Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 17 February 2018.

During the week, Manny gave a presentation regarding estate planning for carers. An extensive Q&A session raised a number of important issues. Some of the issues are addressed in this week’s Hypothetical.

Peter has three children. One of his children, Chris, suffers from a severe mental disability.

Peter unexpectedly passes-away without making a will. His estate is divided equally between his three children under the rules of intestacy.

The Public Trustee (NSW Trustee & Guardian) takes control of Chris’ share of the estate. The Public Trustee is slow and unresponsive. Chris is unable to access proper provision from Peter’s estate to meet his needs in a timely fashion.

If Peter had planned his estate properly, this could have been avoided.

Peter could have appointed a friend or family member as executor, who would be proactive in making sure that Chris was properly looked after.

Peter could have provided greater provision for Chris, given that his needs are greater than his siblings.

Chris’ share of the estate could have been placed into a discretionary trust, ensuring that the executor could protect Chris’ inheritance, whilst being able to easily provide him with immediate provision when necessary.

Peter’s will could have ensured that upon Chris’ death, any funds that were remaining in trust on his behalf, would be distributed according to Peter’s wishes, which could have included a charitable gift to assist in the research and treatment of Chris’ disability.

The executor could also have been granted the power to deposit Chris’ share into a special disability trust, ensuring that his Centrelink benefits are maximised.

Chris’ provision could have been tailored to permit him to continue to reside in the family home, without disruption.

Peter’s will could have also set out his wishes regarding Chris’ guardianship.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.