The way I see it, is that a poor will is often better than no will at all. Most of us are worth a great deal more dead than alive, and I would hate to have the lawyers, like the leeches they are, bloat themselves on legal arguments and delays whilst my children went without. So, October is often Free Will month, and you might as well just get on with it and write something simple. If you want to set up a legally binding trust, that will prevent your child from losing all their welfare benefits due to having too much capital whilst proving them with holidays and clothes etc, then Mencap or (in Scotland) Enable, are experts in this area. And it is something that I am seriously considering.
Okay, well what I have found out so far is this:
I can make my own will up in the usual way and appoint a guardian for my son as you would for any child, so that bit is quite straight forward.
The stuff from Mencap is very good; I can arrange for monies from my estate (which sounds so grand, but it will only be a small life insurance policy and a small pension!) to go into a trust fund for him, which will then last over the whole of his life (because he has learning difficulties and can't make his own decisions). So that means that (a) it isn't counted as income when he applies for benefits and care packages and (b) unscrupulous people shouldn't be able to get their hands on it as applications for money from it have to be approved and I can leave a letter of wishes explaining what I would like it to be used for and specifying any certain people that shouldn't be allowed to get near it. Our family situation is horrendous so I do feel happier knowing that they can't get their hands on it.
I can write into my will that if my son and I die together (before he's 18) or if I die and then he dies (before he's 18) then I can state who I want the money to go to in either case.
Once he's 18 (and legally an adult) I would need to apply to the court of protection to write a will on his behalf. That can include wishes for his funeral (as I would like to know that his ashes will be scattered in the same place as mine and my dad's). What I'm not sure of yet is what happens if I die before he's 18. I'd assume that his guardian would be able to do it instead, particularly if I've stated that in my will? But I need to read a bit more to find out, Court of Protection stuff is all very new to me, I got some good info from Mencap and there is a link to a website with more information as well so I will update if/when I find out any more.
So far - it doesn't look as difficult or as daunting as I though it would be. It's quite a lot of paperwork and having to check out/organise people as trustees/executors/guardians and trying to share all of that out so it isn't all left to one poor knackered person to deal with everything! But I am plodding through it all; the fee for Mencap is £305 to set the trust up which I didn't think is bad and then once it's active (after I die) there's a small annual fee to manage it but obviously they take that out of the money that's in there, you don't have to make arrangements to pay that separately. So far, so good!