Committeeship Archives - Wolseley Law LLP

Feb 06

Understanding a Henson Trust in Manitoba for People with Disabilities

By gtheule Committeeship, Estates, Power of Attorney, Wills

Navigating the complexities of estate planning and ensuring financial security for loved ones with disabilities can be a daunting task. In Manitoba, one effective tool that people look at for its flexibility and protective benefits is the Henson Trust. This post aims to shed light on Henson Trusts, detailing their setup, operation, and associated risks to help Manitobans make informed decisions and help you consider if seeing a Winnipeg lawyer for the Henson Trust is the right way to help you plan.

What is a Henson Trust?

A Henson Trust, named after the landmark legal case that established its framework, is a unique type of trust designed to benefit individuals with disabilities (in this case, the “beneficiary”). It is a discretionary trust, meaning that the trustee has full control over if, when, and how the trust’s assets are distributed to the beneficiary. The primary goal of a Henson Trust is to provide financial support to a person with disabilities without affecting their eligibility for government assistance programs, such as the EIA or Manitoba Housing. This is because the assets held in a Henson Trust are not considered part of the beneficiary’s assets.

Setting Up a Henson Trust

Establishing a Henson Trust in Manitoba requires careful planning and adherence to specific legal requirements. The process typically begins with consulting a lawyer experienced in estate planning and trusts. The settlor, who is the person creating the trust, must draft a trust deed or will that explicitly states the trust’s discretionary nature. This document should appoint a trustee or trustees, outline the trust’s terms, and specify the beneficiary or beneficiaries. Choosing a reliable and trustworthy trustee is crucial, as they will have significant control over the trust’s administration and the welfare of the beneficiary.

Operating a Henson Trust

Once a Henson Trust is in effect, its operation hinges on the discretion of the trustee. The key part of a Henson Trust is that no one can require that the trustee pay any of the money to the beneficiary – that is how it avoids being included in the beneficiary’s assets. The trustee is responsible for managing the trust’s assets, making investment decisions, and deciding on the distribution of funds to the beneficiary. They must act in the best interest of the beneficiary, taking into account the beneficiary’s needs, government benefit eligibility, and the trust’s long-term sustainability. Trustees have the flexibility to disburse funds for a wide range of expenses, including living costs, medical care, education, and leisure activities, ensuring the beneficiary’s quality of life is maintained or enhanced.

Risks Associated with Henson Trusts

While Henson Trusts offer numerous benefits, they are not without risks. One significant risk is the possibility of the trustee choosing not to disburse any funds, especially if they are also the residual beneficiary of the trust. This scenario can occur if the trustee, motivated by self-interest, decides to preserve the trust’s assets for themselves rather than using them for the beneficiary’s needs. To guard against this risk, it is essential to choose a trustee who is trustworthy and has the beneficiary’s best interests at heart. Additionally, you can appoint more than one trustee or a professional trust company to ensure checks and balances are in place.

In conclusion, Henson Trusts offer a valuable estate planning tool for families wishing to provide for loved ones with disabilities, ensuring their financial security without compromising their access to government assistance. However, the success of a Henson Trust lies in its careful setup, the integrity and diligence of the trustee(s), and the ongoing management of its assets. By understanding the benefits and potential risks, Manitobans can make informed decisions that align with their estate planning goals, ensuring peace of mind and the well-being of their loved ones.

Apr 21

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Planning considerations as you get older

By gtheule Committeeship, Estates, Power of Attorney, Wills

Estate Planning

If you have a family, it’s important to make sure that they are taken care of after your death. A will is one way to do this. A will allows you to specify who will inherit your property and other assets, including who should care for any minor children if both parents die.
You may also want to consider setting up a trust as part of your estate planning process. Trusts can be used in many different ways–for example, they can be set up so that an heir receives money from the trust only when he or she reaches a certain age (a “spendthrift” clause), which could help protect against financial abuse by others; or they might allow for some flexibility over how much money goes into each beneficiary’s hands at different stages in life (such as college tuition).
If someone else needs power over your finances but doesn’t want total control over them (for example, if you’re too ill or incapacitated), then naming him or her as power-of-attorney may be necessary; this person would then be able to make decisions about paying bills on behalf of another person until such time as he/she recovers enough mental capacity again. You can read more about that here: https://wolseleylaw.ca/wills-estates-and-elder-law/

Health Care Planning

Health care planning is one of the most important things you can do to ensure that your wishes are respected and carried out. By creating a health care directive and assigning a health care proxy, you can ensure that decisions about your medical care are made according to your wishes. If you have chosen not to create an advance directive or assign a proxy, then provincial law will determine what happens if you become incapacitated and unable to make those decisions yourself.
When it comes time for long-term care (LTC), there are several options available: home-based LTC services such as adult daycare centers; assisted living facilities; nursing homes; or continuing care retirement communities (CCRCs). Each option has its own benefits and drawbacks depending on how much assistance is needed from staff members at these facilities–and each comes with its own cost structure as well!

Financial Planning

As you age, it’s important to have a financial plan in place. This can include creating a budget and planning for retirement, as well as exploring financial assistance options that may be available.

