Whether your child is autistic, blind, has Downs Syndrome, or is severely disabled in some other way, you will worry about their future if something happened to you.

Instead of worrying and doing nothing about it, take control of what you can, learn as much as you can, and put in place a plan so that your child can succeed.

Your special needs child is not going to be a child forever, but is likely to be at least partially dependant on you even when they’re an adult.

It is crucial for you to think about who should step into your role if you’re no longer here.

Choosing a trustee

It’s important to remember that a trust for a special needs child is likely to have to last the life of your child. So the selection of your trustee is very important.

You will probably want more than one (often a legal requirement, as well as providing you a safeguard), and they have to be likely to outlive your child, and be prepared to take on the responsibility.

The trustee needs to be sympathetic and understanding of the needs of your special needs child, they need to establish and maintain long-term investments strategies, and they also need to handle the ongoing requirements of the child as they arise.

Using a professional trustee company, even in conjunction with another family member, may give you the peace of mind that your child’s inheritance will be well looked after for the rest of their life.

Choosing a beneficiary

Who looks after your special needs child if something happens to you os perhaps more important than for an ordinary child.

Your child needs to be comfortable with the guardian you choose.

The guardian also needs to know your child’s needs, routine, and medical requirements.

I have written an article on choosing guardians here.

Trusts

There are three primary trusts to consider in your Will, if you have a disabled child:

• protective trust
• special disability trust, or
• discretionary trust

It is possible to set up a protective trust, which is regulated by legislation. Your executor or another appointed trustee manages the legacy and holds it on behalf of your vulnerable family member.

The trustee is able to use income earned off that legacy for the benefit of your vulnerable family member, but the capital cannot be touched.

When your vulnerable family members dies, your Will will nominate who that capital is ultimately left too.

A protective trust would be more suitable for a family member who is gambler, alcoholic, drug-user or bankrupt.

But it could be used for a special needs child, perhaps in conjunction with another trust.

Another alternative, and this trust can be set up whilst you’re alive or in your Will, is a special disability trust. This trust can be used for a specific person who meets the disability requirement in the Social Security Act 1991. There is a gifting concession of $500,000 into a special disability trust, and also the assets of a special disability trust (up to approximately $596,000) are not assessed as assets for Centrelink purposes – so your disabled family member will still retain their full pension.

The requirements of such a trust are pretty stringent, so you should seek legal advice, but this could be a very useful trust for your disabled family member, and a way to provide for them in your Will.

Finally, you can utilise a discretionary trust in your Will – these are often called testamentary trusts (although all trusts set up in a Will are testamentary trusts). A testamentary discretionary trust, if worded correctly, can achieve what the above trusts can achieve in your Will, and more. For example, if there are more beneficiaries of the testamentary discretionary trust than just your vulnerable family member and the trustee is a responsible person that you trust, then the assets can be protected as effectively from and for your vulnerable family member.

With a testamentary discretionary trust, the trustee can issue income at their discretion to the vulnerable beneficiary and undertake income splitting between beneficiaries, and they can also release capital (unlike a protective trust).

Detailed succession clauses can be built in, in case your trustee becomes unable to perform the role or dies, so that you can always be assured of who is in control of the trust.

You can also leave detailed instructions to your trustee about what your intentions of the trust are.

Finally, you can also build in another role into the trust – the role of protector – which is another independent person who needs to approve of certain decisions before they can occur, if you want that extra level of protection.

You could also think about isolating your superannuation death benefits in a trust specifically for your special needs child.

If you want more information about protecting your special needs child, please click here for more information or to contact me by email for some free advice.

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