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Losing the Lot (Wills and Intestacy)

You have probably already discovered that, although there are a lot of well meaning professionals out there with good intentions, they don’t always know a lot about learning difficulties.

You probably imagine you are going to provide life’s little extras for your children out of your lifetime assets. Disabled Person’s Trusts are usually suggested because of the tax advantages. However, if you have a young person who is going to be expensive to Social Care, then they can empty the pot down to £23,000.00. Disabled Person’s Trusts, if disability is severe, can be just not clever enough. Money in a Discretionary Trust can be treated as the property of your young adult by Social Care. Even a Trust of millions can be emptied out very quickly by Adult Social Care. There is a section in our book on the subject if you read the chapter “on the naughty step”, sub heading “losing the lot”, at pages 219 to 226.

The only certain option is, in reality, NHS Continuing Healthcare, because that is non-contributory, and therefore the pot won’t get emptied out. That might be a possibility.

There is also the issue of whether a Disabled Person’s Trust is the right vehicle if he/she is able. Loss of entitlement to PIP means falling out of eligibility for a Disabled Person’s Trust. It is not unusual, nowadays, for people to lose entitlement to PIP due to questionable decision making by the DWP combined with not completing the forms properly.

If the young person’s needs are going to be expensive, one of the “silver linings” to the cloud is, if your young person is ever detained for treatment under Section 3 of the Mental Health Act, he/she would have an entitlement to Section 117 aftercare from Social Services, which is not means tested.

What I would be concerned about is, if these matters have not already been brought to your attention, whether the advice you have received is specialist enough. Holistic consideration of the individual is essential.

Special educational needs and learning difficulties are not a “one size fits all”. Each young person is different and requires individual thought. Sen Legal – great with SEN.

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