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Providing for someone with a learning disability

Someone signing a will - Legal advice to help you provide for someone with learning difficulties

If you leave money to a relative or friend with a learning disability, or die without making a will, it could have unintended consequences.

  • If your relative or friend cannot manage their own money, the Court of Protection may need to become involved to assist in looking after the legacy. This can be complex and time consuming, and there are fees involved.
  • The person with a learning disability may have impaired understanding of the value of money and may be vulnerable to other people taking advantage of their new found wealth.
  • If the person concerned is receiving state benefits, the receipt of a legacy is likely to affect the amount to which they are entitled. Most benefits are subject to the person holding less than a statutory maximum of capital.

You may think of leaving your estate to your other children to use to help your child with a learning disability, but that may not be an appropriate solution, as there is no legal obligation on them to use it in that way, and the money might be treated as their money if they were to divorce, or go bankrupt, or die, or if they needed to claim benefits themselves.

Discretionary Trusts

The solution is to set up a Discretionary Trust within your will. You will appoint trustees who will support the person concerned to manage money and to make decisions as to how it should be used. The trust fund can be used to provide luxuries and additions to the person’s day to day needs, as well as having the flexibility to benefit other members of the family if needed.

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A Will like this should be made by a solicitor who has experience of these types of wills. A Will is vitally important, particularly in these circumstances, and you should consider all the options with your solicitor who will write a will to suit you.



Typical Example

Mr and Mrs Smith have three children, Adam, Ben (who is autistic) and Charlotte.

Mr Smith dies first and leaves everything to his wife.

Mrs Smith dies later and leaves 1/3 of her estate to Adam, and 1/3 of her estate to Charlotte. The other 1/3 of her estate is to go into a Discretionary Trust to benefit Ben. The Trustees will be people Mrs Smith trusts completely. This could be Adam, Charlotte, and or brothers, sisters or family friends, or a professional. The trustees can use the money to help Ben in any way they think fit, and it will not necessarily affect his benefits. When Ben dies (if all the money has not been used up) it can go to Adam, Charlotte or the grandchildren.

The money can be used to pay for luxuries and extras to improve Ben’s life, e.g. holidays, outings, music and visual or computer equipment, anything which he would not otherwise have.



Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Lease extensions

a key in a lock - Lease extensions, extending my lease, legal advice in Hungerford, Berkshire.

If you have owned a leasehold property for over 2 years as a private individual, generally you will have a right to extend your lease (subject to qualifying conditions). This may be required when you are thinking of selling your flat or re-mortgaging, or you may wish to do it as an investment in your property for the future.

The new lease would be for a period of 90 years plus the original term at a peppercorn rent.

You should look at extending your lease if it has less than 90 years to run, as it can begin to devalue the property as the lease term shortens. When the lease drops below 80 years, the premium can increase significantly. Most mortgage companies will not accept leases of less than 30 years plus the proposed mortgage term.

THE PROCEDURE

Qualification

Was the lease originally granted for a term of more than 21 years?

Have you held the lease for at least 2 years or had the benefit of the lease extention process assigned to you?

Valuation

A specialist valuer will prepare a valuation of the lease extension and give you a suggested premium, using a special formula set out in the legislation.

Notice of Claim

We will prepare a notice to inform the landlord of your intention to purchase a lease extension. This is served on the landlord and any other parties to the lease (e.g. a management company).

Landlord’s Counter-notice

The landlord has 2 months in which to serve a counter-notice, either accepting your proposed terms or proposing new terms, or denying your claim. During this time the landlord is likely to instruct its own valuation of the property and may require access for this. They may also ask for a 10% deposit from you.

Negotiations

Within 2 months of the date of the counter-notice, both parties have the opportunity to negotiate agreed terms.

First Tier Tribunal (Property Chamber)

If an agreement cannot be reached, an application must be made to the Property Tribunal for a determination of the premium payable.

Completion

Once terms are agreed, or have been determined by the Tribunal, the landlord’s solicitor will provide the new lease and this will be signed by all parties and completed. This is the point at which you must pay the premium and costs.

Costs

As part of the legislation, the tenant is responsible for paying the landlord’s legal fees for service of the counter notice and preparation of the new lease, and the landlord’s valuation fees. These must be reasonable and if they are not agreed, an application can be made to the Tribunal for a determination of the amount payable.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Julian Dickins or Deborah Wason at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555