Written by Camille Kanhai, Senior Will & Estate Planner, Scotia Private Client Group, Toronto
A Henson Trust is a popular testamentary planning option for benefitting physically and mentaly challenged children. But, what if the beneficiary cannot look after herself or cannot handle money?
In Re Barrett, the court considered the situation of Avril Barrett – a grown woman with Down syndrome and bipolar disorder – who was receiving regular sums of money from the Ontario Disability Support Program (ODSP).
Avril was unable to take care of her personal needs, including hygiene and nutrition, and was unable to deal with her property. She managed with the help of her father and brother.
A Henson trust to benefit Avril was established under her mother’s Will. Avril’s father and aunt were appointed as trustees. Upon the death of Avril’s mother, her father recognized that Avril required additional protection and applied to be appointed Avril’s Guardian of the Person and of her Property.
The court agreed there was a need for a Guardian of Property and Person and stated: “The best people to take care of Avril and the only people who want to take care of her, are the people who have always taken care of her, her father and her brother”.
I have encountered parents who are extremely worried about their challenged children’s financial well being on their death. I often raise trust options. I also raise the question of Guardianships for the Person and Property. This often stumps parents as it is not an easy task to find someone to take over the parental role. But often this is the critical missing link in the planning process. Effective planning will not only address the way assets are to be held, but also who is going to have the responsibility for managing these assets on behalf of the challenged beneficiary.
Isn’t is more effective to raise the issue now, rather than leave it unattended or to be resolved by strangers on death?