Future Protection

Ironically this starts with the parents of the disabled young adult and involves some difficult discussions and decisions.  The best place to start is your estate and what happens if scenario.  Whether you in Scotland, Wales, Northern Ireland or England the decision process will be the same although thresholds and amount variations do exist as triggers as to what might happen.

So consider you have two children, one disabled the other not.  The first question will be the ability of the disabled person to manage money and make life choices such as where they live, what they do and also how they may spend money which is left to them.  If the answer is that they will be able to manage their life and money then a simple Will would probably suffice.  If the answer is no, they will need some assistance then it is important that you consider a will the establishes a Trust with multiple beneficiaries and express wishes that the Trust is used for the benefit of the disabled person.  

It is important to work on the premise of the disabled person, if they do not have the capacity to manage their affairs, has no money because it may impact their ability to receive benefits until the sum drops below a threshold.  There is also the question on vulnerability and other taking advantage.

So the first decision is a Will with the estate in part or as a whole going into a Trust.

The next decision follows on that if they do not have the capacity to make decisions on their finances could they realistically make decisions on their welfare?

The welfare element is where the Guardianship is required.  Many have heard of Power of Attorney and the result is often similar the difference being the the Power of Attorney is established with someone that understands and is planning for a future event where they no longer have the capacity to manage their Finances or Welfare.

A Guardianship is granted through the courts and involves professionals who have examined the disabled Young Person and concluded their condition is such that it would be best that a Guardianship order was provided for others to look after the Welfare and Finances of the individual.  Without going in to all the details, but mainly the implications of returns and providing evidence we go back to the recommendation of if they have no money then Financial Guardianship is not required.  So the key factor here is Welfare Guardianship.

Even when the disabled individual is in receipt of benefits these can be managed by a person appointed to manage these payments, i.e. a family member.

For both the Will that establishes a Trust and the Guardianship it will involve a solicitor and legal advice.  As the Guardianship involves going to court it is recommended that you appoint a solicitor to complete the paperwork, appoint the professionals to do an assessment and also to present at court.  A Guradianship order depending on where you live will be granted for a number of years and is likely to involve the process going back through the courts to get it renewed or extended.

If you do not have Guardianship then the decisions made on the Welfare of the disabled person will typically be made by the Social Work department of the Local Authority and although your input would be considered the final decision is theirs.

Complex and intimidating but this process is fundamental in your future planning.  We would also recommend that you consider the option of Powers of Attorney for you and your partner whilst going through this process and at least these should only be needed to be done once.

There are many considerations but we strongly recommended seeking advice and doing this before the person becomes 18 and leaves education, preferably it should be done prior to them turning 16.

The final element is setting up a Trust and this should reflect the areas of the Will, although this does not need to be done at the time of the WIll and Guardianship order.


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