How not to provide for your disabled child

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There are a significant number of older people in the community who have been caring for their disabled adult children for much of their lives – you could be one of them.

The Issue

A subliminal concern for many of these parents is what will happen to their child when the parents die. Let’s say you have 3 adult children, one of whom is severely disabled. How would you provide for this child in your Will?

Here are 2 ways some parents choose to:

  1. Disinherit the disabled child. After all he/she is receiving a disability pension, has no significant financial needs and the ‘Government’ will look after them when you die; or
  1. Pick one of your other ‘responsible’ children and leave additional assets to them for them to use to care for the disabled adult child.

Disinherit?

The problem with this approach is that it opens up your estate to an almost inevitable challenge from your disabled child albeit through the auspices of some decision maker such as the public trustee.

Being disabled does not disqualify them from contesting your Will. In fact, they would have very good prospects of doing so successfully. Disinheriting would also simply bequeath a large part of your estate to the lawyers.

Pick One?

The responsible child you have chosen may very well have expressed a genuine desire to provide the care and support that your disabled child may need after your death. You are comfortable in relying upon that almost filial and admirable sense of duty that the responsible child has expressed to you during your life.

Giving a larger share of your estate to that child in the expectation that they will use it for the benefit of your disabled child can be the proverbial ‘triumph of hope over experience’. History suggests that the responsible child may very well shift their position after your death knowing that they don’t have to answer to you. Keeping the larger inheritance is too much of a temptation and your adult child may suffer the consequences.

Not only that, as with disinheriting above, the disabled child may well challenge the Will as indeed may any of the other adult children who were not deemed ‘responsible’ enough.

Alternatives?

There are some optional alternatives that you could use that don’t come with the downsides of the above choices. One of them includes, for example, a special disability trust which has terrific  Centrelink benefits for the disabled adult child. The child can get a benefit from the trust and keep their Centrelink benefit at the same time.

Best advice is to get advice on the alternatives. Otherwise all the care and attention that you gave to that child in your life may well evaporate on your death. That’s the last legacy you would want to leave.

Brian Herd
Recognised as one of the leading experts in Australia on elder law, aged care, retirement, estate planning and disability and a regular author, broadcaster and popular presenter on many elder law subjects and issues.