Including beneficiary with mental health difficulties in a will

planningahead

TBagpuss wrote: »

One option may be to have your other children (or one of them) plus a solicitor, as trustees. This could allow for the lay trustees to do most of what might be needed, but would mean that they have the backing of a professional (and can use them as a scapegoat if they have to) if they need it. Discuss it in detail with the solicitor.

I am not familiar with Scottish Law, but a discretionary trust with other beneficiaries (such as hi siblings, any children he may have, or his nieces and nephews) might limit both his ability to have the trust ended, and any benefits implications.

Depending on how his mental health issues present themselves, and how much this varies, would there be any possibility of discussing it with him, when he is well?

BobQ wrote: »

OP, I agree with Tbagpuss. You probably need to set up a discretionary trust.

Unless you have reason not to trust his siblings asking them to be trustees is a plausible option with a professional as a fall back. Is there anyone else that you might trust with this responsibility?

Remember that while you can probably rely on a reputable solicitor's firm to be trustees this could be expensive. They will probably want two solicitors to act and they will charge significant fees to carry out the duties which will eat into the capital/income. Those duties will in part depend on the instructions you lay down for the trust and how it is to be invested.

You also need to think about what you want to happen to the trust if he were to die. The trust also has to have a situation when it is dissolved..

Thanks, both of you. There's been quite a bit of food for thought in everyone's suggestions. Despite my reluctance to involve his sisters, it looks as if we'll have to consider that. There would certainly be no trust (small t) concerns. It's not just that it's a big undertaking, but also that he can be very difficult to deal with. We'll talk to them about it to see how they feel. Presumably we could empower them to use Trust funds to make use of a solicitor where necessary rather than have one appointed as a Trustee? There's not really anyone else suitable: there are other family members we would trust but they're either the same age as or not much younger than us, so assuming we live to the ripe old age we intend there wouldn't be much point in using them.

I'll look forward to the conversation with my son explaining how things will be. :eek: In the long run it will make things simpler and easier for all three of our children, but ....... (We will do it at an 'appropriate' moment.)

BobQ

planningahead wrote: »

Thanks, both of you. There's been quite a bit of food for thought in everyone's suggestions. Despite my reluctance to involve his sisters, it looks as if we'll have to consider that. There would certainly be no trust (small t) concerns. It's not just that it's a big undertaking, but also that he can be very difficult to deal with. We'll talk to them about it to see how they feel. Presumably we could empower them to use Trust funds to make use of a solicitor where necessary rather than have one appointed as a Trustee? There's not really anyone else suitable: there are other family members we would trust but they're either the same age as or not much younger than us, so assuming we live to the ripe old age we intend there wouldn't be much point in using them.

I'll look forward to the conversation with my son explaining how things will be. :eek: In the long run it will make things simpler and easier for all three of our children, but ....... (We will do it at an 'appropriate' moment.)

It sounds as if your son will need professional care at some point, either when you are no longer there or no longer able to cope. So I would think of asking his sisters to take on the trustee plus a solicitor's firm, but making it clear that the solicitor is to advise them but to take the responsibility on only if they are not able to do it. You have to think long term with this and it will better to have the solicitor act than have nobody. You can also allow your daughters discretion to appoint another trustee in the future. But all that needs professional advice to draft.

planningahead

BobQ wrote: »

It sounds as if your son will need professional care at some point, either when you are no longer there or no longer able to cope. So I would think of asking his sisters to take on the trustee plus a solicitor's firm, but making it clear that the solicitor is to advise them but to take the responsibility on only if they are not able to do it. You have to think long term with this and it will better to have the solicitor act than have nobody. You can also allow your daughters discretion to appoint another trustee in the future. But all that needs professional advice to draft.

That makes sense. My son is treatment resistant schizophrenic as well as having other issues apart from the substance abuse. I'd like to think that at some point a new medication will help him, but need to plan on the assumption that it won't. We would have much preferred to keep my daughters out of it for their sakes, but I will speak to them about it before seeing a solicitor. Ultimately, he'll have to take the 'hit' of a solicitor over-seeing things if they don't want to because we can't risk what might happen if he simply has the money. That's based on what he has done when he has had money in the past and he's worse now.

I am thinking long term (hopefully!), so we'll take time to digest what people are saying and talk to my daughters as well as any agencies which might help before seeing a solicitor.

