Wills and trusts - advice and support

[bmuggers]

Hi Katherine,

My parents are currently applying for finance and welfare deputyship for my brother, who has a severe learning disability and lacks all forms of mental capacity.

We have filled in the COP forms (1, 1A, 1B, 3 & 4), but were also advised that we needed to fill in COP 24, which is a witness statement. We are confused about what we have to put in this witness statement and cannot find any guidelines online. We had previously outlined our reasons for applying for deputyship in COPs 3 & 4 in the ‘further information’ and ‘personal statement to the court’ sections, but should this go in the witness statement instead?

Any advice would be greatly appreciated

Many thanks

Beccy

[KatherineMiller]

Hi Beccy

Thank you for your query.

The witness statement (COP24) allows your parents, as the people applying for the Order, to give more information about your brother’s situation to the Court of Protection. A witness statement can be completed by your parents and by other people who are able to give relevant information. It also allows your parents to state why they feel that appointing them as the Deputies is the right decision for your brother.

COP3 is the Assessment of Capacity and the ‘further information’ section allows them to give any relevant information about your brother’s capacity.

COP4 is the Deputy’s Declaration and the ‘personal statement’ section is for the proposed Deputies to set out why they wish to be the Deputies.

The information provided on the forms needs to be specific to your brother’s situation and needs to demonstrate to the Court of Protection why a Deputy Order is appropriate in the circumstances.

I hope that is helpful but please let me know if you have any further queries.

Kind regards

Katherine

[Jayne_E_Ryan]

My son turns 18 this year. He has no concept of money and needs constant support. He has a savings account we set up when he was born, in his name with me as his trustee. I am concerned that benefits such as job seekers that he will have access to as an adult, will be reduced or he will not qualify as he has “savings”. Also, we have 2 other typical children, and currently our will is split 3 ways. We are concerned that when our son inherits,this money may have to be used to fund his care/ access to other services. Would it be better for him if we did not include him in our will? Also, I understand that once he is 18 we may be required some legal status to have a say in his medical and social care in the future. How do I obtain this and what are the options?

[KatherineMiller]

Hi Jayne
You have raised a few interesting points in your query so I have tried to address each of the issues separately.

1. Savings – if your son were to claim any means tested benefits or funding in the future then he would be financially assessed to check his eligibility. Therefore, his savings will be taken into account and, the effect on his eligibility will depend on the amount he has and the limits in place at the time. The capital limits are different depending on the type of benefit being applied for and more information is available on the gov.uk website.

2. Will – if you leave your son a share of your estate directly then any assets received by him will need to be taken into account in the financial assessment of his eligibility for benefits and funding. This is one of the reasons we recommend using a trust to make provision for him. A trust ensures that provision can be made for your son by trustees who you choose. The Wills and Trusts Team at Mencap can provide more detailed information on writing a Will and setting up an appropriate trust. They can be contacted on 0207 696 6925.

3. Decision making – you mention obtaining legal status regarding your son’s medical and social care in the future. I believe you are referring to your options regarding decision making on behalf of your son once he is an adult. The provisions of the Mental Capacity Act 2005 (MCA) set out how decisions can be made on behalf of a person who lacks mental capacity to make their own decisions. There are a number of principles that should be followed to ensure that decisions made for your son are done so in his best interests. As I have mentioned in a previous post it is possible, but not routine, to obtain a Deputy Order for Personal Welfare. The Court of Protection can appoint a person or people to act as a Deputy and make certain decisions on behalf of someone who lacks capacity. However, as the MCA provisions should be sufficient to deal with decision making on behalf of a person who lacks the mental capacity to make their own decisions, it is important to follow these provisions first. The Court of Protection will mainly consider situations where there is a particularly difficult or complex decision to be made, a dispute has arisen or there will be ongoing help needed. The Court will consider the circumstances of your son’s situation and the person applying to be the Deputy will need to provide evidence to the Court of the need for an Order to be issued.

I hope that gives you some initial information regarding each of those points but please do let me know if you would like any further detail.

