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PARENTS EVENING

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					INCLUSION IRELAND
       AGM
   24th April, 2010
     Mary Gordon BL
Part I

• Benefits of Making a Will

• Requirements

• Special Considerations
Part II

• Discretionary Trusts

• Taxation

• Ward of Court

• Guardianship
Part III

• Mental Health Act 2001

•Q&A
Making a Will
• A Will is a witnessed document setting out
 the deceased‟s wishes for his or her
 possessions (the „estate‟) after death

• If you do not make a will the rules of
 intestacy apply and your estate may not
 be administered in the way you may want
 it to be
Why make a Will

• Protection for your family
• Your wishes will be protected by law
• A will makes it clear who will manage the
  estate as executor (s)
• To provide guardians/trustees for children
• To save expenses on inheritance tax and
  legal bills
Requirements of a valid Will
•   A will MUST be in Writing
•   You must be over 18 or have been married
•   You must be of sound mind
•   You must sign and date the will (at the bottom)
    in the presence of 2 witnesses
•   The witnesses must not be able to gain from the
    will
•   You must nominate 2 executors
•   IF ANY OF THESES REQUIREMENTS ARE NOT
    MET YOUR WILL IS INVALID
Executors and Trustees

• An executor can be a beneficiary under
  the will
• It is vital you trust the executors of your
  will
• Parents of young children or a dependant
  with an intellectual disability can appoint
  Trustees
Rights of a Child
• Children do not have an absolute right to
  inherit their parent‟s estate
• Children born inside or outside of marriage
  and adopted children are all treated the
  same
• BUT a child may apply to the court if they
  feel they have not properly been provided
  for under the Succession Act of 1965.
Special Considerations for parents

•   Age of child
•   Degree of Disability and changing needs
•   State benefits
•   Tax considerations
•   Exploitation
•   Chance of child being made a Ward of Court
•   Inheritance Claims by Trustee‟s children
•   Death of a Trustee
Discretionary Trusts
• A Discretionary Trust is a means of providing for
    a family member with an intellectual disability
    indirectly and not as a direct beneficiary of the
    will
•   Funds of the DT are administered at the
    ABSOLUTE DISCRETION of the Trustees and are
    not under the control of the person with a
    disability
•   Trustees may also be executors of the will
How to create a Discretionary Trust

• BY DEED-during the parent‟s lifetime
  when perhaps a lump sum or windfall is to
  be invested for the benefit of the person
  with a disability
• BY WILL-the DT is created and will come
  into effect after the parent (s) are dead
  and the will is often where the Trustees
  are named
Role of the Trustee

• Invest Trust Capital
• To apply the income from the investment
  as they see fit
• To apply capital to the Beneficiary (Keep
  in mind Danger of Loss of State Benefits)
• The Trust can be framed to include
  provision for care etc…
Tax Liabilities
• 6% Tax applied in the first year and 1% in
  each subsequent year
• THIS TAX IS NOT PAYABLE WHERE THE
  BENEFICIARY IS A PERSON WITH AN
  INTELLECTUAL DISABILITY
• Clearly indicate that the DT is for a person
  with an Intellectual Disability and NOBODY
  else
Effect on State Benefits

• Parent‟s Means are not considered when
  the Department decide on Disability
  Allowance
• If a substantial amount is gifted to a
  person with an ID they may loose all state
  benefits
How are Trust Income and Capital
assessed for Means Testing
purposes?

• [A] Person with ID only has a Life
 Interest in the capital of a Trust Fund-
 any periodic payment received from the
 Trust is assessed as cash income. If this
 income exceeds DA they may loose
 Benefits. If amount less then entitlement
 to DA will be stopped Proportionately
• [B] if person with ID has ownership of
 the capital at date of death (of the parent)
 the funds revert to his estate then the
 capital is assessed as part of his/her
 means. The first €13k approx will be
 disregarded for taxation purposes and
 anything over and above that amount will
 be assessed on a sliding scale
Means Test
• Formula = cash value of investment and
    property (not including your own home) +
    money in a savings account + cash in hand or in
    a current bank account
•   The following do not count as means
       Your own home
       A social welfare payment received by another member of the
        household
       Money received from a charitable organisation
       Income from rehabilitative training-€120 per week
       Mobility Allowance or Home Help
Sliding Scale-Means Testing
•   Capital              Weekly Means Assessed
•   Up to €20k           Nil
•   Next €10K            €1 per €1000
•   Next €10             €2 per €1000
•   Balance              €4 per €1000

• ANY change in circumstances which may affect
    state benefits must be notified to the
    department of Social Welfare
Taxation

• Gift Tax is payable during the lifetime of
  the donor
• A gift is taken when the donee becomes
  beneficially entitled in possession to some
  property and does not pay full
  consideration for it
Exceptions to Gift Tax

• €20k Tax free to a child over 18
• Gift of a Dwelling House
• Payment for support, maintenance and
 education of family members which are
 part of normal expenditure
Inheritance Tax

• Similar Exceptions apply
Deeds of Covenant
• Deed of Covenant
  - Legally binding Document made by an individual to pay
  an agreed amount to another individual without
  receiving any benefit in return
  -similar formal requirements as a will
  -a deed must exceed 6 years to qualify for tax relief
  -UNRESTRICTED TAX RELIEF can be claimed on
  covenants in favour of permanently incapacitated adults
BUT the income is treated in the same way as any other
  income so it will affect Means Testing for DA
Protecting Interests of Your Child
with an ID
• Ward of Court

• Power of Attorney

• Guardianship
Ward of Court

• Problematic
• Committee
• Case Officer
• Cumbersome Procedure-Court approval
  needed for decisions such as travelling
  abroad etc..
• Guardianship proposals
Ward of Court System
• Who Applies?-Family Member, solicitor, their
    doctor or hospital authorities
•   Types of Application?-petition with medical
    affidavits or application by letter where there is
    no willing and suitable person to act as
    petitioner
•   Will it be expensive?- the cost of the
    proceedings usually come from the Ward‟s
    Estate
Committee
• Once a Wardship Declaration has been issued by the
    Office of the Ward of Court a “ Committee” will be
    appointed.
•   The committee is one or more persons. It is usually one
    person and frequently a family member
•   The committee acts under the direction of the courts
•   A case officer is appointed to by the court to assist the
    committee
•   The committee has a duty to account
Guardianship Proposals
• „Next of Kin‟ Procedure to be legalised

• Procedures simplified

• Law Reform Commission working on Report

• Ward of Court System still good law
MENTAL HEALTH ACT 2001
• Changes the existing rules on admission to
  psychiatric hospitals in particular regarding
  involuntary detention
• There is now an independent review
  procedure in the case of all involuntary
  detentions
• Establishment of the Mental Health
  Commission
• Establishment of review Tribunals
• Inspector of Mental Health Services
• Monitoring and regulating of the standards
  of care
• Changes in the legal rights of psychiatric
  patients
Summary of changes
• Patient‟s right to information
• Right to legal representation
• Right to communicate with the Inspector of Mental Health Services
• Right to appeal to the circuit court
• Right to be admitted voluntarily
• Right to review by the Tribunal
• Each decision to involuntarily detain or extend the duration of
  detention of a patient will be subject to automatic review within 21
  days
• Appeal to the High Court on a Point of Law
• THE MENTAL HEALTH ACT IS BEING INTRODUCED ON A PHASE BY
  PHASE BASIS
Q&A

				
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