Trusts for a Disabled or Vulnerable Family Member in Kenya

Parents of a child with a disability, or families caring for a relative who cannot manage money, often worry most about one question: who will look after them when we are gone? Leaving assets outright to a vulnerable person can expose them to financial abuse, poor decisions or pressure from others. A trust allows the family to set aside assets for that person’s lifelong care, managed by trustees they have chosen. This guide explains how such a trust works under the Trust Administration Act, 2026.

Why an outright gift is often the wrong answer

A beneficiary who receives assets outright controls them fully. For someone with a significant intellectual disability, a mental health condition, an addiction or simply vulnerability to exploitation, that control can be a risk rather than a benefit. A trust separates ownership from benefit: the trustees own and manage the assets, and the beneficiary receives support as the deed allows.

Use a discretionary structure

The Act recognises discretionary trusts, where the beneficiaries or their benefits become ascertainable according to criteria in the deed or at the trustees’ discretion, and a discretionary beneficiary has no fixed, vested or contingent interest in the trust property (section 2). For a vulnerable beneficiary this matters in two ways:

• the beneficiary has no fixed entitlement that they could be pressured to claim or sign away; and
• the trustees can adapt what they pay, and to whom, as the person’s needs change over a lifetime.

The deed can also attach conditions to benefits (section 19(3)), for example paying care providers, school fees or medical bills directly rather than handing over cash.

Paying for care, maintenance and education

Trustees must distribute trust property in accordance with the deed and the Act (section 56). Where the beneficiary is a minor, the Act already allows trustees to pay income to a parent or guardian for the minor’s maintenance, education or benefit, and to accumulate the rest until the beneficiary turns 18 (section 50). For an adult who will always need support, the deed should give the trustees an equivalent power to apply income and capital for the beneficiary’s care, housing, therapy, equipment and quality of life, without a fixed age at which the beneficiary takes the capital.

Choosing trustees who will last

A trust for a vulnerable person may need to run for decades, often long after the parents who set it up have died. The deed should therefore:

• name trustees and successors, remembering that where trustees are individuals at least one must be a Kenyan citizen or resident (section 11(3));
• check trustees against the disqualification rules, which exclude among others a person declared mentally incapacitated and an undischarged bankrupt (section 36);
• allow trustees to appoint a competent manager for property or an investment manager where needed (section 52); and
• give clear investment powers, since trustees may invest only where the deed authorises it and must weigh the trust’s liquidity needs and the beneficiary’s circumstances (section 51(4)).

An incorporated trust can also help. As a body corporate with perpetual succession (section 32), it continues to own the assets however often the trustees change, which suits a trust expected to outlive several generations of trustees. Our guide to registered and incorporated family trusts compares the two routes.

Build in independent oversight

A vulnerable beneficiary cannot easily monitor the trustees or complain if something goes wrong. That makes an enforcer particularly valuable: an independent person who can inquire into the trust, require trustees to remedy breaches and take legal action against them (sections 14 and 15), with access to the trust’s documents and accounts (section 16). Our guide to choosing an enforcer explains the role.

A letter of wishes, although not binding, is also worth preparing. It tells the trustees about the beneficiary’s routines, preferences, medical team and the people they trust, the practical knowledge that parents carry and that trustees otherwise lack.

Plan for what happens next

The deed should say what happens to the remaining assets when the vulnerable beneficiary dies, typically passing them to siblings or other relatives. The Act allows the terms of a trust to provide for adding or excluding beneficiaries (section 19(2)), and beneficiaries can be identified by name or by a class such as “my children”, ascertainable by relationship (section 19(1)). Naming the remainder beneficiaries clearly avoids a later dispute and reassures siblings that the arrangement is fair to them too, which in turn makes them more willing to support the trustees.

Lifetime or testamentary?

The trust can be set up now or in a will. A lifetime trust lets parents see it working and keeps the assets outside probate. A trust in a will is simpler to put in place but only takes effect after a grant of representation, which can leave the beneficiary without support during the delay. Our guide to testamentary trusts explains the difference.