All parents are concerned to
provide adequately for all their children. Parents of
people with intellectual disability are even more
concerned about this - how can I best provide for my son
or daughter who has an intellectual disability?
Many people believe a person’s
future is best guaranteed if the person’s
entitlement to the Disability Support Pension is
maintained and for this reason parents sometimes limit
their son’s or daughter’s ready access to cash.
This can and does cause problems because it is rarely
possible to predict what the needs of the person will be
in the future. Facilities and services may close or fees
increase until someday they exceed the pension. New ways
may become available to improve the person’s
lifestyle which cannot be obtained if the pension is the
person’s only source of income.
1. What if a
person does not have the capacity to manage
money?
Before preparing a will,
parents need to consider the capacity of any beneficiary
with an intellectual disability to manage any money or
other property left to them. It should not be assumed
that a person with intellectual disability is incapable
of managing a gift.
In each case parents must consider
the size and complexity of any gift and their own son or
daughter’s capacity to manage the gift alone or with
informal assistance from friends and family
members.
Even if it has been decided that a
person lacks the capacity to manage money, money (or
other property) can still be left to the person in a will
as there are many ways to structure a will to protect the
interests of such a person. For example, parents can
leave a share of the estate in a trust fund. This means
appointing people, called trustees, to manage and use the
fund for the person with a disability in the way
specified in the will. Parents can also say what happens
to any unspent part of the fund when the person with a
disability dies.
2. What factors
should parents consider when setting up a trust
fund?
If a trust is created,
parents need to consider how much freedom or
“discretion” the trustees will have in deciding
whether and when to spend money on the person with an
intellectual disability. If too little discretion is
given, the trustees may not be able to respond
appropriately to changing circumstances.
The choice of trustees is vitally
important. The trustees should have some understanding of
intellectual disability and some knowledge of the
individual’s needs and likes.
The Intellectual Disability Rights
Service has dealt with cases where trustees have been
unwilling to meet very reasonable requests for money.
This has arisen from factors such as trustees mistakenly
thinking that a person’s disability will prevent the
person from appreciating a holiday, ordinary furniture
and even decent clothes and shoes.
Parents should also carefully
consider the possibility of any potential conflict of
interest in selecting a trustee. For example if a family
member is appointed as a trustee and the will provides
that the trustee will receive any unspent part of the
fund when the person with a disability dies, the trustee
may find it difficult if not impossible to act solely in
the best interests of the person with a
disability.
If parents do not know anyone they
would like to act as a trustee, they can consider
appointing the Public Trustee or a private trustee
company. Some parents may consider appointing two
trustees to act together, one with knowledge of the
person and the other providing a more
“objective” view; each to act as a balance for
the other. For example, if the estate is large, a
professional such as an accountant may be an appropriate
trustee along with someone who has direct contact with
the person with intellectual disability.
3. Are there other
options?
Trusts are not the only
option. For example, parents could leave a share of the
estate directly to the person with the disability with
the request that the executors of the will make an
application to the Guardianship Tribunal for the
appointment of a financial manager if at the time of the
parent’s death the person with the disability does
not have the capacity to manage the share of the estate
left to him/her.
4. What if parents
leave the family home to an organisation or government
department?
Some parents have considered
leaving their home (or other property) to an organisation
or a government department in the expectation that such
organisation or department would then provide services to
their son or daughter for life. This can lead to many
problems and should be avoided. For example, the
organisation may encounter financial problems and be
unable to continue to provide services or the needs or
wishes of the person with the disability may change so
that the department is no longer able to meet those needs
or wishes.
Rather than leave property to the
organisation or department, parents can create a trust
and instruct the trustees to investigate allowing an
organisation or department to use the house for so long
as services are provided to their
son/daughter.
If the organisation or department
fails to keep its side of the bargain or if the needs or
wishes of the person with the disability change, the
trustees would then have the power to sell the house and
use the proceeds in a more appropriate way for the
benefit of the person with the disability.
tion that such organisation or
department would then provide services to their son or
daughter for life. This can lead to many problems and
should be avoided. For example, the organisation may
encounter financial problems and be unable to continue to
provide services or the needs or wishes of the person
with the disability may change so that the department is
no longer able to meet those needs or wishes.
Rather than leave property to the
organisation or department, parents can create a trust
and instruct the trustees to investigate.
5. What if no, or
inadequate, provision is made in a will for a person with a
disability?
The Family Provision Act 1982
gives a court the power to alter a will where the
willmaker has not made adequate provision for the
“proper maintenance, education and advancement in
life” of a spouse, son, daughter or certain other
dependents. It is important that applications be pursued
promptly. A person who has questions about this should
contact their local community legal centre or the Legal
Aid Commission for advice.
6. Can parents
appoint a guardian in their will?
Parents can indicate in their
wills who they wish to act as the guardian of their
children. The guardian’s powers only apply until the
child turns 18 years old.
Many parents assist their adult
sons and daughters with an intellectual disability to
make decisions about their lives (for example, where they
live) and manage their finances.
Parents are sometimes concerned
about who will provide this assistance after they have
died. The least restrictive alternative should always be
considered first - for example another family member may
be able to provide this assistance.
A parent may wish to include a
phrase such as “I request X assist my son/daughter
in his/her life.” Such “requests” have no
legal force but are an indication of the parent’s
wishes.
If these informal mechanisms are
not available or are unworkable, an application can be
made to the Guardianship Tribunal for the appointment of
a guardian and financial manager. A guardian or financial
manager will only be appointed if the Tribunal is
satisfied that the person with the disability cannot make
his or her own decisions, that no less
restrictive/informal assistance is available and that it
is in his or her best interests that a guardian or
financial manager be appointed.
Even if a parent has been formally
appointed by the Guardianship Tribunal to be the Guardian
of his/her adult son or daughter, the parent can not pass
this authority on to another person. Only the
Guardianship Tribunal (or the Supreme Court) can appoint
guardians of adults.
7. Where can
further information be obtained?
• Questions of
Rights: A guide to the law and rights of people with an
intellectual disability, 2nd edition. Available from
the Intellectual Disability Rights Service.
• When I’m gone -
A guide to wills for parents of people with intellectual
disability. This book aims to provide parents with the
full range of options available to them in estate
planning so they are better placed to fully and properly
instruct a solicitor in drafting their wills.
• Booth, S. “Wills for
Parents of People with Intellectual Disability”,
Lawyers Practice Manual, vol 2. Most Lawyers have this
manual and would be well advised to consult this
chapter.
• Booth, S. “Providing
for a child with intellectual disability”, Law
Society Journal, February 1996.
• Community Legal
Centres - for information about the legal centre
closest to you phone the Combined Community Legal Centres
Group 02 9318 2355
• Law Access PH 1300
888 529
For further
information
Legal Advice available between 2pm
- 5pm weekdays
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