Legal Advice
Primary Services
Estate Planning, Wills, Testamentary Trusts, Inter Vivos Trusts, Offshore Trusts, Legal Assistance to the families of Persons with Disabilities, ODSP benefits, wealth protection, asset protection, contested and uncontested estate administration, mental incapacity matters, Powers of Attorney, tax strategies, Elder Law, and Succession Planning for Businesses.
Specialty Services
Wills with 'Henson' Trusts for parents and family members with disabilities.
Wills
Throughout your lifetime, you have worked hard to look after yourself and your family.You need to protect your assets and make sure that your family benefits as much as possible. In the case of a person with a disability, you need to protect that person's inheritance without jeopardizing their right to Disability Support payments.
Powers of Attorney
While we are still alive, each of us needs effective Powers of Attorney for Property and Personal Care. In the events that we become incapacitated, this ensures that our affairs are administered without unnecessary hardship or inconvenience to those we name as our attorneys.
Trusts
Trusts are powerful estate planning tools, essential in cases of incapacity of disability, and can provide protection of assets affected by divorce, litigation, spendthrift heirs, and estate taxes. Children's trusts and offshore trusts can maximize and protect your assets and your investments.
When you put your affairs in order, you will find security and comfort in that knowledge. You will be satisfied that the estate and assets that you have worked to create and maintain will be well protected and administered.
What will happen to my child after I'm gone?
This question causes great concern for many families. But, as you are aware, there is an extraordinary problem for parents whose children, young or old, receive some form of provincial disability support. A child or adult who receives child benefits or Ontario Disability Support Program benefits will be disqualified from receiving them if left an inheritance, unless:
- The parents' Will creates an absolute discretionary Trust which will protect the inheritance; and
- The Trust is funded by insurance or assets, and suitable Trustees are chosen to carry out the terms of the Trust.
Parents who know about this problem may intend to leave nothing for their child, since it would simply be used to replace other benefits until it is all gone, or to leave a share to another person in a 'secret trust'. These are poor choices for many reasons.
The only true solution lies in the 'Henson Trust', a special form of Trust arrangement. It is affordable and accessible to all families who can make use of it, but is not well known.
Henson Discretionary Trusts Protect Your Family
and Your Estate
If a family member with special needs is receiving Ontario Disability Support benefits, and if they are left an inheritance, that inheritance is considered an asset and will disqualify them from benefits unless special arrangements are made in the Parents' Will.
The only real solution to this inequity is a 'Henson' Trust, created by the parents' Will. Only available since 1989, when the case after which it is named was upheld by the Ontario Court of Appeal, it places estate assets in the car and control of a trustee to be administered for the benefit of the beneficiary. Inheritance placed in a properly prepared Absolute Discretionary Trust are not the asset of the child and will not affect provincial benefits.
Many families have members who require assistance in handling their daily affairs, regardless of their own abilities. Special beneficiaries often benefit from guidance in handling large sums of money or significant assets, temporarily or on an ongoing basis.
To solve these problems a trust may be created, during your lifetime (inter vivo) or according to the terms of your Will (testamentary). These trusts are invaluable in planning for your child's care when you are no longer there.
These special arrangements are necessary to properly ensure that loved ones will be given the extra care they deserve, and that an inheritance will not be wasted. Special legal counsel is necessary to ensure that the drafting of Wills follows the court-tested arrangements required, and to continually consider any changes in provincial regulations and new case law.
Independent Legal Advice - Family Arbitrations
A lawyer who is independent (not acting for the other person) must provide advice about the nature and consequences of referring a dispute to family arbitration. For example, if the wife has a lawyer, that lawyer may provide independent legal advice to the wife, but not to the husband.
Independent legal advice for a person considering family arbitration is available from family lawyers. A lawyer who knows about family law can be found through the Lawyer Referral Service of the Law Society of Upper Canada.
The lawyer providing independent legal advice will provide a certificate of independent legal advice to his or her client after giving the advice (before the arbitraion begins). A copy of the certificate must be attached to the family arbitration agreement.
Each side normally pays for his or her own lawyer. Legal aid is not usually available for family arbitrations.
According to the Family Law Act, independent legal advice is mandatory for family arbitrations. Any award from an arbitration that was done without both sides receiving independent legal advice will not be enforceable in court.