The "Special Needs" Planning Group

Unique Planning Issues

In many ways, the Special Needs community is unique. This is true not only in terms of the strength that families develop in dealing with the worries of having a family member with a disability but also in terms of the planning issues that must be taken into account when preparing for the future. If we want the best for our sons and daughters with disabilities, then we must examine things like their entitlement to Government programs, laws that affect them even after they reach the age of majority and their relationships with their siblings. This section of our web site will guide you through an exploration of these unique planning issues.

Succession Law Reform Act

The Succession Law Reform Act is a piece of Ontario legislation which is important to address when establishing plans for our sons or daughters with disabilities. It is designed to ensure that parents of financially dependant children, of any age, provide financially for the well being of those children in the event of their untimely deaths. When children are under the age of 18, there is a clear financial dependancy and therefore the parent's Wills must make financial provision for them. If, on the other hand, the child is over the age of 18, and a financial dependancy continues to exist, that child must be provided for. It is quite common for families to continue to provide for their sons or daughters with disabilities long after they have reached the age of 18 and if this occurs, it could be argued that the disabled person must be provided for under the provisions of the Will. Good practices dictate that we take this into consideration when designing plans for our sons or daughters with disabilities. Therefore, it would be unwise to disinherit the family member with a disability. If we did disinherit the person with a disability, our Will could be challenged in the courts and the end result could be a re-distribution of our estate assets.

Probate "Fees"

Very often, financial and estate planners will focus on the avoidance of probate fees as one of the major driving forces. While it is true that these fees exist, it may not be necessary to go to great planning lengths to avoid paying them.. In Canada, we do not have true Estate Taxes as they do in many other countries. However, we do have these probate fees which are paid into the Court on estates which are Probated. A recent court decision held that probate fees are in fact taxes. These taxes in Ontario are now $5.00 per $1,000 for the first $50,000 in your estate and $15.00 per $1,000 thereafter. This means that an estate of $100,000 in value will attract $1,000 in probate costs. This may not be significant in the total picture but when the estate value is $500,000, the cost of probate becomes $7,000 and this takes on a more significant role.

There are techniques which an estate planner can suggest which can reduce the probate costs payable by your estate. (For example, in some circumstances, life insurance proceeds and joint ownership of assets are exempt from probate cost calculation.) While devoting a great deal of time, energy and cost to the avoidance of probate fees may not be justified, some simple techniques can allow you to plan for their exclusion.

Fairness to Siblings

In my personal dealings with families of people with disabilities, I have encountered a theme which is expressed in most family situations. That theme is that parents of people with disabilities want to be certain that they do not burden their non-disabled children with undue responsibility for caring for their brother or sister with a disability; particularly after the parents are gone. Parents realize that the siblings of the person with a disability will have their own lives to live and they want to be sure that there are plans and supports in place to make the job of being a trustee or caregiver as simple and effortless as possible. They often also realize that a great deal of attention has been provided to the child with a disability over the years and that this often comes at the expense of the other children. Because of this, people strive toward ensuring that the plans that are put in place to provide for the person with a disability are clear, well thought out and fully supported, if necessary, by outside assistance. They also want to make sure that they don't "short change" the non-disabled children by directing their entire estate to the son or daughter with a disability at the exclusion of the other children. A proper balance between adequately providing for the person with a disability and the rest of the family members must be struck. A good planning advisor can help you in striking that balance.