Disability - Concerns and Responsibilities Beyond the Grave
For what are we born if not to aid one another? - Ernest Hemingway
You may, as a parent, relative, carer or friend have concerns about a person's current and future
Concerns may arise where you currently care for someone who is chronically disabled.
The question of what happens to that person after you die inevitably arises and is difficult to
Placing the person cared for in an institution is one solution.
Alternatively the carer may provide for the future needs of the person being cared for by creating a
protective trust during the carer's lifetime or by will. At the same time it may be necessary,
depending on the extent of the disability, to appoint a guardian or manager as well as appointing
trustees for the administration of the trust.
The creation of a protective trust can, with the help of appropriate and willing trustees, guardian or
manager, ensure the ongoing care and maintenance of the person being cared for.
A trusted relative or friend can be appointed trustee, guardian or manager.
Public statutory bodies such as the NSW Trustee and Guardian and Public Guardian can also occupy
these positions. Although these statutory bodies may charge management fees, people in need of
care and who are unable to pay those fees may still be permitted to utilise their services.
The duration of the care and standard of care including medical and hospital care, accommodation
and maintenance provided under a protective trust is determined by the financial resources
available to the trust.
Your lawyer can advise you on and create the appropriate trust vehicle to maintain a suitable and
adequate level of support and maintenance for the lifetime of the person in need of future care.
Identifying the appropriate trust structure for your particular circumstances and which avoids
incurring unnecessary tax liabilities should be determined in discussions with your lawyer,
accountant or financial adviser. The concept of Special Disability Trusts in the context of social
security legislation may also need to be considered when assessing your particular situation and to
ascertain whether the person in need of care is entitled to social security payments and the benefits
of the trust.
There are government and private bodies and structures available to help people with disabilities
live rewarding and comfortable lives. Protective trusts are an example of what is available. Trusts
can be created to compliment your particular circumstances.
4th November 2014
General Counsel Liston Legal