“After us” and protection of other vulnerable persons

Trusts are frequently used to protect people with special needs or who, for various reasons, are weak and unable to organise and manage their lives, including financially.

Close family members and, in particular parents, are able to understand the wishes and needs of their incapacitated or even fragile relative.

But what happens when family members are no longer there or are unable to look after the daily needs of these special needs relatives with the usual energy and efficiency? Who will care for their loved one and how?

This concern has prompted legal professionals to devise a trust that, starting from the daily life of the person to be protected, listens to the intimate wishes of the family member, in order to offer full protection to the vulnerable or incapacitated person.

In such cases, the trust consists of transferring a specific asset to the trustee, so that it can be used to meet the daily needs of the beneficiary.

The deed of trust specifies the concrete methods of assistance and the persons who may be involved in caring for the person to be protected, with a specific division of tasks.

It is also essential to appoint a guardian to monitor the proper conduct of those taking care of the incapacitated person.

The creation of a trust makes it possible, more often than not, to avoid appointing a support administrator, guaranteeing functionality and streamlining the management of the incapacitated person’s life.

The wide acceptance of the institution in the operating practices led the Italian legislator to enact Law no. 112/2016, the so-called "After Us" law, containing precise provisions on trusts for protecting persons with severe disabilities.

The law provides for tax benefits for the contribution of assets to trusts and deduction of expenses incurred for the establishment and management of the trust. It also offers the opportunity to access a fund made available by the Ministry of Labour and Social Policies, to ensure maximum autonomy and independence of people with disabilities, as well as their full social inclusion, primary objectives of the law.