Making a Will Benefiting a Person with an Intellectual Disability

Many parents of a child with an intellectual disability or special needs have concerns regarding the provision of welfare for their children after they are gone.   Having a well thought out and considered plan in place it can give comfort to and alleviate many of the concerns parents have.  Each client’s circumstances are unique and depending on same a bespoke tailored solution can be prepared, this may include a Discretionary Trust or a Discretionary Trust Will, the creation of a Decision Making Assistance Agreement or other decision support arrangement.

A well thought out and properly drafted Discretionary Trust Will can go a long way towards alleviating many of the concerns parents have.  Below, we have set out a brief synopsis of some of the primary concepts you will come across in this area of the law.

Capacity

Under the Assisted Decision Making (Capacity) Act 2015, (“2015 Act”) all individuals deemed to have capacity unless evidence to the contrary can be shown.  The overarching and guided principals of the 2015 Act are to empower and recognise and give individuals a voice and legal standings in terms of their ability to make decisions which affect them.  A person’s ability to make decisions for themselves may fluctuate and understanding information relevant to the decision, recall the information long enough to make a choice,  update the information to make a decision and finally communicate the decision.  Legally this is what is known as a functional test or assessment of capacity.

Discretionary Trust

A Discretionary Trust is a legal instrument created by a person (“the donor”) whereby they place chosen assets (money, property) in trust to be held by the trustees for the benefit of the named beneficiaries.  For example a parent (“the donor”) might place €100,000 in trust, appointing their brother (“the trustee”) to hold and use the trust at their discretion for the benefit of the beneficiary.  A discretionary trust gives the trustee absolute discretion as to how and when the trust funds are distributed.  Therefore, it is imperative that the donor is satisfied with their choice of appropriate trustees.  From a means test perspective the beneficiary does not have any beneficial title to the assets of the trust until they are appointed and therefore in the case of an individual in receipt of means tested state support will not be taken into account.

Discretionary Trust Will

Similar to Discretionary Trust, a Discretionary Trust Will is set up as part of the donor’s Will and only comes into effect on the death of the donor. 

 Letter of Wishes

A Letter of Wishes is a document prepared by the donor which sets out their will and preferences regarding the operation of the Trust and as much information as possible about the beneficiary, their specific circumstances and their preferences.  This document should be written in conjunction with the creation of a Discretionary Trust or Discretionary Trust Will.  While a Letter of Wishes is not legally binding, it is an extremely important document and may be of merit should a dispute ever arise regarding the operation of the Trust.  A letter of wishes might set out such things as where parents of a child with intellectual disabilities would like their child to go to school, live etc. 

Guardian or Guardianship

A Guardian is a person who is legally responsible for the welfare of a person who is under the age of 18.  At present in Ireland, it is only possible to appoint a guardian for a person under 18 years of age.  For example, it is not possible to appoint a guardian for a person over the age of 18 years of age and who has an intellectual disability.  Depending on the individual’s particular circumstances an appropriate decision support arrangement could be put in place ranging from decision making assistant to a Decision Making Representative order of the Court. 

Ward of Court

The Ward of Court system has been abolished in Ireland under the 2015 Act. 

Historically, if a person was unable to make decisions because of capacity difficulties, they will be made a Ward of Court.  A Committee was appointed to control the Ward’s assets and make decisions about their affairs. 

All current Wards of Court are currently in the process of being discharged and their wardship reviewed by the Courts.  Again, depending on the specific circumstances the individual concerned the least intrusive form of decision support arrangement, if any, should be considered.  

Under the new system a Decision Making Representative order is the closest arrangement to the former Ward of Court system.