Discretionary Trusts

planning

Parents of intellectually disabled children should ensure they have structures to protect their child after their death, according to a newly published legal guide. Down Syndrome Ireland and Pearts Solicitors launched the guide for the parents od children with an intellectual disability.

The booklet ‘ Planning for the Future’ , deals with wills, estate and tax planning. It addresses parents’ concerns about providing for children who are incapable of looking after their assets in the future.

Tadgh Kelly, a solictor with Pearts and author of the guide, said that if parents failed to make a will, the law would not make any special provision for a child with an intellectual disability. ” This booklet gives simple, step by step guidelines to help parents take control and ensure that their child’s interests are appropriatley and securely provided for into the future”, he said.

“If you die intestate, without a will, the Succession Act of 1965 kicks in and your estate is carved up between relatives in a prescribed manner”.

He said that such a scenario was nor ideal for children with special needs, as they would need “extra provision to be made for them”. He recommended that parents should draw up a will, with any assets left to the child in question on a “discretionary trust” basis.

Kelly said trustees must be allowed to make decisions about how the money in the truct was spent. ” The way a discretionary trust is set up is that it works only if the trustees are unfettered” he said.” Trustees must have absolute discretion as to how monies are spent , but the monies lust always be used for the benefit of the beneficiary. The trustees must have independence in how they use the trust for the person who lacks capacity”.

The booklet also gives advice on nominating trustees. ” Thats why they are called trustees, as they are a most trusted person. It’s an onerous task, as they must care for people who can’t fully care for themselves”, Kelly said.

He explained that the absolute discretion of the trustees was important for tax reasons, as an exemption from discretionary trust tax for a permanently incapacitated person woudl be lost if the trust could no longer be classed as discretionary.

While parents cannot specify how their assets are to be used in the future, they can leave a “letter of intent” with their will, including personal details about their child for any future guardians or trustees. The booklet advises how to draft a letter of intent.

Kelly said that a letter of intent could not encroach on the discretionary nature of a trust, and trustees could follow the guidance or not , as they wished. He said people should not try to write their own will where a discretionary trust is involved. The booklet which costs €10 , is available fro www.downsyndrome.ie

By Emma Kennedy

Sunday Business Post June 26th 2011

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