The Newfoundland and Labrador Support Trust is not an absolute discretionary trust as it is exempted from consideration from testing for income or disability supports. It is therefore, able to be vested with the preson with a disability.

To my knowledge and according to information published by the Public Legal Information Association there has been no court test. THere is no legislation on the matter.

It is worth noting that NL became the second jurisdiction behaind BC to exempt the Registered Disability Savings Program from income and disability supports means testing.

The effect of this helps younger families due to the long term nature of the benefits and the fact that payout must begin at 60. There are significant bonds and grants and it is structured like the RESP.

Check PLAN BC for further information.

All jurisdictions should push to have governments allow the flow through.

I hope it works out for you.

Preet

I really found your article informative and would appreciate it if you could make some recommendations in my situation. To give you a little background, I am the Power of Attorney for my 39 year old Autistic Brother who had been living with our Mother his entire life and our Step Father for the past 18 years.

Our Mother died suddenly 3 years ago at 55 years of age and just recently our Step Father died suddenly, both leaving no will. Before his death my Step Father told several people, including myself that he had arranged a Trust for my Brother for over $200,000. To date we are not able to find any documentation to support this and we are in the midst of litigation with the estranged children of our Step Father.

My questions to you are as follows;

1. I was wondering if you know if a Henson Trust can be set up without a will, after or during litigation and if the courts are generally opposed to the Henson Trust. My Lawyer seems to feel that the courts may frown upon the idea of someone with a large lump sum collecting further monies from the government.

2. I was also wondering if there is a maximum amount for the Henson Trust in Ontario before ODSP would be affected. From my research it seems that on top of the above mentioned he can have $4000-$5000 in the bank, own a home, a car, and have RRSP’s and RRIF’s without any affect on his ODSP, is this true? If the ODSP is disqualified due to income at any one time, will his ODSP be reinstated again if the income goes below the qualifying amount?

3. If he is awarded the family home, can it be sold to move him to a more suitable residence and one located closer to family, without his ODSP being affected? I am wondering if the estate home is sold, the monies from the sale of the home, would they be put in the Henson Trust and then later used to purchase him another residence. Would this be within the guidelines of the Henson Trust?

4. I am considering contacting a Lawyer that deals specifically in Estate Law involving the Disabled, as I am concerned about ensuring that his needs are met for the future as my Mother and our Step Father had wanted. Do you know of anyone you could recommend? It seems the estranged children feel my Brother has no entitlements and I think I need a specialist to ensure I do what is best for my Brother.

Thanking you in advance,

M.

The Henson trust strategy is "fragile" everywhere according to what I’ve read in that any change in legislation will invalidate the structure (as happened in Ablerta in 1999 when they changed the regulations).

Since you can create the trust testamentarily, you can have it written into your will – so whatever it costs you to have a will drawn up should be your cost.

Once the trust is established – you’ll have the trustee fee and perhaps the accountant’s fee for preparing the trust’s tax return.

So as far as I know, it should be covered under the cost of drafting your will (or codicil if you are between reviews) and then maybe a few hundred bucks to maintain it. It would be better to ask a lawyer of course.