Can a private trust benefit a differently abled child?

How can a private trust benefit a differently abled child? Who should be appointed as a trustee? And how can utilization of the trust's assets be effectively controlled?

Establishing a private trust to safeguard the financial future of a differently abled child offers significant advantages over other forms of security or investment. Unlike general financial instruments, a private trust provides parents with comprehensive control over the management and distribution of assets. By creating such a trust, parents can specify not only the beneficiary—in this case, their specially abled child—but also the precise terms governing how and when the funds should be used to support their child’s well-being.

A private trust ensures that the financial resources are protected from potential risks and mismanagement, offering a structured approach that prioritizes the long-term interests of the child. Parents can outline clear directives regarding permissible expenditures, whether for medical care, education, therapy, or other essential needs. This level of customization ensures that the trust aligns closely with the child’s unique requirements and evolving circumstances.

It is in the best interest of the future of the child if the trustee appointed is someone who has some familiarity or experience with the specific requirements of the child and its disabilities. This ensures they are better equipped to make decisions that align with the child’s well-being and future needs. The trustee should have a compassionate outlook and be sensitive to the unique challenges faced by the beneficiary. The trustee must be capable of effectively communicating and collaborating with the appointed guardian, medical professionals, and caregivers to make informed decisions.

A comprehensive letter of intent should be prepared to guide the trustee and guardian. This non-binding document should detail the child’s daily requirements, medical history, preferred routines, communication methods, and long-term objectives. Regular updates to this letter are strongly advised to reflect any changes in the child’s condition or circumstances. This can be achieved by adopting the following mechanisms:

1. Defining permissible and non-permissible expenses, ensuring the funds are only spent on items and services that directly benefit the child.
2. Establishing an order of priority for expenditures focusing on essential needs such as healthcare and daily living expenses, followed by secondary needs like recreational activities.
3. Ensuring that the trust stipulates all disbursements must directly benefit the child. This prevents funds from being used for purposes that do not serve the child’s best interests.
4. Requiring the trustee to prepare and submit annual financial statements or reports to a designated party (e.g., a legal guardian, family member, or financial adviser) to maintain oversight.
5. Mandating periodic independent audits of the trust to ensure that the assets are being managed in compliance with the trust’s terms.
6. Appointing someone to oversee the trustee’s activities and step in if necessary to resolve conflicts and ensure the trust’s purpose is upheld. This individual can also replace a trustee who may not be fulfilling their duties appropriately.

Aditya Chopra is managing partner and Moxy Shah is an associate at The Victoriam Legalis.