What is a Henson Trust? It is a solution that offers relief for parents and adults with disabilities, as decided by the Supreme Court of Canada.

If you have a loved one with a disability and you are looking for a way to provide for their care and well-being, then a Henson Trust could be the answer. This type of trust is specifically designed to protect the assets of a disabled individual without compromising their eligibility for government benefits such as Medicaid or Supplemental Security Income. The reason is that the assets in a Henson Trust are considered inaccessible to the disabled beneficiary, allowing them to maintain their eligibility for government benefits.

Aside from asset protection, a Henson Trust offers flexibility in terms of managing and distributing assets. The trustee can be instructed to use the assets for the beneficiary’s care and support, while also preserving their eligibility for government benefits.

Ultimately, whether or not a Henson Trust is a good idea for you depends on your unique circumstances. For those who are concerned about the care and well-being of a disabled loved one, a Henson Trust can provide peace of mind and security. By carefully evaluating the specific needs and circumstances of the disabled beneficiary, you can determine if a Henson Trust is the best solution for your needs.

How much money can be in a Henson Trust?

There is no set limit to the amount of money that can be in a Henson Trust. The amount that can be placed in a Henson Trust is determined by the grantor, or person establishing the trust, and can be any amount that they choose. However, it is important to keep in mind that the purpose of a Henson Trust is to provide for the care and well-being of disabled individuals, while also ensuring that they maintain their eligibility for government benefits such as Medicaid or Supplemental Security Income.

If the amount in the Henson Trust is too large, it could be deemed an available resource by the government and result in the disabled beneficiary losing their eligibility for government benefits. It is important to consult with a qualified estate or tax lawyer to determine the appropriate amount to place in a Henson Trust and to ensure that it is structured correctly to meet the individual needs of the disabled beneficiary.

How much does it cost to set up a Henson Trust?

The cost of establishing a Henson Trust can vary widely and is influenced by several factors including the complexity of the trust, the location where it is being established, and the attorney or legal expert involved in its creation. On average, the expenses for setting up a Henson Trust can be anywhere from a few hundred to a few thousand dollars.

The amount of money being placed in the trust, the number of beneficiaries, and the unique terms and conditions of the trust can all play a role in determining the cost. Additionally, setting up a Henson Trust may also require paying for necessary tax or legal advice and the cost of filing any relevant documentation with the appropriate government agencies.

The cost of establishing a Henson Trust is dependent on each individual case. It is highly recommended to seek guidance from a competent tax lawyer to accurately determine the expenses involved and to ensure the trust is structured to fully meet the needs of the disabled beneficiary.

SA v Metro Vancouver Housing Corp

SA v Metro Vancouver Housing Corp was a previous case. It determined a Henson trust cannot be used to exclude beneficiaries from social benefits. This is provided the trust meets certain conditions.

S.A., which is someone’s name, was a long-term tenant in a Vancouver subsidized housing project. Her sister was a trustee of a fund arranged for S.A.’s care, maintenance, education or benefit.

When S.A. refused to disclose trust information, the housing agency declined rental assistance. They did so on the basis that trust is an asset whose value is needed to determine eligibility. The SCC found otherwise.

The trust is arranged so S.A. cannot unilaterally collapse it. She cannot compel her co-trustee to pay her any legal fees and taxes.

SCC Justice S. Cote noted the arrangement is essentially a Henson trust:

“…S.A. has no enforceable right to receive any of the Trust’s income or capital: unless and until the Trustees exercise their discretion in her favour, S.A.’s interest in the Trust is akin to a mere hope that some or all of its property will be distributed to her at some point in the future.”

Since S.A. can’t independently decide how the trust is used, she can’t discharge debts or liabilities, including monthly rent, unless her co-trustee agrees. As with all Henson trusts, the funds are outside the beneficiary’s control.

That being the case, the Metro Vancouver Housing Corporation (MVHC) had no basis to require S.A. to disclose the balance in the trust, the SCC found.

And, as the trust is not an asset, S.A.’s failure to disclose it should not have affected whether MVHC considered her request for rental assistance.

Advice From A Estate Lawyer

A Henson trust preserves funds for adults with disabilities after a parent is gone. According to a family lawyer, it provides comfort with a family member will be financially safer.

The trustee who the family member (estate “settlor”) appoints has absolute and sole discretion over how funds are used. That includes making decisions if the trustee feels they are needed, that support and maintain the beneficiary.

The trustee is not required to make funds available for support and maintenance. Choosing a trustee whose goals match the families’ is wise.

Only 59.4 percent of Canadians ( aged 25 to 64) with disabilities were in the labour force in 2017. A Henson trust can be a valuable addition to a will.

Estate Law Firm Help For Creating A Henson Trust

Contact us and we will connect you with an estate law firm.

Average incomes for working adults with severe to mild disabilities average from $19,160 to $34,330 annually.  People with disabilities who are on their own suffer the most.

32.7 to 61.4 percent of those living alone have incomes below Canada’s poverty line. More alarmingly, over 26 percent of Canadians with disabilities are going without many things they need. Many cannot afford prescription drugs.

As Al Etmanski, executive director of PLAN (Planned Lifetime Advocacy Network) points out, having discretionary trusts leaves a settlor’s funds in presumably safe hands.

Therefore, it reduces the opportunity for a disabled family member to be exploited or left vulnerable.

For example, a Henson trust must meet specific conditions to be beyond the reach of any individual social program.

It must be absolutely discretionary, the beneficiary must be unable to unilaterally collapse it and it must comply with the social program’s contractual terms.

A Henson Trust Must Meet Specific Conditions

Further, S.A.’s trust meets the first two conditions. She cannot pay herself without her sister’s consent. She does not benefit if the trust is collapsed while she is alive. Any remaining funds pass to a third party on her death.

The supreme court found the rental agreement infers assets are property that can be used to discharge debts and liabilities.

Since the court’s decision in Sattva Capital Corp. v Creston Moly Corp., the SCC is required to consider the ordinary and grammatical meaning of the word “asset.”

This is in light of the specific context in which it is used. Further, the mere fact of having an interest in the trust is not an asset.

This is because it does not relieve S.A.’s financial situation “in any meaningful way.” S.A. cannot decide on her own if any trust funds will ever be available to pay her rent.

In setting up a trust, families should be aware that monthly trust payments may be considered income for Ontario Disability Supports Program (ODSP) purposes.

This is true unless:

“approved disability-related items, services, education or training expenses that are not reimbursable;

the purchase of a principal residence or an exempt vehicle;

first and last month’s rent necessary to secure accommodation; or

any purpose up to $10,000 maximum in a 12-month period.”

Therefore, it’s important to make sure a trust is set up correctly.

Payments are considered voluntary

S.A. benefited from her Henson trust because the payments are considered voluntary. As with ODSP rules, voluntary payments are made at the discretion of a trustee, who has no obligation to assist the beneficiary.

Depending on the social program, that may not always be the case. The eligibility criteria associated with any social assistance program must be analyzed on their own terms.

Therefore, it’s important to determine how an interest in Henson trust factors into any applicable means test.

Before arranging a trust for your family member, speak with a wills and estates lawyer. Reach out to us via the live chat function if you need help with a Henson trust.

Estate lawyer in your province

In conclusion, below is a video from a law firm. We encourage you to reach out to a lawyer that focuses on estate lawyers in your province or state.

Be prepared to spend at least a few thousand dollars on an estate lawyer. Sometimes it can be much more expensive than that. As is the case with most areas of law, the more complex it is, the more expensive it is.