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Special Needs and Your Will

My daughter is severely disabled. How can I ensure she is adequately looked after when we are no longer around? Is there a Special Needs Trust that we can set up in our Will?

Special Needs and Your Will – For parents of a child with a severe disability, how to ensure that their child will be adequately looked after when they are no longer around is a constant worry and concern.

The main way that parents can ensure that their disabled child will be looked after when they are gone, is to set up a Special Needs Trust in their Will, which comes into effect once they are no longer around.

There are statutory requirements, tax and other considerations that need to be addressed when deciding to set up a Special Needs Trust. The best thing that you can do for your daughter, is obtain expert legal advice from a Wills and Estates lawyer. An expert Wills and Estates lawyers will talk to you about exactly how you want the Trust to operate, as well as give you expert advice on ways in which to limit any impact of the Trust on your daughter’s disability payments, under the Commonwealth Social Security Act.

Under the Social Security Act there is provision to set up a Special Disability Trust. However, there are strict requirements to make this Trust a valid Special Disability Trust under the Social Security Act. For example, there are strict beneficiary requirements whereby:

(a)  The Trust must have no more than one beneficiary;

(b)  If the beneficiary is over sixteen years of age they must:

  • Have an impairment that would qualify them for a disability support pension; or
  • Have a disability that would entitle a carer to a carer payment or be living in a group home, institution or hostel funded by the government for people with disabilities; and
  • Not be working and have no likelihood of working for more than seven hours a week or working in a Commonwealth supported program.

(c)  If the beneficiary is under sixteen years of age they must:

  • Have a severe disability or a severe medical condition;
  • Have the necessary rating of intense under the Disability Care Load Assessment (Child) Determination; and
  • Have written certification from a medical professional that because of their disability they need personal care for more than six months and will require the same care or additional care in the future.

This is just a brief look at the regulations in force in relation to Special Needs Trusts, to illustrate the need to speak to an expert lawyer who has experience in drafting Trusts for the provision of children with a disability.

At Northern Beaches Lawyers, Graeme Heckenberg is an expert Wills and Estates Lawyer, who has the necessary business and legal expertise to draft your Will with the appropriate Special Needs Trust for your daughter. He will also talk to you about the importance of choosing the right Trustee to administer the Trust for your daughter’s benefit, to ensure that she is adequately looked after when you are no longer around.

Graeme Heckenberg is an expert Wills and Estate lawyer.

Call today for a an appointment closer to home on 9221 0341

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