Families with disabled children need ‘financial umbrellas’ to protect them

Article content

Many high-net-worth families set up trusts for their children as part of their will. Trustees are usually appointed to govern the assets until children attain the age of majority, or whatever age is set out in the will.

But what if a child has a mild cognitive impairment, an addiction or is severely disabled?

Parents or grandparents should consider setting up a trust that meets the child’s specific needs, regardless of the level of wealth they stand to inherit. That’s because trusts can ensure that children with a medical issue can keep their money at arm’s length, qualify for government programs and enjoy tax advantages.

“It’s a surrogate financial parent,” says Ron Malis, a Toronto-based financial advisor who works with families with disabilities. “It can protect children from having their social assistance benefits be jeopardized.”

The key is to determine exactly how the assets are to be distributed, the level of disability, the family’s goals vis-à-vis government programs and who to appoint as a trustee. It’s also important to flag any changes in taxation that can affect a trust in the future.

Choosing the best trust

It’s important to note that as of Jan. 1, 2016, Canada’s Income Tax Act changed how it taxes trusts. They are now taxed at the highest marginal tax rate rather than at graduated rates. Trusts set up for disabled individuals – designated as qualified disability trusts (QDTs) – can be taxed at graduated rates that can save a lot of tax over the beneficiary’s lifetime.

This provision applies only if the trust is testamentary, meaning it comes into effect when someone dies; the trustee lives in Canada; and the beneficiary qualifies for the Disability Tax Credit, which means they have to have a serious physical or mental impairment that interferes with day-to-day living.

Many families opt to set up a so-called Henson Trust, which gives the trustee the discretion, but not the obligation, to distribute a disabled person’s inheritance. Legal control of the assets remains with the trust and trustees. With such a trust, which has to qualify for a QDT status every year, “the assets do not belong to the beneficiary,” says Malis.

As a result, a beneficiary cannot access payments from the trust themselves — these are solely decided by and governed by the trustee. However, because the assets are not considered the beneficiary’s own, they can qualify for provincial disability benefits. The Ontario Disability Support Program (ODSP), for example, pays out a maximum of $1,169 a month.

This can be a good option for families who have a child with a mental disability, says Jason Heath, a fee-only, advice-only certified financial planner at Objective Financial Partners Inc. in Toronto. When a trustee manages the assets, it’s a lot easier to protect the beneficiary from being taken advantage of by a caregiver or spouse who is attempting to access the trust funds.

“It might be a practical reason the money doesn’t go directly to them,” says Heath. For example, once two people get married, their finances are considered pooled and will be divided upon marriage breakdown. “If you co-mingle the money or buy a matrimonial home, they could lose that money.”

Protecting from claims against the estate

A Henson Trust can be testamentary or inter-vivos, meaning it comes into effect while the family members setting up the trust are still alive. Setting up an inter-vivos trust can ensure the family forms relationships with professionals managing the trust and can help protect assets from claims made against the estate, according to the website of Pooran Law, a law firm in Toronto that focuses on trust and estate planning. But it is subject to the highest marginal tax rate, with tax filings every year from its inception.

Heath cautions that because trustees essentially manage the Henson Trust, they should be chosen carefully. While siblings of the disabled child are often chosen, their desire to perform the tasks of a trustee must be determined in advance.

“It can be a 30-, 40-, 50-year period during which trustees must manage the money,” he says. “You have to have a candid conversation with the potential trustee.” Because of the long timelines involved, Heath says many families are turning to professionals. “More often I see people naming trust companies as trustees rather than individuals.”

Disabled individuals can also be left homes via a trust, a move that helps protect any assets related to its sale from a loss of ODSP benefits. Often, family members opt to leave a home via a Henson Trust, although homes can also be left in a Housing Trust, which can be either testamentary or inter-vivos.

Families can also consider a lifetime benefit trust (LBT), a personal trust that allows parents to roll over their RRSPs or RRIFs tax-free to benefit a mentally infirm child or grandchild due to a mental impairment. The trustees of an LBT have the discretion to distribute funds to the disabled beneficiary and are legally required to factor in their medical and lifestyle needs.

And finally, a discretionary testamentary trust can ensure that a child who stands to inherit a lot of money — but who struggles with addiction, for example — cannot have direct access to those funds. “In this case, the trustee is in charge,” says Heath, “and it comes into effect at the time of an individual’s death.”

Is a trust right for the family?

Some high-net-worth families feel that jumping through the hoops required by government programs to set up certain trusts —the Henson Trust, for example — are too onerous. While “assets in the trusts are considered exempt assets,” says Malis, “money given outside the trust constitutes income.” And this can be a problem for affluent families.

Provincial disability benefits and income support are income- or asset-tested, which means beneficiaries must meet income thresholds to qualify. For example, in Ontario, a Henson Trust beneficiary cannot hold assets over $40,000 if they want to receive ODSP payments. They can also directly receive only $10,000 from their family over a 12-month period, plus additional funds for disability-related costs, such as equipment or therapy. This means that if a beneficiary receives more than these amounts from a parent, they will be deemed ineligible for provincial support payments.

As a result, many affluent families say, “Why bother?” says Malis. “Some believe what’s the point of safeguarding a benefit that pays $1,169 a month?” Indeed, in a situation where an inheritance is dramatically higher than the amount a disabled individual would receive in government benefits, then setting up a trust aimed at a disabled beneficiary might not be advantageous.

But other factors need to be considered, too. Disabled individuals might lose access to specialized programs and high-cost medications covered under provincial health programs.

“There might be programs that it might be hard to put a dollar value on,” says Jason Heath. These might include community supports and employment programs.

Malis says, “These programs offer access to services that you can’t go out and buy.”

As a result, he tells many skeptical clients: “Your son or daughter is an adult, it’s their right.”

More from Canadian Family Offices:

• Have choppers, will travel like never before in Canada’s West
• How to equip kids with healthy attitude toward money, a step-by-step guide
• DNA kits plus travel: exploring your ancestry
• Hiring the right kind of savvy can maximize sale of a business
• What to do if you’ve been left out of the will

Please visit here to see information about our standards of journalistic excellence.