Appendices

Part 2: Trusts

Appendix D
Sample Discretionary Trust Created by a Last Will and Testament

The following is the sample of the Last Will and Testament of Susan Vivas (described in Chapter 7). It is presented here as an example of what your lawyer may include in your will to create a discretionary trust.

(Do not copy this will for yourself. Get legal advice from an experienced lawyer in these matters to prepare or change your own will to meet your own needs.)

Last Will and Testament of Susan Vivas. [We have removed only the standard opening of name, place and revocation of previous wills to save space.]

TRUSTEES

2.I APPOINT my husband, Johan Vivas, to be the sole Executor and Trustee of this my Will, provided that if my husband should die either in my lifetime or after my death but before the trusts hereof shall have terminated, or should refuse or be unable to act or to continue to act or should by deed resign as my Executor and Trustee, then I APPOINT Thomas Freeman [younger family friend] and Julia St. Laurent [neighbour] and Wilma Homings [niece] to be the Executors and trustees of this my Will in the place and stead of my husband and I declare that the expression "my Trustees" used throughout this my Will shall include, where the context permits, the Trustee or Trustees for the time being of this my Will, whether singular or plural.


DISPOSITION OF ASSETS CONTROLLED BY THE TRUSTEES

3.I GIVE the whole of my property, both real and personal of whatever kind and wherever situate, including any property over which I may have a general power of appointment, to my Trustees upon the following trusts:

Expenses and Death Taxes

(a)I DIRECT my Trustees to pay out of and charge to the capital of my general estate, my just debts, funeral and testamentary expenses and all succession duties and estate, inheritance and death taxes, whether imposed by this or any other jurisdiction whatsoever that may be payable to connection with any property passing on my death, and I hereby authorize my Trustees in their uncontrolled discretion to elect to defer payment of any such taxes or duties or to commute or prepay any such taxes or duties. Any duties or taxes so paid shall be treated as an ordinary debt of my estate.

Residue

(b)To pay or transfer the residue of my estate to my husband, Johan Vivas, if he survives me for a period of thirty (30) days. Notwithstanding the foregoing condition of survivorship, during the said period, my husband shall have the use of all articles of personal, domestic, household and garden use or ornament belonging to me at my death, including consumable stores and including all automobiles, snowmobiles, boats, motors, other vehicles and accessories thereto, and my Trustees may pay to or for my husband such amount or amounts out of the capital of my estate as they in their absolute discretion consider advisable without him being bound to the repayment thereof under any circumstances.

(c)If my husband should not survive me for a period of thirty (30) days, to dispose of the residue of my estate as follows:

Household Goods and Personal Effects

(i)To give to such of my children, Jessie Vivas and Mark Vivas who survive me such articles of personal, domestic, household and garden use or ornament belonging to me at my death, including consumable stores, which they wish to have or, if they cannot agree, as my Trustees in their absolute discretion determine, knowing that my children or my Trustees as the case may be will give effect to any wishes I may have expressed verbally or in writing with respect to the disposition of the said articles or any of them. Any of the said articles which shall be undisposed of in accordance with the foregoing provisions shall be sold by my Trustees upon such terms and conditions as they in their absolute discretion determine and the proceeds of any such sale shall fall into and form part of the residue of my estate, or such articles shall be given to such one or more charitable organizations as my Trustees in their absolute discretion determine.

Legacies

(ii)To pay to my daughter, Jessie Vivas, and my son, Mark Vivas, if they survive me the following legacies as soon as conveniently possible after my death, the sum of Five Thousand Dollars ($5,000.00) each.

Residue

(iii)If my children, Jessie Vivas and Mark Vivas or either of them survive me, I DIRECT my Trustees to set aside and keep invested the residue of my estate for my said children and during the lifetime of my said children my Trustees shall keep such residue invested and pay any amount or amounts or the whole of the annual net income therefrom together with any amount or amounts or the whole of the capital thereof to or for the benefit of either or both of my said children as my Trustees shall, in the exercise of an absolute and unfettered discretion, consider advisable from time to time. Any income not so paid in any year in accordance with the foregoing provisions shall be accumulated by my Trustees and added to the capital of such residue, provided, however, that after the expiration of a period of twenty-one (21) years after the date of my death, the whole of the said income each year shall be paid to or for the benefit of any one or more of my issue who shall be alive at the end of each such year in such proportions and in such manner as my Trustees in their absolute discretion determine, and in default of such determination in any year, or to the extent such determination does not extend or take effect, to those of my issue alive at the end of each year in equal shares per stirpes. I declare that the capital of such share and the income therefrom shall not vest in my said children and the only interest my said children shall have therein shall be the payments actually made to or for the benefit of each such child therefrom. Without in any way binding the discretion of my Trustees I further declare that it is my wish that in exercising their discretion in accordance with the provisions of this paragraph, my Trustees shall take account of and, insofar as they consider it advisable, take such steps as will maximize the benefits my said children would receive from other sources including governmental sources if payments from the income and capital of my estate were not paid to or for the benefit of my said children, or if such payments were limited as to amount or time. In order to maximize such benefits, I specifically authorize my Trustees to make payments varying in amount and at such time or times as my Trustees in the exercise of an absolute discretion consider advisable. I expressly declare that my Trustees shall not be required to maintain an even hand between the income beneficiaries and the capital beneficiaries when investing and administering such residue, but may in their absolute discretion favour one class of beneficiary over another.

