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Parents who have children suffering from severe mental illness face a variety of problems. To add to this, aging parents are faced with a major practical concern – What after me?
After spending a considerable part of their lives caring for their child, their main concern becomes the welfare of the child after their demise. They want their child to be looked after, loved, and want to make sure that they are comfortable and all their needs are taken care of. These include basic needs such as food, shelter and clothing, as well as their medical needs such as ongoing care, medication, and timely visits with mental health professionals.
This requires planning of the finances and property as well as making arrangements to ensure that an individual or a group of individuals will be there to take care of your loved one. There are two ways to ensure that your child is financially sound after your demise:
Make a will to transfer your property to your ward upon your demise.
Create a trust with your ward as the beneficiary, so that their needs are taken care of after your lifetime.
Who can make a will?
Any person who has attained majority ( over 18 years of age) and is of sound mind can make a will. Even a person with severe mental illness can make a will provided they are sane or of sound mind at the time of making the will (this requires a psychiatrist to certify as a witness that the person is of sound mind at the time of making the will). A joint family or husband and wife together can also make a joint will.
What is the procedure for making a will?
There is no specific format for making a will. It can be written on any ordinary paper but it should be done in the presence of two witnesses and the person who will execute the will. These witnesses should not have anything to gain from the will. It's always advisable to consult a lawyer when making a will.
Registration of a will
It is not compulsory to get your will registered but a registered will has more value when produced in court. Registration is not expensive – there is no stamp duty, and it can then be kept safely with the attorney or sub-registrar. To register a will, you have to go to the Registrar or Sub-registrar of assurances. After it is registered it can be safely deposited with the Registrar/Sub-registrar until it is to be executed.
Guardians, executors and administrators
The executor of the will is the person who carries out the instructions laid down in the will once the author of the will passes away.
A guardian is a person who takes care of the property. If the beneficiary of the will suffers from a mental illness and the author of the will thinks that they may not be able to manage the property, then they can appoint a guardian to take care of the assets for the beneficiary. This could be a friend, a relative, or even an institution such as an NGO or trust, who will be entrusted with the care of the assets for the beneficiary.
In case a person is unable to find a suitable guardian, they may approach a court of law. The court shall then appoint a guardian or an administrator of the will.
How does one make sure that the will is executed properly?
It is the duty of the executor to ensure that the instructions in the will are carried out properly. In case the executor is not carrying out the functions properly, then the guardian, administrator, or any other person can bring it to the notice of a court of law. If the court believes that the executor has not performed requisite duties, they will appoint an administrator to carry out these duties.
Are beneficiaries of wills entitled to property if they suffer from mental illness?
Yes, persons suffering from mental illness are entitled to all rights to property. However, if the author of the will believes that the beneficiary will be unable manage the property, they should appoint a guardian to assist the beneficiary.
If I don't make a will, will my property go to my relative suffering from mental illness?
In the absence of a will, property will be inherited in the following order:
If your spouse survives you, they shall inherit the property.
If you do not have a living spouse, it will be inherited by your children.
If you do not have any children, then the property goes to your mother.
If none of the above heirs (Class 1 heirs) are alive to claim the property, then it goes to your siblings (Class 2 heirs).
If any heir, whether Class 1 or Class 2, is diagnosed with a mental disorder the rules of inheritance still remain the same as mentioned above. In the event that a Court finds that the mentally ill heir is unable to take care of the property, a guardian shall be apoointed. However, in case you are caring for a person suffering from a mental illness and wish to ensure that they are taken care of after your demise, you should consult your lawyer and draw up a will.
What is a trust?
A trust is a relationship under which property is transferred from the owner, to a party that shall hold the property for the benefit of another party.
For example, Saurabh has a son Gaurav who is suffering from a mental illness. Saurabh wants his son to be comfortable after his demise so he creates a trust X. For this Saurabh has to transfer property to the trust, X, who shall manage this property and all the benefits will be given to the son Gaurav. This will be in accordance to Saurabh's wishes which are to be stated in the trust deed.
What are the conditions for forming a trust?
Every trust must have an author and a minimum of two trustees, a trust deed, a beneficiary, and a trust property. The author is the person who creates the trust – they shall transfer the property or money into the trust and draw up the trust deed. The trustees are the people responsible for the management of the trust and making sure that the objects of the trust are carried out.
There is no minimum property required to make a trust. The number of trustees is not restricted but for a private trust as in this case, you should try and limit the number of trustees to make administration easier.
What is a trust deed?
A trust deed is an instrument that governs the following aspects of a trust:
It lists the objects of the trust.
It lists the beneficiaries (in this case, the person suffering from mental illness for whose benefit and care the trust is being created).
It has the details of the trustees – their appointment, tenure, the manner in which new trustees can be inducted, etc.
It lays down the manner in which the assets of the trust are to be disposed off or utilized.
How do I ensure that there is no mismanagement of trust property?
As there are many trustees involved, mismanagement is rare. However, if there is collusion between trustees to mishandle trust property, then any person can file a complaint with the police, the income tax department or a court of law. Consult your lawyer while forming a trust – they shall guide you through the entire process.
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