I very much appreciate everyone's input here. It's very helpful with getting more of a handle on how to proceed and has raised a number of things we hadn't thought of.

dzug1

planningahead wrote: »

, so assuming we live to the ripe old age we intend there wouldn't be much point in using them.

Do remember that this will is not forever - if you do live to a ripe old age then you will surely want to revise it at some stage to fit your changed circumstances

Newly_retired

My mum set up a trust fund for my sister before she died. Two family members are trustees. The fund pays out a set amount each year, about £1400 pa I think, which does not affect her benefits or care home fees.
Nobody needs to do anything once it is properly set up. This was done with the help of a solicitor expert in trusts and a financial advice company to get the best long term investment.
This was done 15 years ago and works with no intervention. My sister is normally limited to £20 spending money a week, which her Home dishes out, but she vaguely knows there is a fund she can access if she needs more. Her daughter has POA and can pay any additional bills from this fund.
I guess it would have been possible to set the trust fund up to pay out on a monthly basis, which would then not involve anyone else. That would not be a huge amount for your son to cope with.
If my sister had been given the lump sum, she would have spent it all madly by now, or given it away.
Apart from setting it up, there is no solicitor involved to eat away the funds.
When my sister dies, what is left will be divided between her son and daughter.
Hope this helps.

planningahead

dzug1 wrote: »

Do remember that this will is not forever - if you do live to a ripe old age then you will surely want to revise it at some stage to fit your changed circumstances

Thanks. I take your point, but as it looks as if the Trust route is the one we'll need to take that will be relatively expensive so we won't be keen to change things if we don't need to. We're both in our sixties. I would anticipate that the one big change will be when one of us dies. The only difference then is likely to be that the survivor will leave everything to our children. In an ideal world, another change would be some miraculous new treatment for our son so there would be no need for special arrangements: unfortunately I'm not holding my breath for that one.

planningahead

Newly_retired wrote: »

My mum set up a trust fund for my sister before she died. Two family members are trustees. The fund pays out a set amount each year, about £1400 pa I think, which does not affect her benefits or care home fees.
Nobody needs to do anything once it is properly set up. This was done with the help of a solicitor expert in trusts and a financial advice company to get the best long term investment.
This was done 15 years ago and works with no intervention. My sister is normally limited to £20 spending money a week, which her Home dishes out, but she vaguely knows there is a fund she can access if she needs more. Her daughter has POA and can pay any additional bills from this fund.
I guess it would have been possible to set the trust fund up to pay out on a monthly basis, which would then not involve anyone else. That would not be a huge amount for your son to cope with.
If my sister had been given the lump sum, she would have spent it all madly by now, or given it away.
Apart from setting it up, there is no solicitor involved to eat away the funds.
When my sister dies, what is left will be divided between her son and daughter.
Hope this helps.

Thank you. It does help.

BobQ

planningahead wrote: »

I am thinking long term (hopefully!), so we'll take time to digest what people are saying and talk to my daughters as well as any agencies which might help before seeing a solicitor.

.

What I was trying to say in a gentle way is that in the long term you cannot foresee everything that might happen.

You might not live as long as you hope, your daughters might emigrate or might not live as long as you assume. He might be the longest lived, in which case a solicitor (or their successors) will at least be there come what may so ought to be considered as a fall back option.

planningahead

BobQ wrote: »

What I was trying to say in a gentle way is that in the long term you cannot foresee everything that might happen.

You might not live as long as you hope, your daughters might emigrate or might not live as long as you assume. He might be the longest lived, in which case a solicitor (or their successors) will at least be there come what may so ought to be considered as a fall back option.

Thanks again - good points and good advice.

I had considered the possibility of my daughters' deaths or emigration, not really that both could die before their brother or emigrate, but of course that's perfectly possible.

Cheery stuff, this forward planning!

ameliarate

Hi can I just jump in as I am currently (still) trying to sort out my sister's will and she had exactly this situation. Her son has mental health difficulties and drug abuse problems. She left myself, my daughter and a friend as trustees of a discretionary trust. I had always had a good relationship with my nephew but after her death he became increasingly paranoid and psychotic to the point where we now have no relationship at all.

Our plan now is to change things to a life interest trust with Solicitors as trustees, as the pressure of being trustees is becoming too much for us.

As someone pointed out we can not know what might happen in the future.

He has now married a girl he met through an Escort Agency (yes I do know this for a fact) :eek: they had only known each other three months when they got married.

I would strongly suggest NOT using your daughters as trustees for this reason.