabled beneficiary, pay for treats, holidays etc, the beneficiary suffers no penalty.

A trust may be set up in your lifetime and you and other family members can then leave money to it, or you can establish the appropriate trust in your will. It can be very convenient to have a lifetime trust in existence but it is very important that if you are using it as a recipient of legacies that you set it up and then leave its provisions unmodified. The service which Mencap offers can be really useful. You set up a trust with the Mencap Trust Company as trustee, you give them £5 to make the trust technically valid – it must have some assets in it – and you pay their set up charge, and the trust can lie dormant until your death, or of course it can receive legacies or funds from other family members in the meantime.

The trust is an excellent idea, particularly for families who need to ensure that someone will always be around to look after their child’s inheritance in their best interests and who are worried about imposing on other family members. The trust pack is available from Mencap on request. More information can be found on their website or give them a call on 0808 808 1111.

This article was written by Helen Rowett from Irwin Mitchell Solicitors on behalf of Contact a Family who have very kindly given the NPDG (UK) permission to reproduce it our our website.