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Discretionary Trust Fund, the Pitfalls. - Carers UK Forum

Discretionary Trust Fund, the Pitfalls.

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Thank you for not deleting me from this Forum.
Last Year you very kindly helped me in supporting words decide that my cousin had to leave my home and reside in a care home. Her health deteriorated and she passed away in Nov last year.
Her 58 yr old Son with Learning Difficulties is still with us.If you remember she came to live with me, expected to die and stayed 4yrs.

Her will is linked to a Discretionary Trust.... I had not met that situation before but Con, my cousin ,had assured us all , including her son many times, that Stephen would continue to live here.
This is now proving to be difficult.
When a person writes their "guidance letter to the Trustees" it does NOT have to be taken into account by the Trustees. In my cousins case it states " If Ann and her daughter decide to give Stephen a home I do not want them to suffer financially".
There is roughly 150 thou left. The Solicitor has informed me that I have no rights at all as his carer, she will decide (as Trustee) if we get any money towards his keep as the money has to be planned to last him 30, yes Thirty years which she estimates is his life expectancy(in her mind) and that it is not sustainable to let him live here as his money will run out.
I then said better for Stephen to use his money than leave it to my children when he dies.I was told then that it will be up to the Trustees, the wishes of Con are only a guildline. Looking this up on the Internet I find it is true, the money can be given to a Charity of the Solicitors choice!.
The Solicitor expects her fees to be about £1000 a year.
As Stephen is 6ft 2inches and 17stone he is quite a good eater, I cannot keep him on the £74.95 DLA.
The solicitor suggested it was better for Stephen to leave our home now, where he has been 4 yrs yesterday than to wait til I get too old or his money runs out.I explained if we could give him another 5 yrs good life with us surely that was better than going into a home/assisted accomodation with others,she disagreed.
She has agreed to give me the 4 months back pay that his Mother was giving me but no more money.
It seems heartless to me to say to a man who was with his Mum for 57yrs that 4 months after her death we have to let him go.
I have been to the local Advocate who is trying to find out if his Trust Fund will be Means tested. If it is NOT then the Solicitor says the State will pay for him to be in a home.
If it is tested no doubt she will tell me I can keep him !.The Solicitor asked me to find out.
Does anyone know about these Funds from experience ?
In her will she also made me Stephens Guardian, that is not worth the paper it is written on either, makes us wonder why the Solicitor let Con believe that I would have his care.His very kind S/W is taking us to see such a home tomorrow, in case push comes to shove.
Many Thanks, Conned.
Hi there

I'm sorry I'm no legal expert. Sounds like a very difficult situation to be in and perhaps you need a solicitor of your own.

As I say I have no idea of the rules around trusts but I think it unlikely that a local council will pick up a bill for residential care if someone has £150,000 in a fund for their upkeep. At teh very least they will need to investigate if it is available to pay for care.

The Government will issue guidance for councils on what they should and should not pay for.
Download this document - Section 10 Page 69 explains how trusts funds are treated when assessing charges for residential care

http://www.dh.gov.uk/en/Publicationsand ... /DH_114330

Keep us posted how you get on.

Matt
Thank You Matt, so very much. I think the papers I have looked at give me the answer. Itwill noot beMeans tested so therefore they will make him move to keep the capital for "clothing and holidays" as stated. Apparently a Discretionary Trust Fund is different to any other and can be interpreted as a Trustee thinks fit, it never becomes the money of Stehen, he never owns it. How very sad we have come to this.
I have been down the avenue of Carers allowance, rent allowance (from him to me) neither would be allowed as we took him in voluntarily.
We cannot believe that the "guidance wishes to my Trustees" are NOT taken into consideration.
It seems ironical that out of this money the Solicitor will claim 1/3rd and then decide what happens to the rest.
I will let you know the outcome.
Conned.
Firstly I would check with the welfare rights people/CAB that the £74.95 DLA is indeed his only State benefits entitlement. He should probably also be entitled to Employment and Support allowance, and this will make a significant difference.
I would also invoice him in writing say £120 a week board and lodging, with a copy to his Trustee. Whether or not it ever gets paid in full, its important to put down a marker now that you regard him as a lodger, not a dependant relative. Once you have established the principle, you can re-consider the rate. Nobody is likely to seriously quibble anyway, as it would cost far, far more in care.
I think the Trustee is being difficult, and I would also suggest you get legal advice: a first consultation is normally free.
He does indeed get more money, he is also receiving " private funding " from the State to pay for activities, i.e. 3 days aweek he goes to a local "Farm" and meets other people. He also has to pay a percentage from his DSS money. I will try though your idea of putting it in writing again...last week the Solicitor refused to pay , I asked for £500 a month. Hubby and I have our pensions, It is going to be hard unless they cough up.
THANK YOU.

Also we WILL try the House insurance.
Conned.
Good news. Advocacy here have said they will help sort out this for me. Will tell you result It may help others decide their Trust Funds and the pitfalls.
i always like a bit pf good news. Well done Conned, hope it works out well for you.
My Daughter is taking our Cousin to see the Solicitor on Monday, she is still refusing any money from the Trust Fund... hopefully after meeting Stephen her mind will change.
She wants to see him on his own which we are dubious about, does anyone else have/had that scenario ? Do solicitors have the right to interview a person with learning difficulties ? I tried to download the Bill of Human Rights for people with Learning difficulties as I have beentold the answer is there.. cannot download

We are hoping he can stay here "short term" until a place is found in an assisted living house.

Conned.
I am not sure of the legal situation re: solicitors in these particular circumstances but I would be reluctant to allow the interview to go ahead in the absence of either someone who your cousin knows, trusts and feels comfortable with or alternatively I would find him an independent advocate to which he does have a right. Is your cousin able to make informed decisions? If so his wishes should prevail.
It's like the solicitor will be trying to ascertain capacity and wishes and feels that someone else in the room might act as a "persuader" - deliberately or otherwise. However, while that is ok in theory, I'd be wanting to know what communication skills the solicitor has where people with learning disabilities are involved...