Kind regards

Katherine

[Jayne_E_Ryan]

Thank you so much Katherine for your valued advice. Much appreciated.

[pollyanna3]

I would like some advice of setting up a discretionary trust. Can both savings and property be placed in the Trust? My daughter owns half the house we live in but we are now looking at supported housing as an option for her in the future. I presume we will need to sell this house so she can access the funds to ‘rent’ something in her own name. Many thanks.

[KatherineMiller]

Hi Pollyanna3,

Thanks for your question.

Yes, savings and property can be placed in a Trust, in fact most assets can be placed in a Trust. If you need more information about the type of assets that are suitable for Trusts then I would suggest that you speak to a Trust qualified financial adviser.

The thing to be careful about is the tax treatment of a Discretionary Trust - for example, most income is taxed at 45% - and so you need to think carefully about what the assets will be.

Assets that are put into the Trust can be changed by the Trustees at any time.

If your daughter owns a share in your home then just be careful about who puts this in the Trust. Unless you have specific authority to do so, you cannot gift your daughter’s assets into Trust, even where she is a beneficiary of the Trust.

I hope that this helps.

Kind regards

Katherine

[pollyanna3]

Many thanks Katherine for your reply, I see I will need to speak to a financial adviser who specialises in Trusts.

[caseslot]

Hi Katherine.
I have 3 sons, my eldest (24) is typical, my 19 year old has mental health problems and mild learning difficulties and my youngest (17) has severe learning, physical and communication difficulties.
I am a single parent and have made a will leaving any money, life insurance and property belonging to me in a discretionary trust with my 3 boys being the beneficiaries. I also have a letter of wishes setting out how I wish the money/property to be spent.
Recently I have just found out that I may be getting a sum of money from my divorce settlement. This will hopefully be enough to purchase a house for myself and my 3 children to live in. We currently live in an adapted council property.
The property will be left to the trust fund when I pass if I have bought it in my name.
Is there any advantage to me buying the property in the name of all 3 of my children if that is even possible? (I claim Carers allowance and income support) I do not know if this will be seen as deprivation of income?
My main aim is to secure a property that my youngest son can continue to live in for the rest of his life with support or can be sold to provide a suitable home in the best place for my youngest. Obviously I want to prevent my youngest having to sell the property to pay for care that he will definitely need.
I’m tying myself in knots trying to figure out the best way of doing things.
Sorry it’s a bit mixed up but any advice at all is appreciated.
Thank you

[KatherineMiller]

Hi @caseslot caseslot

Thank you for your query.

Based on the information that you have provided, buying the property in the name of your children may not be a good option for you. There are a number of factors to consider, particularly the tax implications and how the property will be managed by your children in future. You also need to consider the consequences of anything happening to your children and how this will impact the rest of the family. The divorce, death or even bankruptcy of any of your children could have a serious effect on what happens to a share of the property.

In addition, your youngest son will not be able to own property until the age of 18 and, as you mention he has severe learning difficulties, he will need to have the required mental capacity to accept a share and deal with any necessary documents that are required unless a Deputy is appointed to do this on his behalf.

As you already have provisions in place to leave your assets to a discretionary trust on your death, it might be best for you to own the property and then leave it to the trust, as you suggest. Your wishes about providing a home for your son can be set out in the letter of wishes. It will then be up to your chosen trustees to make suitable provisions at the time to provide a home for your son.

Any assets held in the discretionary trust will not belong to your children and, if your son requires care in future, the assets in the trust will not be taken into account when assessing his financial situation.

I hope that helps to clear things up but please let me know if you have any further questions.

Kind regards

Katherine

[caseslot]

Thank you very much for your prompt reply and the excellent advice. If I have any further questions i’ll come back to you.
Once again, thank you so much.

[Richmondos]

I have just submitted an application to the Court of Protection for Deputy for Welfare. I understood that permission was not required for a child under 18 years old. The forms have been returned and a note written on saying permission is required. Is this the case as it will lengthen the process?

[KatherineMiller]

Hi Richmondos

You can apply for a Court of Protection Personal Welfare Deputy Order for a child from the age of 16 and you will need permission.

