Working together to protect your disabled or vulnerable child following a separation

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Katherine Miller

Guest blogger Katherine Miller, a solicitor from Brighton law firm Renaissance Legal, who specialise in planning for the future for disabled and vulnerable individuals and their families, discusses the issues for parents to consider following a divorce/dissolution of a civil partnership or separation.

For families dealing with a separation or divorce/dissolution it can be a stressful and an upsetting time with many issues to consider and resolve. Where children are involved, there are additional decisions that need to be made such as living arrangements, time with each parent and finances. As well as the immediate decisions that need to be made it is also important to consider plans for the future now the family dynamics have changed.

When there is a child involved who has a learning disability or is vulnerable in some way, there are likely to be additional issues that both parents need to consider and plan for and this could impact on their future arrangements.

Here is a brief overview of what future plans families who have a disabled or vulnerable child need to consider following a separation or divorce/dissolution:

  1. Wills:
    Following a separation or divorce/dissolution each parent should put a Will in place or make a new Will covering their own assets and wishes. It is important to consider any financial agreement that has been put in place and how this will be affected by the death of either parent. Unless the Will is specifically made in contemplation of the divorce, the decree absolute on divorce/Final Order on dissolution will take effect as if the former spouse or civil partner had died before them. It is important to make sure the implications are understood to avoid potential problems
  2. Guardians:
    If both parents die before their children reach 18 then the appointment of a guardian, which would be documented in the Wills, covers who would be given legal responsibility to look after the children if the worst were to happen. It is advisable that both parents agree and include similar provisions in their individual Wills. If there are different guardians appointed, it will only be the guardian appointed by the second person to die who takes up the position.
  3. Trust for disabled/vulnerable child:
    The concept of a Trust can be difficult to imagine as most of us have not set up a Trust or benefited from one. A Trust is quite simply the formal transfer of assets (such as property, cash and investments) to trusted individuals (known as Trustees) to hold for the benefit of others, in this case a disabled or vulnerable person (known as the beneficiary). The Trustees decide how to use the assets for the benefit of the beneficiaries and they will be governed by any rules set out in the Trust document.Trusts can be set up to meet your individual circumstances and the needs of your family, in particular, those of your child. The two most common types of Trust used to provide for a disabled or vulnerable person are Discretionary Trusts and Disabled Person’s Trusts;
  4. Working together:
    We admire the approach taken by Family Law Partners to use Mediation and the Collaborative Model to resolve issues during a separation and divorce/dissolution. With this approach in mind it is important to consider the option of a single lifetime trust that both parents leave their individual assets to. The benefits of this is that it makes it easier for the Trustees as they are then managing one trust for the child reducing the costs and potential delays in making provision for the child.

It is understandable that following a separation or divorce/dissolution the immediate decisions that need to be made are the priority, however planning for the future for the parents involved should also be seen as a longer term priority.

For more information on the issues raised in this blog you can contact Katherine on [email protected] I www.renaissancelegal.co.uk I 0845 505 60 50.

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