Sandra and Peter had a son, Max, who suffered from autism.  Max had a tendency to overly trust people and, as parents, Sandra and Peter understandably kept a watchful eye over everything he did, especially when it related to money. 

As he turned 16, they become increasingly concerned about his ability to deal with the pocket money they gave him.  He was extremely trusting of people and would often give away his money to friends and to people he hardly knew.

When it came time for them to complete their Wills, they were not sure what was the best thing to do for Max.  They wanted to leave their estates equally to their three children, however they were concerned that Max would struggle unless they made special plans for him.

Your Will dictates where your assets go on your death and also appoints somebody to administer and manage your estate (your executor).  It also covers any gifts of personal items or cash to any specific person(s) and covers guardianship of any children who are minors.

Deciding what is best to do for the next generation can be challenging – even more so if you are providing for a child or children with special needs.  There are many things to consider and options available. Here are some tips that you may find useful:

  1. Assess your child’s ongoing needs … This needs to be done realistically.  What is it that they need after you have passed on?  Will they need day to day care or just somebody to help them with their finances?  Some young adults with autism would be able to deal with looking after themselves or receiving a cash sum but some will not.
  2. Think about living arrangements and ongoing care … You need to think about who you would want your child to live with.  You cannot nominate who will be responsible for day to day care (custody) for children in your Will, as only a Court can decide this, but you can nominate someone to be guardian of your child (until they reach age 18).  The guardian will be responsible for making decisions in relation to the child’s education, maintenance and wellbeing.  A Court would generally strongly consider the person who the parents have chosen as guardian when looking at any application for day to day care.
  3. Consider setting up a Trust during your lifetime … Setting up a family Trust during your lifetime is one option.  Property owned by a Trust does not form part of your estate and would be dealt with in terms of the Trust deed rather than your Will.  You could be trustees of the Trust during your lifetimes and appoint somebody in your Will to take over your role as trustee.  You could appoint the special needs child as one of the beneficiaries meaning that he or she would not have direct access to the assets owned by the Trust, but the trustees could make distributions to the child from the Trust at any stage if they felt it appropriate.   The Trust can continue after your death.
  4. Consider setting up a Trust in your Will to provide ongoing income to the child … A common way to deal with gifts to special needs children (and not only special needs children, sometimes spendthrift children) is to set up a Trust for them in your Will.  You would give a certain part of your estate (or a certain sum) to the Trust and appoint trustees to be in charge of the Trust.  Those trustees would have the power to make distributions to the child for education, advancement or for any other purpose for which the child (or the child’s guardian) requested it.  You would need to ensure that the trustees were people you trusted and who knew your child and their needs.  Having a Trust set up in your Will means that the child does not receive any cash outright and the money would instead be managed by the trustees.  You could specify when the Trust would wind up or leave that to the trustees’ discretion.
  5. Leave a specific gift to the child at a certain age … The current law provides that a child cannot receive part of an estate until they have reached age 20.  If you feel your child may be able to cope with receiving money, but not until later in their life, you can specify in your Will that they will not receive their portion of the estate or their gift until they reach another older age.  The executors of the estate would then hold onto the funds until that point and could only release some of the funds prior to that date if they were required for education or advancement of that child. 
  6. What happens if the child dies before the Trust can distribute or they reach the age you set out?  In the event that the child dies before the date the Trust distributes, the other listed beneficiaries of the Trust will receive the share of that child.  It is at the trustees’ discretion as to which other beneficiaries receive a distribution and how much they receive.  If you pass away without making a Will, then the law dictates where your estate will go.  The default position does not include consideration for special needs children.  A Court would also have to decide who would be guardian of your child or children.  The relatively simple process of making a Will saves putting your family and child through unnecessary stress.