28 June 2023

Providing for a child with disabilities in your will

By Yasmin Knock, Solicitor, Hayes + Storr.

Providing for a child with disabilities must be carefully navigated to ensure that everyone’s needs are met when you are no longer around.

Considerations when leaving money to a disabled child

If your child receives means-tested state benefits, leaving money to them outright in your will could affect these. Your child may not cope with a sudden receipt of significant funds, or there may be concerns about others taking financial advantage of your child.

Dos and don’ts of financial provision

Often a trust arrangement is a suitable approach. Deciding who the trustees should be is of utmost importance. It is imperative to choose people you trust, who will make good financial decisions and manage funds accordingly, whilst ensuring it is in line with your child’s needs and best interests.

A discretionary trust may be the most appropriate. A disabled person’s trust is also common. All trusts have a unique key purpose and tax implications. They can preserve access to benefits.

If you have more than one child, the child with disabilities may require more financial help than the others, and a trust can ensure all your children ultimately benefit equally. Personalised advice is critical to ensure that you have opted for the most suitable trust.

Some believe it is easier to divert the inheritance to other family members who will then provide for the disabled child. However, circumstances may mean that they cannot act as agreed. For example, you leave your entire estate to your sister on the assumption that she will provide for your disabled child. Your sister could end up divorcing, becoming bankrupt, dying, or becoming mentally incapable. These would all redirect the inheritance away from your child.

Providing for disabled children in non-financial ways

A guardian should be appointed for any child under 18 to ensure that someone is available to care for them, should you pass away.

If your disabled child is over 18 you cannot appoint a guardian. However, you can leave guidance with your will as to who you would like to unofficially look after your child and any specific care provisions.

It is important to consider the possibility that in the future, you may no longer have capacity to continue providing for your child. In this instance, a lasting power of attorney (LPA) can help. A carefully drafted LPA can allow for continued financial or other provisions for your disabled child, should you become unable to make such provisions yourself.

It could be appropriate for your disabled child to make a LPA, or an application to the Court of Protection can be made on their behalf.

How can we help?

For further information, please contact Yasmin Knock in the wills and probate team on 01328 863231 or email yasmin.knock@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.