The biggest concern of any parent of a child with severe intellectual disability is ‘who will look after my child after I’ve gone?’ The answers will be as unique and complex as families and their individual members are.
A parent’s concerns can, at least in part, be addressed by them making a Will that:
- gifts property, money or other assets to be used for their child’s accommodation, care and other material needs during their lifetime; and
- expresses their wishes on how they would like their child to be cared for after their death (for example, where they would like their child to live).
This article gives a high-level overview of six typical features of a Will made by a parent of a child with severe intellectual disability.
Testator
The Testator is the person (the parent in this case) making the Will. The Will should include their full name, address and date of birth.
Executor
An Executor is the person appointed by the Testator to administer their estate in accordance with the instructions in the Will. It may be a trusted friend or relative, or a public or private trustee company with expertise in executor functions (for example, the State Trustees, Australian Unity, Perpetual Trustees). The Testator may appoint 1+ Executors to act jointly, or appoint one Executor and a second as a ‘back up’ Executor if the first-chosen Executor is unable to carry out the function (recommended).
Assets of the estate
Prior to making a Will, the Testator (parent) should ‘stocktake’ their significant assets such as:
- Real estate including the family home. Note, it is important to clarify whether the Testator is the sole owner or a shared owner (joint tenant or tenant in common) of any property.
- Cash in bank accounts.
- Superannuation death benefits payable to the estate.
- Life insurance policy benefits payable to the estate.
- Motor vehicle/s, jewellery, furniture and pets.
- Other items of sentimental or other value.
Beneficiary
A Beneficiary is a person will inherit something under the Will. The Will should include the full name, address and date of birth of each Beneficiary.
Testamentary (Protective) Trust
A child under the age of 18 years old, or an adult with severe intellectual who cannot manage financial and property matters, does not have legal capacity to directly inherit any significant assets, such as real estate, under their parent’s Will.
Rather, their inheritance must be taken via what is a called a ‘testamentary trust’ created in a Schedule to the Will. This is sometimes called a ‘protective trust’: the trust structure is designed to ensure the inheritance of the child (trust beneficiary) is held by the trustee (usually the same person who is the Executor of the Will) and is only used in ways to safeguard their welfare and promote their best interests (general duty).
Directions
While as mentioned, the trustee of a testamentary (protective) trust has a general duty to structure and manage the trust for the best interests of the beneficiary, the testator (parent) may leave more detailed guidance, by way of directions, to the trustee on how they would like the child’s inheritance to be used to care for their child after their death.
I usually spend a good deal of time with parents to get the directions ‘right’ as this is the part of the Will where they can explain their particular wishes for their future care, accommodation and other support arrangements.
Below are some examples as to what might be included in the directions:
- Description of child’s disability and their individual needs and preferences.
- Parent’s wish that their inheritance be prioritised for their secure housing, furniture, clothing, transport, health, aids and equipment and other essential things.
- Parent’s specific wishes as to where they would like their child to live after they die (for example, that they live in the family home, or in a home of their own with NDIS/Centrelink support).
- Description of their current and expected future supports provided by government systems such as NDIS, Centrelink, and Medicare and/or private providers.
- Parent’s wishes as to who they prefer to help their child with decision-making (for example, a particular siblings or other relative or friend).
I stress that directions are not legally binding on a trustee; they are for the trustee’s guidance only. Nonetheless, the trustee should take the directions into consideration when making decisions. The directions also become a written record of the parent’s wishes for their child that is formalised in the Will. This of itself may give the parent some ‘peace of mind’. Clear and detailed directions in the Will may also serve to clarify future expectations, roles and responsibilities of siblings and other family members.
When making a Will to provide for your child with severe intellectual disability, you will need to carefully work through various issues involving the law, bureaucratic systems and family, and above all consider the lifetime welfare of your child. I highly recommend that you seek legal advice and have a lawyer draft a Will to reflect your particular circumstances, needs and wishes.
Please contact me if you require help in this area.
