If you have a close relative with a learning disability it is absolutely vital that you write a will. If you do not have a will when you die your money will be inherited according to the order laid down by the law i.e. your sons and daughters may  inherit a share of your estate (i.e. your property or money). Therefore if one of your children has a learning disability, they may inherit on your death if you do not leave a will The Executor of your will may not be able to get a lawful receipt from the person with a learning disability who may inherit some money. This will mean that the Court of Protection will have to be involved. The Court will appoint a Receiver to hold the money on behalf of that person and to give valid receipt to the Executor. In this case the inheritance  that the person with a learning disability receives may well affect their entitlement to means-tested State Benefits as well as being taken into account by Social Services if residential care or any other services are needed.

The Wills and Trusts Team at  Royal Mencap Society provides free information on how to make financial provision for family members with a learning disability. For information booklets on making your will, setting up a discretionary trust, the Mencap Trust Company Limited or for a list of  special solicitors in your area, please contact:

Gina.Collins@mencap.org.uk  or telephone 0207 696 6996

or Ring Mencap’s  Learning Disability Helpline: 0808 808 1111 for help with any questions about learning disability that you may have.

If you want to safeguard the inheritance of a person with a learning disability in your will, the best way forward is to set up a discretionary trust in your will. . You need to appoint trustees (there can be between 1-4 trustees appointed) of the trust, and these should be people you trust. . It is preferable that at least one of the trustees has an understanding of the needs of people with a learning disability. You also need to include a “class” of beneficiaries in your trust, which will include the person with a learning disability as well as other family members (such as your other children or grandchildren) or charities. This is so that your trustees can exercise their “discretion” over a class of beneficiaries.  By leaving any inheritance in a discretionary trust, the beneficiary with a learning disability will not lose any means-tested benefits and will also be protected from others taking advantage of them. The trustees have the discretion to apply the trust fund for any of the beneficiaries, and you can write a “Letter of Wishes” to your trustees to outline your wishes about how the trust fund should operate.

In relation to your will, your “estate” (i.e. any money or property etc.) will be divided according to your wishes on your death. Remember your relative with a learning disability has equal rights of inheritance as any other of your children and may contest your will if they are treated unfairly, or the Local Authority can do it on their behalf.

Legal aid may be available to parents of any offspring with a learning disability who wish to make a will. As the criteria for legal aid may change, check with your local Citizens Advice Bureau who will have a leaflet or further information or contact Community Legal Service Direct on 0845 3454345.

Make sure that any relative or friend who is likely to leave money to your relative with a learning disability knows that they need to leave it to the trust that you have created,  u or they need to leave any inheritance in trust for them.

Individuals with a learning disability may also wish to make a will. The legal test of capacity to do this is an understanding of the nature of the act of making a will and its effects, the extent of the property, and the nature of the claim on him or her. If it appears likely that the capacity of the individual to make a will may be questioned later it is sensible for a solicitor to draw up the will. Legal aid may be available – check with a local wills solicitor or Citizens Advice Bureau.

If a person with a learning disability does not have the capacity to make a will a statutory will may be drawn up. This may be advisable where they have considerable assets in their name or where there is no surviving next of kin, or the next of kin who would inherit in the absence of a will should not do so. The procedure is complicated and so usually a solicitor is instructed to undertake this on the applicant’s behalf. The cost can be high. For further advice, you should speak to a wills solicitor who has experience in this area.

The Wills and Trusts Team at Royal Society Mencap have a Directory of Specialist Solicitors  who have indicated that they have the expertise to assist in drawing up Wills and Trusts for parents of children with learning disabilities and people with  a learning disability. The Team  can also provide guidance on how to find an experienced solicitor, including asking for a free telephone consultation or initial meeting or agreeing a fixed fee for the initial meeting and being prepared for your meeting in order to maximise your time. Contact them on 0207 696 6996 for further information.

Your local Citizens Advice Bureau may also be able to help you to find an appropriate solicitor and help to arrange your initial meeting.

As well as solicitors, other organisations can help you to write your will, such as the:

SOCIETY OF WILL WRITERS (SWW) & INSTITUTE OF PROFESSIONAL WILLWRITERS (IPW)

It is advisable to consult a solicitor or SWW or IPW, especially if the will is complicated or involves a Discretionary Trust. You should not make a homemade will. You should also check how the will writers qualifications, how the organisation is regulated and discuss fees with them in advance.

Northallerton Mencap have not checked or verified the qualifications or any of the below will writing organisations, and does not endorse any organisation.

 
USEFUL BOOKS

Leaving Money by Will to People with Learning Disabilities
Mencaps Guide to Making Your Will
Published by the Wills and Trusts Team, MENCAP – telephone 0207 6966996 to order

Which?  Guide to Giving and Inheriting
By J Lowe    Penguin 1996

A Guide for Families Wishing to Make Legal Provisions for a Learning Disabled Member
Available from Anthony Quinn & Co. 
Telephone: (0207) 242 3332
 

VOTING

Everyone over the age of 18 years is entitled to vote.  They need to have their name entered on the electoral register (this is held by the District Council).

All adults with a learning disability should be encouraged to use their vote.  The Presiding Officer at the Polling Station needs to believe that each person who votes understands the significance of their vote and is able to distinguish between the candidates and answer the statutory question “are you the person whose name appears on the Register of Electors as………….?”