How making a will can help families protect their child with SEN
Making a will is not just about deciding who gets what. There are also wider issues to consider, particularly for parents and carers of vulnerable children. A will provides an opportunity to ensure that your child receives appropriate financial support after you’ve gone. In your will you can:
- appoint guardians for your children
- ensure that your children and family are provided for
- ensure your assets are left in such a way that they can be managed on behalf of anyone who might find it difficult to manage their own affairs
- ensure your assets are left in such a way that any means-tested benefits or funding won’t stop
- ensure that your children and family can maintain and enhance their quality of life.
If you don’t have a will, the rules of intestacy apply, where the law dictates who will take your estate on your death, and how. Quite often, the people you want to benefit will not automatically do so.
Even if you have a will, unless it has been prepared with your particular circumstances in mind, it can cause problems, as any inheritance could have a huge impact on benefits your child or relative receives.
In addition, many vulnerable people are unable to manage their own finances, particularly if they inherit a large lump sum, which leaves them open to being taken advantage of, spending or giving away their inheritance rather than using it for their future.
A matter of trusts
A correctly drafted will can ensure that your child or relative can benefit from your estate but be protected from owning the money and assets outright. This can be done by placing the assets into a trust. Using a trust in your will is the best way of protecting your assets. There are two groups of people involved in this process: the beneficiaries and the trustees.
You select your beneficiaries, who will usually include your vulnerable child, other children and grandchildren, family members and charities. You also choose the trustees who are responsible for making the decisions about who benefits and when. You provide your trustees with guidance about how you want them to use the funds in the trust. The trustees’ decisions must be unanimous, which offers an extra level of protection.
Trustees usually use the trust fund to provide for things that the state doesn’t, and ensure that your child is looked after in accordance with your wishes. Leaving your assets on trust means that your child will retain any means-tested state benefits.
Once your child turns 18, she is legally an adult and considered able to deal with her affairs. An adult is presumed to have the required level of mental capacity to make a decision, until it is shown that she lacks capacity.
If a person is deemed capable of managing her own affairs, then she can prepare lasting powers of attorney to appoint people to manage her property and other affairs when she needs help, and make important decisions about her health and welfare when she is no longer able to do so herself.
If a person does not have capacity, someone can apply to the Court of Protection to be appointed as her deputy. This will enable that person to manage the child’s property and financial affairs.
There are legal processes in place to help you ensure that the right level of care and support is provided to your child after you are gone. It is important to speak to a legal specialist in this field and to take the right steps to plan for your child’s future.
Christine Thornley is Wills, Trust and Probate Partner at Gorvins Solicitors: