Caring from beyond the grave

Loes has an adult child with a disability and wants to start preparing for the day when she is no longer around to care for him. She asks estate planning lawyer Rod Cunich for guidance.

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Q. Loes
My partner and I separated (amicably) after 30 years of marriage and we have a son (aged 26) who is on a health pension for mental illness – schizophrenia. He is getting better and can manage his money, but cannot study, drive or get a job due to poor concentration and illness-related side effects. I plan to make a will for my son and daughter (aged 21) and will seek professional advice, but wanted some basic background on trusts or other appropriate arrangements to safeguard my son’s independence when I am no longer around. Can you please provide some key points or useful links?

A. There are numerous legal structures and strategies that can be utilised to address the situation of a beneficiary with this type of disability. To succeed, the structure must be coordinated with your financial planning and retirement plans.

It’s all up to you. The beneficiary, your son, has a disability, so he might be unable to defend his rights on his own behalf. You have the responsibility to inform yourself.

First, consult with your other child and make an assessment of their respective financial positions.

Next, consult a specialist financial planner to help you undertake some disability tailored financial modelling. 

This process will help you work out pretty accurately:

  • how much money will be available when you die
  • how much will be required to support your child – balancing Centrelink benefits, the cost of accommodation and a multitude of similar practical considerations
  • what will be available to your other child on (1) your death, and (2) on the subsequent death of your disabled child, and
  • funding options to achieve your desired outcomes, including the use of life insurance, annuities, superannuation and funds management.

This type of modelling will help identify what legal options are most appropriate to your particular circumstances, and what estate planning ‘fairness’ might look like in reality.

I recommend that a financial adviser who specialises in this type of modelling be engaged hand-in-hand with your lawyer to work out the optimum solution for your circumstances.

I also recommend that you have your child assessed by Centrelink to determine whether he qualifies for a Special Disability Trust.

Some of the legal structures commonly used in combination with this type of financial advice are:

  • Special Disability Trust created while you’re alive or written into your Will. This type of trust can be used to assist with the provision of care and accommodation without impacting on Centrelink benefits. These trusts are restricted to severely disabled people so you would best have your child assessed by Centrelink to determine if he does qualify. Only a small part of the trust fund can be used for lifestyle and other uses – provision of care and accommodation are the focus of this type of trust
  • All Needs Protective Trust created while you’re alive or written into your Will. These trusts are much more flexible than Special Disability Trusts as the funds can be used for all purposes, including lifestyle needs, such as holidays and hobbies. And there is no restriction on who can use them. The shortcoming, however, is that income generated by property owned by the trust and capital in the trust will count towards the Centrelink Means Tests (so care must be taken not to adversely affect Centrelink benefits)
  • a combination of both types of trust
  • other types of trust created to address your child’s particular needs.

Your other child can be involved in the management of the trusts as trustees or ‘family advisors’.

If your disabled child passes away before his sibling, the remaining capital in both these trusts can revert back to your other child, or her descendants. 

This outline is necessarily brief, and recommendations may not suit your particular circumstances. I recommend that you buy a copy of Understand Wills and Estate Planning as it addresses the issues raised by you in broader detail. It can be purchased online at: //www.rodcunichlawyer.com/publications/

Rod Cunich is a lawyer with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply email it to  [email protected]

Related articles:
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Will uneven legacy create issues?

Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature – legal advice should be sought.

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