Trusts & Court of Protection/Inheritence query :)

**Patty**

I'd be really grateful if someone could shove me in the right direction with this

Son (16) has been left an inheritence by my Grandmother. Currently, it's in an investment under the terms of her will until he reaches 25 years of age. This is managed by the solicitor dealing with her estate and i asked them for advice but they have no experience in dealing with Court of protection/Disability issues.

Son will in all likelihood, be eligable for ESA (the non-work bit) as he is still non-verbal 24/7 care etc.

Investment is expected to reach circa 20k by the time he is 25.

I've already been advised it's Court of Protection as opposed to POA as he *lacks the mental capacity to understand what he is signing over*.


Is there any way legally, of protecting this inheritence and continuing to claim ESA? Or am i stuck with the scenario of using the capital post-25 a bit at a time until it reaches sub-6k?
I'll admit i have no idea of what would constitute depravation of capital but i would like to take him to Florida Disney again.
Admittedly, the solicitors have not been very forthcoming either over what i could apply to the trustfund for.....(i understand COP will be around 2k.....no idea if thats a legitimate use)

I'm NOT trying to circumvent the system........just trying to find out if it's possible to use this inheritence to improve his life quality as my Nana intended.:)

rogerblack

My understanding.

As your son does not have mental capacity, he will presumably have you as an appointee, dealing with his benefits.

This basically means that for most purposes, any decisions you make are taken as if they were his decisions, if he were fit.

So, while he may not be capable mentally of depriving the benefits system of capital - you may be, in his place.
The rest uses 'he' for convenience, as you're making the decisions in his place.

There are several issues.
If the capital is in the form of a trust that he cannot legally access at all until he is 25, then it may not count until he becomes 25.
If it can be withdrawn, with penalty, as most investments can, then it likely counts.
I believe that at 16, unless it's explicitly in a trust, he can withdraw it, so it would count.
This means it would affect his ESA and other means-tested benefits.
(eliminate it if it's over 16K).

One of the changes in 2013 has unfortunartely meant that very disabled children becoming adults are not, as they were before, treated as if they had paid contributions.
If this had not come into force, then he would be entitled to ESA(C).

The only thing you can do is to write to the DWP and ask for written confirmation that this will be treated as a trust, and not affect his benefits.
This is binding on them if they accept - though they are not legally required to do so, hopefully your sons circumstances will make them be generous.

tomtom256

(Text removed by MSE Forum Team)

As for this query if the trust is written correctly then it will not affect your son's benefits until he is 25, the wording will need to be specific.

After that he just needs to bring it down below £16,000 to be elgible with a reduced amount for his savings.

Once he is below £6,000 then he should get full ESA etc providing that he (or his appointee) has not deprived him of captial in order to claim benefits.

rogerblack

He cannot 'just bring it down' - Any money spent needs to be justifiable expenditure, or preapproved by the DWP. If it's not, then it risks his being treated as still having that money because it was done primarily for the purposes of getting (more) benefit.