The following are the applicable definitions for a disabled person for a Special Disability Trust as taken from the Social Security Act 1991:

For children under 16

197(2) A child is a profoundly disabled child if:

  1. the child has either:
    1. a severe multiple disability; or
    2. a severe medical condition; and
  2. the child, because of that disability or condition, needs continuous personal care for:
    1. 6 months or more; or
    2. if the child’s condition is terminal and the child’s life expectancy is less than 6 months—the remainder of the child’s life; and
  3. the child’s disability or condition includes 3 or more of the following circumstances:
    1. the child receives all food and fluids by nasogastric or percutaneous enterogastric tube;
    2. the child has a tracheostomy;
    3. the child must use a ventilator for at least 8 hours each day;
    4. the child:
      1. has faecal incontinence day and night; and
      2. if under 3 years of age, is expected to have faecal incontinence day and night at the age of 3;
    5. the child:
      1. cannot stand without support; and
      2. if under 2 years of age, is expected to be unable to stand without support at the age of 2;
    6. a medical practitioner has certified in writing that the child has a terminal condition for which palliative care has replaced active treatment;
    7. the child:
      1. requires personal care on 2 or more occasions between 10 pm and 6 am each day; and
      2. if under 6 months of age, is expected to require care as described in sub-subparagraph (A) at the age of 6 months.

197(2AA) A child is a profoundly disabled child if:

  1. the child has either:
    1. a severe intellectual, psychiatric or behavioural disability; or
    2. a severe intellectual, psychiatric or behavioural medical condition; and
  2. the child, because of the disability or condition, needs continuous personal care for:
    1. 6 months or more; or
    2. if the child’s condition is terminal and the child’s life expectancy is less than 6 months—the remainder of the child’s life; and
  3. the child is at least 6, and under 16, years of age; and
  4. because of the child’s disability or condition, the child does one or more of the following:
    1. repeatedly engages in dangerous behaviour that is, or that gives rise to, a significant risk (whether immediate or long‑term) to the child’s health or safety and that, without carer intervention, would result in the child suffering sustained tissue or bodily damage, or death;
    2. repeatedly engages in aggressive or violent behaviour that is, or that gives rise to, a significant risk to the health or safety of others, or that results in significant property damage, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities;
    3. repeatedly engages in severe sexually deviant or sexually inappropriate behaviour, as a result of which the child is regularly or permanently excluded from community programs, activities, services or facilities.

197(2A) A child is a profoundly disabled child if a medical practitioner has certified in writing that:

  1. the child:
    1. has a terminal condition; and
    2. is in the advanced phase of that condition; and
  2. either:
    1. the child has a life expectancy measured in weeks or months; or
    2. it is possible that the child will live for more than 12 months but unlikely that he or she will live for a period substantially greater than 12 months; and
  3. because of the condition referred to in paragraph (a), the child will need continuous personal care for the remainder of his or her life.

For people aged 16 or over

 1209M Beneficiary requirements

Impairment or disability conditions

  1. If the principal beneficiary has reached 16 years of age:
    1. the beneficiary must:
      1. have an impairment that would qualify the person for disability support pension; or
      2. be receiving invalidity service pension under Part III of the Veterans’ Entitlements Act; or
      3. be receiving income support supplement granted on the ground set out in subparagraph 45A(1)(b)(iii) of the Veterans’ Entitlements Act; and
    2. the beneficiary must:
      1. have a disability that would, if the person had a sole carer, qualify the carer for carer payment or carer allowance; or
      2. be living in an institution, hostel or group home in which care is provided for people with disabilities, and for which funding is provided (wholly or partly) under an agreement, between the Commonwealth, the States and the Territories, nominated by the Secretary under subsection (3); and
    3. the beneficiary must have a disability as a result of which he or she is not working, and has no likelihood of working, for a wage that is at or above the relevant minimum wage.

What do I do now? You can instruct Civic Legal to set up:

  1. Special Disability Trust - by printing and faxing or mailing our Instruction Form.
  2. Testamentary Disability Trust – by contacting Civic Legal on 08 9460 5000. We will set up a meeting at $440/hour with a solicitor at Brett Davies Lawyers. The solicitor will ensure that the trust is fully integrated with your Will and wider Estate Planning.
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