Creating a Will for Children with Disabilities

This is my sister Rhianna. She is 37 and has an intellectual disability. Rhianna lives in a group home with four other ladies and a team of carers. She works four days a week in sheltered employment and also receives a disability allowance from Centrelink. 75% of her disability allowance goes to paying her board and lodgings; her small salary just about covers her transport costs and; she is left with a small amount to cover any other living expenses such as medical, dental, entertainment and holidays.

 

Several times a year, Rhianna goes on holiday with a carer and family friend, Susie. Susie has taken Rhianna to Bali, Thailand and on cruises. They have a ball together. Rhianna is not interested in material goods. Fashion, home furnishings, electronic gadgets don’t interest her. Further, she has no concept of money and cannot read, write or count.

 

Parents of children with disabilities face uncertainty and fear when considering what will happen when they pass away. This surely must be one of the hardest things faced by such parents. One of the many issues to consider is how to address the needs of a child with a disability in a will.

 

As discussed, Rhianna’s practical and financial needs are met. Further, she has no ability to handle finances herself. If Rhianna is left an inheritance, what will she do with it? Who will control it?

 

The vast majority of my clients leave their estates equally to any children. When a child has special needs, this may not be appropriate. A child with a disability may have much greater needs than any other children who will hopefully be healthy and have careers.

 

On the other hand, a large inheritance may affect any Centrelink allowances. A further important consideration is the potential for family provision claims. A child who feels that they have not received adequate provision may apply to the Court for further provision from their parents’ estate.

 

This can happen both if a child with a disability is provided for to the exclusion of other children and also in the event that the child with the disability is excluded or left less of the estate.

 

A recent example of this is the case of Abrahams* where the Public Trustee made an application for further provision on behalf of the deceased’s adult son who had Down’s Syndrome. The Court agreed that further provision was appropriate even though the deceased had stated in his will: “all of his financial and lifestyle needs met from his social security benefits and Multicap… has no understanding of money and lacks the capacity to go out and spend it. It is likely that any amount he might otherwise receive under my Will would just sit in a bank account without actually benefitting him”.

 

Thankfully, there are a variety of approaches which can be taken to ensure that the best interests of people like my sister are met. One such approach is to set up a Centrelink approved “Special Disability Trust” under the Will. An eligible person, such as Rhianna, would benefit from an assets test assessment exemption of up to $647,500 (indexed annually). 

 

As with all estate planning issues, dealing with these matters is not easy. Many people are not even aware of the various options available and the consequences of taking a particular approach to providing for children, including those with special needs. My family’s situation is just one of so many unique family situations.

 

There are many reasons why so many people do not have a valid, up-to-date will. One of these is the perception that “it’s all too hard”. However, if the unthinkable happened, the unpleasantness of facing the issue now would far outweigh the difficulties faced by those left behind.’

 

I encourage families to discuss these difficult issues and to ensure they have real peace of mind for the sake of themselves and their children.

 

*Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286

 

By Catherine Hopkin, September 2016

The information in this article does not constitute legal advice and should not be used as such. The information provided in this article is not intended to be comprehensive and is intended to provide general information only.

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