You may find the Court of Protection Guide ‘Making a Personal Welfare application to the Court of Protection’ and its Practice Direction 8A helpful as these give more details on the need for permission.

Kind regards

Katherine

[Richmondos]

Our application for welfare deputies has been accepted and we have been sent forms to serve on all the interested parties. We have been told to send copies “all documentation” to each party. Does this mean COP1, COP1B, COP3 and COP4 and there is also a witness statement COP24? Also, we can explain to some extent to our daughter what is going on but she cannot fill out any forms, how do we deal with this?

[KatherineMiller]

Hi Richmondos

If there are respondents then they need to receive all the documentation but if you only have to notify other people of the application then they don’t need to receive copies of everything.

Your daughter does not need to complete any forms but you must attempt to explain it to her and give her COP14 and COP5. You will then complete COP20A and return it.
If you are not clear on any element of the process then the Court of Protection should be able to clarify any points with you.

Kind regards

Katherine

[Nikki_5674]

Hi Catherine, this is a very welcome forum for us newbies and I would very much welcome some advice.

I am the sister to a very beautiful lady with severe learning difficulties. Our mum sadley passed away last week and I am left with the task of sorting everything out.

My mum has left a will stating she wants her house to be divided between her 3 children. My sister also has a small amount in a court protection fund.

So here’s my problem. It was always my intention my sister can live with me but my house is a little too small to incorporate her with 2 teenage boys. My mums house could accommodate us all but is in a desperate state and needs some serious renovation to be considered habitable.

Whilst I m happy to sell my family home and move my kids into my mums so my sister has the care she needs, I am worried about the financial implications. Will I be able to access her court fund or share of inheritance to help renovate the house?

Is anyone able to advise, I m desperately frantic trying to sort all this out so that there is minimum impact on my sister and my kids

[frances_is_a_sibling]

Hi @Nikki_5674, welcome to the forum. I’m so sorry to hear that your Mum passed away last week and of the difficult situation you are now in regarding housing and finances. I am a sibling too - my brother has severe learning disabilities. I hope that you are able to get some expert advice on this post. Best wishes, Frances

[KatherineMiller]

Hi Nikki_5674,

I’m so sorry to read that your mother has passed away. It must be a very difficult time for you, made worse by the worry of where you will all live.

If your sister has money with the Court of Protection there will be a Deputy appointed to manage that money. The Deputy has to manage the money in your sister’s best interests. If that means helping with living arrangements, then that can be done.

If your mother’s Will gives your sister a 1/3 share in the estate then this would need to be administered by the Deputy on behalf of your sister. Again, the Deputy can make decisions about how this is dealt with as long as it is in your sister’s best interests.

It is entirely possible for you all to move into your mother’s home but this is a big decision to make and so I’d recommend that you take legal advice from someone who understands estate administration, Court of Protection matters and protecting someone with a learning disability. The Wills & Trusts team at head office maintain an approved lawyer list for each county which might help you choose a lawyer local to you to help you out.

Kind regards
Katherine

[Jacks_Dad_John]

Hi Katherine

I’m a trustee, along with two others, for a discretionary trust of which the principal beneficiary is my special needs step-son who is in residential care. We have had a Vulnerable Person Election in place for several years. I’m also his Deputy for both Property & Affairs and Personal Welfare.

The trust has two properties in it, amongst other assets.

I have been advised that the rules surrounding Charitable Incorporated Organisations have changed, and wondered if this route would be open to the Trust, and if this is the case, what would be the pros and cons of us going down this route.

Best wishes
John

[KatherineMiller]

Hi John

I’m not an expert on charity law and Charitable Incorporated Organisations so can’t offer much advise on the pros and cons of setting one up. If you are considering transferring the trust fund to a CIO then you will need to check whether the trustees have power to do this under the terms of the trust. I’m also not sure from your question what you want to achieve by using a CIO because its purpose as a charitable structure is much wider than the trust to provide for your step-son. Apologies if I have misunderstood your query.

Kind regards

Katherine