Many parents of a child with an intellectual disability or special needs find the prospect of providing for the welfare of their child, after they are gone, quite daunting.  While parents want to provide as best they can for their child in financial terms, they also do not want to jeopardise the means tested State support that their child may need and be legally entitled to into the future.  In many cases, an individual with an intellectual disability will not be deemed to have sufficient “legal capacity” to own land or to manage their own financial affairs.  The prospect of having their child made a Ward of Court for that purpose is not an appealing one to most parents.

What many parents are not aware of is that a properly drafted Will can overcome most, if not all, of the concerns that many parents have.  We can discuss with you issues such as legal capacity, discretionary trusts, guardianship and letters of wishes.

“Legal Capacity”

Legal capacity means the ability of a person to understand the legal consequences of any particular action.  Any person (whether having an intellectual disability or not) who is under the age of 18 years is automatically deemed not to have sufficient legal capacity.  For any person over 18, the legal test for capacity is whether or not the individual fully understands the legal consequences of any particular action.  Although medical opinion is a relevant consideration when assessing legal capacity, it is not definitive or conclusive.  Therefore, if an individual understands the legal effect of what they are doing, from a legal perspective they have legal capacity.

“Discretionary Trust”

A discretionary trust is created where a person gives their assets to trustees to hold those assets for the benefit of named beneficiaries.  For example; a parent (‘the donor’) might leave their house to their brother (‘the trustee’) to hold the house for the benefit of (‘in trust for’) the donor’s child.  The effect of a discretionary trust is that the child will only benefit when the trustee decides.  In legal and financial terms, this means the child can live in or benefit from the house but does not “own the house” and so it is not taken into account when applying for means tested State support.

“Guardian/Guardianship”

A “Guardian” is the person who is legally responsible for the welfare of a person who is under the age of 18 years.  At this time in Ireland, it is only possible to appoint a guardian of a person under 18 years of age.  For example, it is not possible to appoint a guardian of a person who might be over 18 years of age and who has an intellectual disability.

“Letter of Wishes”

A “Letter of Wishes” is a document that sets out what a person would want to happen after they die.  A Letter of Wishes is in addition to a person’s Will but is not legally binding on the person responsible for administering the assets of another person after they die (‘executor/executrix/personal representative’).  A Letter of Wishes usually sets out non-legal instructions such as the school the deceased person would wish their child to go to, the number of holidays a year they would wish their child to be able to take, where the child would live etc.  Because it is not possible to appoint a legal guardian to a person who is over 18 years of age, the parents of adults with an intellectual disability can give guidance to their personal representatives on the practical care decisions that may need to be made in respect of the child after a parent is gone.

“Ward of Court”

To make somebody a ‘Ward of Court’ means that all of that person’s assets and care decisions are made by the President of the High Court.  An individual is made a Ward of Court where he/she are not capable of managing their own affairs and where he/she does not have sufficient legal capacity to own land.  For example, where a child is left a share in the family home. When a person is made a Ward of Court, the practice is that the High Court appoints a “Committee of the Person”, who is usually a family member, who is made responsible for the personal care of the person who has been made a Ward of Court. The High Court will also allow for the release of money for the benefit of person who has been made a Ward of Court, as the need arises.