Special needs child- trust fund, responsibility, etc.
Question regarding spending equally on children. Let’s say a family has one child with special needs that requires more medical care/therapy/special schooling that is expensive and does not have the means to set aside and save an equal amount for the other children, what should they do in this case? Also regarding inheritance, can a trust be made for that child if they cannot work or fully support themselves in adulthood, whereas the other children are able to support themselves? Who takes on responsibility legally for the special needs adult after the death of the parents? Answer: ﺑﺴﻢ اﷲ اﻟﺮﺣﻤﻦ اﻟﺮﺣﯿﻢ In the name of Allah, the Most Gracious, the Most Merciful It is permissible for the parents to spend more on a specific child on the condition that the intention is not to cause harm to the other children. Hence, the parents are allowed to spend extra on a special needs child. Yes, it is permissible to make a trust for one’s child provided that it is Shariah compliant. Thus, when writing the trust document it is advised that the grantor (one making the trust) consult a qualified scholar. In addition, if this trust is made in the form of a bequest (i.e. ownership of the money is transferred upon the demise of the grantor), then it will not be permissible to bequeath more than one third of one’s wealth nor would it be permissible to bequeath money to those who will receive inheritance, e.g. a son or daughter, therefore such bequests will not take effect, unless the heirs consent and waive their rights. Nevertheless, if the trust is made in such a way that the grantor gives full ownership to the beneficiary (the special needs child in this case) during his (i.e. the grantor’s) lifetime, then this would be permissible and would be in the ruling of a gift, hence there would be no restriction on how much the grantor gives and to whom he gives. Furthermore, one must include in the trust document how the money shall be distributed (Islamically) after the beneficiary’s death so the wealth is not misused. Regarding the responsibility of taking care of the special needs child, the ruling will be based on the age and gender of the child. That being the case, the mother will be responsible for a boy who has not reached the age of seven and a girl who has not reached the age of nine. Once they have reached these particular ages (7 or 9), then the father will be responsible for taking care of them. If the mother passes away and the child has not yet reached the above mentioned ages, the maternal grandmother and then the maternal great grandmother will be responsible. If they are not present, the paternal grandmother and then the paternal great grandmother will be responsible. If they are not present, the full sister (i.e. a sister born of the same mother and father) of the child will be responsible. If she is not present, then the half-sister with whom the child shares the same mother. If she is not present, then the half-sister with whom the child shares the same father. If she is not present, the maternal aunt and then the paternal aunt.
If there is more than one person from the same category, e.g. two full sisters, then the child will be given to the more pious of the two; if they are equal in piety, then the child will be given to the eldest of the two. When the child reaches the aforementioned age, (7 [for a boy] and 9 [for a girl]), they will be given to the father. If the father is not there, the child will be given to the paternal grandfather and then the paternal great grandfather. If they are not present, the full brother will take custody and then the half brother with whom the child shares the same father, etc. (Follow the sequence of asabaat mentioned in the books of inheritance) The special needs adult will be taken care of by the father or whoever takes his place (according to the aforementioned order). As for the financial responsibility, it will remain upon the father as long as the child is unable to work. In addition, if there is a special needs adult who is unable to work, the financial responsibility will also remain upon the father. However, if the special needs adult possesses wealth, then that wealth will be spent upon him. If the father passes away, the wealth which the special needs adult inherits will be spent upon him. However, if that money is not enough or depletes, the financial responsibility will be upon the mahram relatives of the special needs adult. They will spend upon the special needs adult equal to the amount they would inherit from him if he were dead. For example, the special needs adult has three affluent sisters (one full sister and two half-sisters). The full sister will spend ⅗ on the special needs adult, and the two half-sisters will pay ⅕ each.
Whatever has been mentioned so far are general rules, thus to obtain answers to a specific scenario, you must mention relevant details so an appropriate answer may be given.
(Fatawa Hindiyah: v. 1, p. 564-566 & 585-588 [DKI]; Raddul Muhtar:
v. 5, p. 268 & 271 & 361-364 [Maktaba Imdadia]; Behishti Zewar: p. 342 & 421-422 [Darul Isha’at]; Hashiya of Siraji Daleelul Wurrath: p. 7 [Bushra]; Kitabul Nafaqat: p. 165-166 [Zam Zam])
Only Allah knows best
Written by Maulana Mohammad Ahsan Osmani Checked and approved by Mufti Mohammed Tosir Miah Darul Ifta Birmingham