DISABILITY PLANNING OVERVIEW
For parents and relatives of people with disabilities, an important consideration in your estate plan will be determining how best to provide for him or her. There are several factors to consider. As well as thinking about the beneficiary’s personal circumstances, it is important to know whether the beneficiary is receiving government assistance related to their disability, or whether this is likely to occur in the future.
If a person is receiving government assistance and you anticipate that they will need to continue to receive that support regardless of receiving a gift from your estate, then you may want to consider a Henson Trust (or fully discretionary trust).
Regardless of government support, depending upon the beneficiary’s ability to manage their own assets, you may wish to include a trust provision.
With a trust, you can appoint a trustee to manage the disabled beneficiary’s gift form your estate. The trust can (at its most flexible) be completely discretionary, so that the Trustee would have the authority to provide payments of income and capital to the beneficiary or for their benefit in amounts and at times the Trustee determines. You will also provide for the distribution of any assets that remain in trust at the disabled person’s death.
At Berry Gage LLP, we can advise you with respect to whether a trust should be included to protect a disabled beneficiary; whether a Henson Trust is advisable; what to consider when choosing the trustee; possible terms that would work best to achieve your goals under all of the circumstances. We will also discuss whether there are provisions that could be included in your Continuing Power of Attorney for Property that would ensure the continued support of a disabled beneficiary (for example, contributions to their Registered Disability Savings Plan (“RDSP”)) in the event of your incapacity.