It is important to contact a lawyer who understands wills, estate planning AND disability issues, because a mistake in preparation can mean a loss of the disability pension and other benefits. Halldor Bjarnason's knowledge on disability issues, special needs trust funds and estate planning is widely recognized.

Discretionary Trusts and Estate Planning for Dependants with Disabilities and Special Needs

When a child with a disability turns 18 years of age, he or she may be eligible for Disability Assistance (a disability pension. . . it used to be called “GAIN”) from the provincial government. These benefits are means-tested; which means that a person can only receive them if they have assets below a certain amount. Each province has different allowable assets, but in British Columbia, the maximum amount of assets is $3000 for a single person. As a result, money received from parents, grandparents, uncles, aunts, brothers, sisters, etc. can affect the person's ability to continue to receive Disability Assistance.

A trust is an arrangement where a person (the "trustee") holds the money for the exclusive use or benefit of another (the "beneficiary"), at the request of a person who wishes to establish the trust (the "settlor"). Courts in Canada have determined that money held in a discretionary trust is not an asset for purposes of determining eligibility for receiving disability assistance. Money held in a discretionary trust allows people with disabilities to continue to receive provincial assistance.

Trusts can be Testamentary (made through a will) or Inter vivos (meaning a living trust - a trust set up while the settlor is still alive). For a living trust, it can be a revocable living trust, or a non-revocable living trust.

Since 1995, Halldor has been the chair of the Law Society of BC's Disability Advisory Committee. He regularly lectures on disability issues at the University of BC, University of Winnipeg, Langara College, and the West Coast School of Massage. He gives bi-weekly seminars on estate planning for parents with disabled children at Planned Lifetime Advocacy Network. He has also prepared numerous articles on estate planning, including the disability estate planning materials in the British Columbia Professional Legal Training Course manual.

Call us for unique solutions. We would like to assist you to ensure that the plans you have for your family are fulfilled.

The Voice of CP of Greater Vancouver have recently put together a useful manual on trusts and disability benefits. Click here for a copy.

Other ways we use our knowledge of disabilities:

• assisting people with disabilities in making wills;
• planning for future incapacity with enhanced representation agreements and enduring powers of attorney;
• maintaining independence with representation agreements;
• applying for court appointed decision-makers or "committees";
• avoiding the intervention of the Public Trustee and Guardian;
• creating solutions for home ownership for persons with disabilities.

Trusts can be of assistance:

• If the person with a disability is not on disability benefits, but has difficulty managing their money (a “spend-thrift trust fund”);
  
  
• if you are worried that the person with a disability might be exploited by a spouse or a "friend" (a "discretionary trust fund");
  
  
• if the person is capable of managing their own money but have received too much to qualify for disability benefits (a "nondiscretionary trust fund");
  
  
• to avoid Wills Variation Act challenges;
  
  
• to ensure that several children benefit from an estate but that the bulk of the money is left to support the person with a disability;