A Henson trust is a type of trust designed to benefit disabled persons. Specifically, it protects the assets (typically an inheritance) of the disabled person, as well as the right to collect government benefits and entitlements.
The key provision of a Henson trust is that the trustee has "absolute discretion" in determining whether to use the trust assets to provide assistance to the beneficiary, and in what quantity. This provision means that the assets do not vest with the beneficiary and thus cannot be used to deny means-tested government benefits such as ODSP.
Funding a Trust
Savings. The establishment of a regular savings program may be able to provide adequate funds to Henson Trust when we die.
Parent's Estate. Provided that the parent's estate is sufficiently large, it could provide for their own needs in their elder years, as well as having enough left over to fund the trust when they die.
Family Members: Siblings, Aunts and Uncles, Grandparents could be willing and able to provide money to fund the trust.
Life Insurance: For the average family, life insurance may be the only way that they can leave a large lump sum to the trust by making small monthly payments. It is also possibly the only way of funding a trust that is guaranteed to provide the money when it is needed. The other resources mentioned above may not always be available but a paid-up life insurance policy can guarantee future funds.
Trustees play a very important role in planning for our sons and daughters with a disability. Very often, they are required to replace us in handling the financial decisions that affect the person with a disability's well being and quality of life. Some factors which must be considered are:
The Trustee(s) is given the responsibility of overseeing assets you have left in trust for your child. The Trustee(s) responsibilities continue over a long period of time and usually end when the trust is terminated.
The Trustee(s) job is not a simple one. It must be remembered that this position will continue after your death for a period of as much as 40 or 50 years. Therefore the selection of a Trustee(s) is a very serious issue indeed.
The Trustee(s) has the absolute discretion in terms of spending the funds contained in the Henson Trust on behalf of your son or daughter with a disability. Therefore you must take the selection process seriously in order to select the best people for the job.
The overall guiding principle to be adhered to by your Trustee(s) is that they must act in a way that is consistent with what a prudent individual would do. The trust money is not theirs and as such they must manage it with the utmost integrity and responsibility with particular reference to the fact that they will be scrutinized for their work.
The Trustee(s) must do the following:
Use their discretion in releasing funds from the trust
Manage, and invest the assets of the trust
Maintain records of transactions in the trust
Oversee the preparation of Tax Returns for the trust
Maintain real property owned by the trust
Act as keeper of your son or daughter's well being
Act within the ODSP regulations and the Trust Act