SCENARIO 4 - Planning for the future of a daughter with a mental illness
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Joy is a 62 year old widow and receives a disability pension. She has 5 adult children, one of whom, Angela, is mentally ill and has multiple health issues. Joy requires the legal assistance of a lawyer to have her will amended so that her gift to Angela in her will is held on trust for Angela when Joy dies.
Possible advice for Joy:
Before visiting a solicitor, Joy will need to do some planning. Joy receives a pension which means she must be on a low income. But she might own a house worth a lot of money. There are a number of questions Joy should ask herself:
- What sort of a life does she want for Angela?
- What does Angela want in her life?
- What does Angela need?
- How much of what she owns does Joy want to leave to Angela?
There is no rule that says Joy has to leave what she owns to her five children in equal shares. If her other children do not need a lot of financial help, Joy might decide to leave more to Angela in her Will than she leaves her other children. It would be best if Joy discusses these plans with her family.
One option that Joy has is to leave Angela a share of her money and/or property in Trust under her Will. A Trust is an alternative way of leaving property or money to a person you care for. If Joy chooses to set up a Trust she will need to think about the people she might appoint to be Trustees. It is probably best that Joy appoints at least two Trustees. She could appoint one or more of her other children, but it might also be sensible to appoint at least one Trustee who is outside her family.
Joy will need to state in her Will what she wants to happen to any money still in the Trust when Angela dies. Joy could try to find out, to the best of her ability, the hopes and wishes of Angela and have them written into the Trust.
Joy could direct that any remaining money goes to her other children. If some of those children are also Trustees, Joy will need to plan carefully to avoid a conflict of interest arising. Conflicts of interest sometimes arise in situations, in which someone in a position of trust, such as Trustees of a Trust, has a competing personal interest. A conflict of interest may arise here because the other children might know that the less they spend to assist Angela, the more money will be left for them after Angela dies. This personal interest might make it difficult for the other children to fulfil their duties to Angela impartially. If Joy would like to reduce the risk of this happening, she could appoint at least one Trustee who is outside the family. This Trustee could then make sure that the trust money is spent for the benefit of Angela.
In appointing Trustees, Joy should try to appoint people who:
- are around the same age as Angela,
- can manage money,
- will listen to Angela,
- will take into account what Joy wants for Angela, and
- will take advice from others who assist Angela to get what she wants and needs.
Joy can also write a Memorandum of Wishes which can be part of her Will, or can be attached to her Will. In the Memorandum of Wishes Joy could state how she would like her Trustees to spend the trust money for Angela. A Memorandum of Wishes is not binding on Trustees - they don't have to follow it - but Joy can ask them to read it and sign it.
In a Memorandum of Wishes Joy can state:
- what sort of a life Joy wants for Angela,
- how Joy wants her Trustees to use the trust money for Angela,
- specific things Joy is happy for money to be spent on (e.g. hobbies, watching favourite sporting team, travel), and
- how Joy does not want the trust money to be used.
