Thinking about your Will may seem hard enough for most of us, but for people who have a child with a disability or other vulnerability, it can be completely overwhelming. Who will make sure they are not taken advantage of? How will I know that they are in a safe place, and not being abused? Is it fair to expect family members to look after them into adulthood? There are just so many questions that do not seem to have a clear answer, and for people confronted by these issues, preparing a Will can often land in the “too hard” basket.
However, it is perhaps even more important for those in this situation to ensure that they do have a valid Will in place, and that they have carefully considered the practical implications of their death on their vulnerable loved one. Speaking with a lawyer who is experienced with vulnerable beneficiaries can be helpful, to talk through what strategies and options can be put in place to best assist a smooth transition for funds intended to support a vulnerable loved one after your death.
Passing away without a Will can be extremely detrimental when your beneficiary is reliant on a means-tested pension, such as a Disability Support Pension. With no Will, the law of intestacy provides that your beneficiaries entitled under law to take your estate upon your death will receive their inheritance directly. For many, this would mean that:
- They are no longer eligible for the Disability Support Pension, as their assets are too great; and
- They are vulnerable to being taken advantage of by money-hungry third parties
We are aware of some devastating situations whereby unscrupulous observers have claimed to be a domestic partner of a vulnerable beneficiary to obtain a financial property settlement under family law, or have convinced the beneficiary to sign over their home. Although sometimes, with the right advocate, these situations may be rectified, the processes involved are often lengthy and emotionally draining for all involved – not to mention the legal fees which may result.
By properly preparing your Will, you can structure the benefit to be managed by a trusted friend, family member, or professional, and ensure the funds are protected for the benefit of your loved one.
The wonderful thing about Wills is that they can put into place almost anything you want them to. For example, one parent of a woman with a severe disability instructed: “Her greatest joy in life is smoking. It isn’t good for her, but it’s what makes her happy. I want to make sure that, after I die, someone buys her cigarettes so that she doesn’t run out.” Another mother wanted to make sure that her daughter with a disability had regular haircuts and pedicures, and that her wardrobe was refreshed seasonally, as her daughter took great pride in her appearance.
Using a trust structure within a Will also ensures that you have control over who is entrusted with the funds for your loved one. Many people express concern that the control will end up with a ‘faceless organisation’, or be seized by a self-interested acquaintance. Including provisions in your Will to pass an inheritance into a trust enables you to select the person who will manage those funds for the best interest of your loved one. It also allows you to direct where any left over money passes after your loved one has passed away, which can be particularly relevant if they don’t have capacity to make their own Will.
Whether it is someone with a disability, a mental health issue, or an addiction, Burke & Associates understand the concerns about planning for a vulnerable beneficiary. We strive to make the process as easy for you as possible, and to offer options for your estate planning that you may not be aware of, discussing the practical implications of each. For more information, or to make an appointment to discuss your situation in more detail, please contact Meghan Warren, Principal, Rohani Bixler, Special Counsel or Margaret Girardi, Senior Associate.