Q. Helen I’m a very practical person who likes everything to be in order and as such, I would like to have a will prepared which will cover the needs of my family once I’m gone. This is where my problem lies. I have three wonderful children, who I love dearly. My youngest was born with a disability, which makes it impossible for him to be independent and although he can get about and do some things for himself, he requires quite a lot of care. Once I’m gone, the vast majority of my estate will have to go towards providing such care, but what is the best way to arrange this?Also, once I’m gone I would very much like for my two daughters to be involved in my son’s life and to share his care as and when they can (as they do now). But I am worried they will get upset when they find out how my estate has been divided and that they get far less than their brother. Can I request in my will that they only get what I have left them if they agree to look after their brother?A. Legal content provided by Rod Cunich, Slater & GordonHelen, I applaud your practicality and your understanding that the needs of your family once you are gone, require need planning in the here and now.I’m sure your daughters are well aware of the needs of their brother and that you wish to plan for how these will be met once you’re gone. I would urge you to be open and honest with your daughters, advising them of the legal advice you have been given and involve them in the process of drafting and preparing your will. This will not only remove any likelihood of shock and disappointment, but it will also give you the opportunity to convey in person what you are hoping to achieve. Also, if you have included your family, then there is less chance you will feel obliged to change your will if they disagree with what you have requested.If it is too distressing for you to talk to your daughters directly, or you are confused by the legal language used, then you may be able to call on your solicitor to explain the process to them. Sometimes a third party can remove the confusion and emotion, which is often felt when talking about death and dying.I would also suggest that, if possible, you refrain from stipulating that your daughters only benefit from your estate if they are responsible for your son. This is not fair on them, or him, and will only create ill feeling between all parties concerned. You say that you have three wonderful children and hopefully your daughters won’t abandon their brother, or go against your wishes.It’s worth remembering that, in most cases, it is not a parent’s responsibility to provide for their adult children once they have left the family home and any inheritance left to them is a gift, not a right. I’m sure your daughters will understand that your son needs the bulk of your estate in order to access the care he requires and that they won’t begrudge him this.As your situation involves complex legal advice, I have asked Rod Cunich of Slater & Gordon to provide you with some ideas on how you can ensure your will meets your requirements.Helen, there are numerous legal structures which can be utilised to address this situation, but the structure must be co-ordinated with your financial planning.Having consulted all your children and gleaned an understanding of their position, the starting point is to consult a financial planner to help you undertake some financial modelling. This process will help you work out pretty accurately:
The modelling will help identify which legal options are most appropriate to your circumstances, and what in reality ‘fairness’ might look like. It’s recommended that a financial adviser who specialises in this type of modelling be engaged to work hand-in-hand with your lawyer to develop the optimum solution for you. Some of the legal structures commonly used in combination with financial advice are:
1. A ‘special disability trust’ created while you are alive or stipulated in your will. This type of trust can be used to assist with the provision of care and accommodation without impacting on Centrelink benefits. They are restricted to severely disabled people so you would have to have your child assessed by Centrelink to determine if he does qualify.
2. An 'all-needs protective trust' created while you are alive or stipulated in your will. These trusts are much more flexible than special disability trusts as the funds can be used for all purposes incorporating lifestyle needs including holidays and hobbies. And there is no restriction on who can use them. The shortcoming with them however, is that property owned by the trust and income generated do count towards the Centrelink means tests, so care must be taken not to adversely affect Centrelink benefits.
3. A combination of both types of trust.Should your disabled child pass away first, the remaining capital in both these trusts can revert back to your other children, or their descendants. Your other children can be involved in the management of the trusts as trustees or as ‘family advisors’.If you would like more advice, you can contact Rod Cunich at Slater & Gordon on 1800 555 777, or visit SlaterGordon.com.au for more information.
I hope this advice has helped you tackle a tricky subject and that your family appreciate all that you are doing for them.
Helen all I can say is I can't even imagine how hard this is for you-
Helen should heed Rod Cunich's advice very carefully. The legal problems associated with the technicalities of preferring a particular child in Australia, are frought with danger & require very expert advice.
I am the sister of a person very much in the same situation. My sister has a disabled son and a father who is not interested and sister who has her own problems.
When my sister passed away he was treated as a ward of the state (abandoned) - human resources took over and he now lives in a very caring "group home". This would not have been possible whilst my sister was alive due to the scarceness of these placements. The majority of the inheritance went to the son, with only the legal obligation towards the daughter and some to the grandchildren. The money was placed with the Public Trustee who liaise with the home for his needs. I must say I could not have envisaged this outcome and am extremely grateful for the care he receives - as I thought I would have to provide for him myself - and being a senior would have found this most distressing and difficult.
I can only hope for the same good outcome for Helen
I find myself in a similar position Helen. I have two sons, one of whom receives a disability pension. I have stipulated in my will that my disabled son has a life interest in my home and that afterwards it is to go to my grandchildren to do with what they want. I have named both sons as beneficiaries of my lump sum superannuation (I rolled over when I retired) and my partner will get a portion of the superannuation pension I currently receive. My older son has been named as executor and trustee and I have discussed with him the likelihood that my younger son will need him to look after the capital so that ongoing expenses are met. My older son, bless him, just said leave it where it is needed Mum. I feel pretty confident that things will be in order - I have even included in the will that should my younger son not be able to keep up the family home it is to be sold and the proceeds used to purchase a more suitable home with that then being subject to the life interest and subsequent passing to the grandchildren. The solicitor seemed to think the arrangements would be satisfactory on legal grounds as well as moral.
Helen I understand. I have three sons and the middle one has intellectual and physical disabilities which are not severe but which mean that he is unable to live independently. We have only ever been on short holidays without him (up to 1 week) when either of his brothers provide his care however we do not see this as a long term solution as we have no way of predicting what challenges thier futures may hold for them. The legal side of things is a nightmare. We have been advised that any wishes we may express in our wills for his future care are in no way legally binding. Living in Queensland with the current governments attitude towards the disabled, I shudder to think of him being placed into State care. We have looked into retirement living as we are nearing that age but retirement villages (even when we own the freehold) will not allow him to move in with us. It is a problem that keeps us awake at night and never goes away. There is a minefield of bureaucracy to be navigated - you get a lot of sympathy but never any definite advice or assistance. I would love to read about positive experiences that carers have had or organisations that have been helpful.
Having been a carer for my husband, I can fully relate to your concerns. You feel that you alone are responsible for their present and future care.
The quality of care for the disabled varies considerably around Australia - from state to state, and even locally. The degree of disability also makes a big difference to the availability of suitable care. Expecting family members to be willing or able to take on the long term care of a disabled person is a nice idea - but may not be possible forever.
There are probably more options available for people needing "low level" care - with some very good group homes in various suburbs. These are normal houses provided with any required extra security or other facilities. They have 24/7 supervision and support by paid carers. These places are good for people who are reasonably mobile and who do not require day-to-day nursing.
Being declared a "ward of the state" is not a bad thing - particularly if the family is not "well off". A guardianship board makes decisions about medical and other needs - without unreasonable financial demands being made on relatives (who may be trying to bring up families of their own - or be going through difficult financial times).
It is important to look after your own health and not go without in order to accumulate a large nest egg to leave behind. In some cases, inheriting a large nest egg can preclude Centrelink and other taxpayer funded services.
It would be a wise move to firstly join your nearest state or Australian Carers Association. They provide excellent advice, information and other support. After using their services, I do think you should then discuss this situation with your daughters, the Public Trustee in your state, and a lawyer who specialises in estate planning.