Personal injury trust or special needs trust or compensation protection trust and protection of State means-tested benefits
When you receive compensation for a personal injury it can take you above the financial limits for means–tested State benefits, and affect your entitlement to local authority support for care. So be aware and look at the benefits you are receiving today, and just as important the benefits you may need in the future. Don’t just look at yourself as benefits are claimed for a family unit.
It is worth repeating that you must also look at your care needs, both now and in the future, as a personal injury trust can protect compensation when local authority care is assessed.
A short-term decision may cost you dear.
The law quite rightly accepts compensation is not a bonus or windfall. Compensation is designed to put right the financial damage, both past and future, caused by an accident or injury. For that reason it is possible to receive compensation for an injury and still receive state benefits which are means tested. This can legitimately be achieved by paying the compensation into a Trust, the sole purpose of the Trust being to receive personal injury compensation.
These trusts are given a number of names which can confuse. I use the term personal injury trust, but some prefer compensation protection trust or special needs trust. What we are talking about is a trust set up to hold compensation received after a personal injury.
It might sound complicated, but for most cases a simple Trust can be drawn up; trustees appointed (one of which can usually be you); a separate bank account opened; and that is it. The most straightforward Trust is a Bare Trust, and I can draw one up for you. For large sums, when the compensated person is a child, or if there are mental capacity issues a more complicated arrangement may be necessary, but not to worry as I will help you through the process.
I have set out some questions and answers which should help you.
Do I Need a Personal Injury Trust?
If you receive a compensation award in respect of a personal injury, your current or future entitlement to certain state benefits and local authority care may be affected. If the amount of compensation will lift you over the financial limits for benefits either now or in the future the answer is simple, you need a personal injury trust. You can only hold a certain amount of capital before means tested benefits are reduced or stopped, so a personal injury trust is the only answer.
When should a Personal Injury Trust be set up?
As soon as possible is the only answer. If you are in receipt of means-tested benefits there is a period of 52 weeks during which the compensation will be ignored, but take care as the 52 week period runs from when you first receive compensation, even if it is a small interim payment. A trust can be set up beyond the 52 weeks but leaving things to the last-minute is asking for trouble. My preference is to set up the personal injury trust before any personal injury compensation payment is received. This applies to an interim payment as well as final settlement. Having the trust in place to receive all compensation is the best way to avoid problems and prevents means-tested benefits being lost. Learn more about the 52 week period.
Who should I choose to be my Trustees?
A personal injury trust should have at least two trustees. If the simple form of trust is used you can be one of the trustees. but you should then have two other trustees. Your trustees must be people you trust and may include family, friends, a solicitor or a trust company. It is your decision as to who you want to act as your trustees. There are no general restrictions as to who can be your trustees although they must be over 18. A trustee should also have a good bank and credit rating or there may be problems opening the trust bank or building society account
What are the responsibilities of my Trustees?
The trustees hold your personal injury compensation, and administer the personal injury trust for your benefit. Although your trustees hold and have control over your compensation award, they cannot use it as their own personal property or for their own benefit. If you set up a Bare Trust the money is essentially yours and you can bring the trust to an end whenever you want. You do not have to give away control of your money when you set up a trust.
What if something happens to my Trustees?
If, for whatever reason, your chosen Trustees are unable or unwilling to continue, then the terms of the Trust will tell you how a Trustee is to be replaced. I recommend you have the power to replace a Trustee.
Will my chosen Trustees’ Means Tested State Benefits be affected?
No, they hold your award as a Trustee and it is not counted as part of their capital.
How do I access my Personal Injury Trust Fund?
You must set up a separate bank or building society account. You are not limited to one account, so you can have a current and a savings account. Depending on the terms of the trust property and other investments can be held. The golden rule is that all holdings should by the trust, and not by you personally. The trustees will have banking facilities and the text book approach is to use a cheque book. All Trustees should sign cheques issued on your behalf from the Trust fund. You should pay for items you buy directly from the trust bank account and avoid transferring funds to your personal bank accounts.
How much can I put into a Personal Injury Trust?
You can put the total value of your personal injury compensation into a personal injury trust. You can add income earned on the money held in trust, or profit made on trust assets. The one trust can hold compensation from more than one personal injury if its terms are drafted widely enough. Depending on your own circumstances, you may decide to place less than the full value of your compensation into the personal injury trust.
Are there limitations on how the money in the trust is used?
The old rule used to be that money from the trust could not be used for purposes for which state benefits were paid. This meant the trust could not be used for the “normal expenses of daily living.” These rules have now been changed so the money can be used for whatever you want. However, I always advise that a record of expenditure should be kept, and that the old rule of not paying the “normal expenses of daily living” should be followed as you never know when the rules will change. One practice to avoid is making a regular transfer from the trust to yourself. Do not pay money across from the trust fund to your personal bank account; spend directly from the trust and you will avoid problems.
What happens if my circumstances change in the future?
If you have used the simplest form of trust, known as a bare trust, the money is yours and you can tell the trustees what to do. If at any time you decide you no longer need the personal injury trust, you simply instruct your trustees in writing to transfer the money to you. The personal injury trust will then cease, but you may lose your entitlement to any means-tested State benefits/support. If you need a more complicated form of trust you will need detailed advice on this point.
What happens if I die?
If you die, the value of your personal injury trust would be paid to the beneficiaries named in the trust, or it may be paid across to your estate. You must choose which course is best so it can be written into the trust.
Are there any tax implications?
The money held in the personal injury trust is usually taxed in exactly the same way as if you held the money yourself. This is the case for a simple bare trust. If the possibility of a discretionary trust is raised do make sure you understand the inheritance tax and income tax issues which apply to such a trust. Getting this wrong can be very expensive.
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