Housing Arrangements

Senior Living
If you’re an older adult, or if you know someone who is, it’s important to explore options for senior living. This can include independent living facilities or assisted living facilities. You may also want to consider moving in with family members or friends who live nearby.
Home Modifications
As people age, they often need help with daily tasks such as bathing and dressing themselves. When this becomes too much for them alone–or when it becomes impossible for them alone–it’s time to make some changes in their home environment so that they can continue living safely on their own terms without needing constant assistance from others around them all day long every day throughout each week. Some examples include installing grab bars near toilets; widening doorways so they’re easier for wheelchair users; adding ramps outside entrances where snow piles up during winter months

Insurance Planning

Long-term care insurance
Long-term care insurance can be a good option for people who are concerned about the cost of nursing home care. It’s important to evaluate your options carefully, though, and make sure that you understand what kinds of benefits each plan provides before buying one.
Health insurance options
If you have employer-sponsored health insurance, it’s important to evaluate whether or not this coverage will continue after retirement. Long term drug coverage will typically end after retirement and so it may be important to consider what that coverage may look like, and what government Pharmacare limits and deductibles might be for you.

Tax Planning

Tax Planning
A tax professional can help you plan for retirement and ensure that you are taking advantage of all the deductions and credits available to you. Tax planning is also important for ensuring that your estate is properly structured to minimize taxes on death, which may include setting up trusts or other legal arrangements ahead of time.

End-of-Life Planning

When you’re faced with end-of-life planning, you may be thinking about what arrangements to make for your funeral and burial. You may also want to consider how much time you have left and what kind of care you would like in the event that your health deteriorates.
You can help ensure that these decisions are carried out in accordance with your wishes by creating an end-of-life plan. This includes deciding on funeral arrangements, such as whether or not there will be a public viewing or open casket service; who should attend; where it will take place; what music is played during services; whether or not there should be flowers sent by family members; etc.; creating a living will (also known as an advance directive) which outlines how medical treatment should proceed if one becomes incapacitated due to illness or injury. Even MAID is becoming more complex, with new rules set to take effect soon. Talking through those options can be important as well.

Caregiver Arrangements

If you’re caring for an elderly loved one, you may need to hire a caregiver. You can also look into finding support services in your area and making arrangements for respite care.
If you are caring for someone who has dementia or Alzheimer’s disease, it’s important to know what legal arrangements should be made before they lose their ability to make decisions on their own behalf.

Technology Planning

Assistive technologies: Assistive technology is any device or service that helps people with disabilities to do things they cannot do on their own. Examples include screen readers for people who are blind, text-to-speech software that converts written words into audio speech, and devices that allow people with mobility issues to use computers more easily.
Online resources: The Internet has become an indispensable tool for many older adults and their caregivers. It can help them find information about legal matters, health care services and other community resources; connect with others who share similar interests; stay in touch with family members who live far away; participate in online discussions about topics important to them (such as aging); learn new skills like using social media platforms like Facebook or Twitter; order groceries from home delivery services like Instacart or Peapod; manage finances using online banking tools such as Mint (which also tracks spending habits); find transportation options such as Uber/Lyft ridesharing services–and much more!

Conculsion

There are a number of considerations when we think about getting older and many of them go hand-in-hand. For example you tax planning and estate planning will often overlap. If you have questions about these, or if you know that there is some planning that you’d like to do, please reach out and schedule a chat with us.

Nov 20

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Power of Attorney or a Committeeship

By gtheule Committeeship, Power of Attorney, Wills

People often ask the question: “Do I need to get a power of attorney or a committeeship for my loved one?” While the two documents, and powers that they grant, look similar, there are many important differences, and often the situation that you are in will be what determines which one is needed.

A Power of Attorney is a document signed by a person that gives authority to another person to manage some or all of that person’s affairs (although it is important to note that it does not remove the ability of the person signing it to manage their own affairs – it just appoints a “helper”). They are often, but not always, used to guard against later-in-life inability to manage one’s affairs whether due to dementia, physical incapability, or simply because it’s easier to have a loved one take care of day-to-day tasks. They need to be made while a person is still competent to make decisions, and are typically drawn up by a lawyer because, unlike a will, powers of attorney can only be witnessed by people in certain professions, with “lawyer” being the most common one. They are often made at the same time as a Will, but unlike a Will, a power of attorney is only valid while the person who made it is still alive, where a Will is only in effect after a person dies.

A Committeeship has some similarities and some differences. Like a power of attorney, a committeeship gives another person the ability to manage some of a person’s affairs while that person is still alive. The main difference is that a committeeship is a judge-made court order and they are only issued after someone has lost the ability to manage their own affairs. Because of this, they require sworn affidavits from physicians that the person can’t manage their own affairs, as well as a court appearance before a judge (although typically there is no need for witnesses to be called). This makes committeeships significantly more expensive to obtain than making a power of attorney in the first place – often thousands of dollars – although if the person no longer has the mental capacity to make a power of attorney then it may be the only option for a family member to take control of the affairs of someone.

There are some other differences as well: Most often, when we draft a power of attorney, we give as many powers as possible to the person who will be taking on the powers. With a committeeship the powers that are granted are more limited, and sometimes additional orders are required. For example, most powers of attorney are drafted with the option to allow the family member to sell the house if the person can’t live in it anymore. Under a committeeship, the house can only be sold after review of the sale by a judge, resulting in a delay on the sale and increased costs for seeking that review. A power of attorney can also name anyone (over 18, mentally competent themselves, and no an undischarged bankrupt) whereas a committeeship can only be granted to a person who is a Manitoba resident.

In the end, it is often far easier on everyone involved to have a power of attorney in place before it is needed. With that said, if there isn’t one in place, it’s important to know that not all is lost and that a committeeship may be an option. Please feel free to talk to us if you have any questions, and let us know if there is any way that we can help with your committeeship or power of attorney questions.

Committeeship