Without in any way restricting the exercise by my Trustees of the discretion herein given to them, and without imposing a legal obligation upon them, I declare it is my wish that in making decisions concerning payments to or expenditures on behalf of my children, Jessie Vivas and Mark Vivas that my Trustees consult with and be guided by the recommendations of an Advisory Board. The Advisory Board shall consist of my Trustees and the following persons who shall be living from time to time:

Rosalie Vacance, Tamara Christians, Albertus Trentiem, Jacqueline Sante and James Sydney and any other person or persons appointed to the Advisory Board by the Advisory Board.

I further declare that it is my wish that my Trustees consult with the said Advisory Board as often as may reasonably be required but at least four times a year with respect to the arrangements to be made for the care of daughter, Jessie Vivas, from time to time and before encroaching on the capital of such residue for the benefit of either of my children and before making any payments of capital or income directly to my children and either of them for their own use. It is my wish that one of my Trustees act as the Chairperson of the Advisory Board and that my Trustees be receptive to all constructive suggestions and advice which the Advisory Board may provide to them from time to time with respect to any matter concerning the welfare and well-being of my children.


I AUTHORIZE and DIRECT my Trustees to pay an honorarium of $250.00 to each member of the Advisory Board (including themselves) each year who attend a majority of the meetings held by the Advisory Board in such year. I further AUTHORIZE and DIRECT that, if it is determined that my daughter, Jessie Vivas, could benefit from having the assistance of a companion to live with, my Trustees may make such payments towards the salary and expenses of such companion as they consider advisable.

Upon the death of each of my said children, my Trustees shall pay out of the capital of such residue, such part or the whole of the expenses of such child’s last illness and the burial expenses of my said child as my Trustees in their discretion consider advisable. Upon the death of the survivor of my said children, my Trustees shall divide such residue then remaining among my issue then alive in equal shares per stirpes.

Share for Grandchildren

(iv)If in accordance with the provisions of this my Will any grandchild of mine should be entitled to any part or parts of my estate, such part or parts (hereinafter referred to collectively as the ‘share’ of such grandchild) shall be held by my Trustees upon the following trusts:

My trustees shall keep such share invested and, until such grandchild shall attain the age of eighteen (18) years, shall accumulate and add to the capital of such share the annual net income derived therefrom, provided that notwithstanding anything to the contrary hereinbefore contained. I authorize my Trustees to pay to or from the benefit of such grandchild the whole or any part of the said annual net income in any year that they in their absolute discretion consider advisable until such grandchild attains the age of eighteen (18) years; and thereafter the annual net income from such share shall be paid to such grandchild until he or she attains the age of twenty-five (25) years, when such share then remaining shall be paid or transferred to such grandchild. Provided that my Trustees may at any time or times pay to or for the benefit of such grandchild any amount or amounts or the whole of the capital of such share as my Trustees in their absolute discretion consider advisable, provided further that if at the expiration of a period of twenty-one (21) years from the death of the last survivor of my issue born in my lifetime such grandchild should be under the age of twenty-five (25) years then, notwithstanding the foregoing provisions, the share held in trust for such grandchild or the amount thereof then remaining shall forthwith be paid or transferred to such grandchild for his or her own use absolutely. If such grandchild should die before becoming entitled to receive his or her share in my estate, such share or the amount thereof remaining shall be held by my Trustees in trust for the issue of such grandchild who survive him or her in equal shares per stirpes. If such grandchild should leave no issue him or her surviving, such share or the amount thereof remaining shall be divided among my issue who are the issue of the parent of such deceased grandchild who is a child of mine alive at the death of such grandchild in equal shares per stirpes or, if no such issue should then be living, among my issue alive at the death of such grandchild in equal shares per stirpes and held upon the same trusts as are herein provided for such issue.

Gift Over

(d)If at the death of the last to die of my husband, my issue and me the residue of my estate or any portion thereof should be undisposed of in accordance with the foregoing provisions, I DIRECT my Trustees to divide such residue of my estate or portion thereof to such one or more charitable organizations as my Trustees in their absolute discretion determine.

POWERS TO TRUSTEES

4.IN ADDITION TO ALL OTHER POWERS conferred on my Trustees by this my Will or by any statute or law, my Trustees shall have the following powers:

(a)IF ANY PERSON should become entitled indefeasibly to any share in my estate before attaining the age of majority, the share of such person and any income derived therefrom shall be held and kept invested by my Trustees, and the income and capital, or so much thereof as my Trustees in their absolute discretion consider necessary or advisable, shall be used for the benefit of such person until he or she attains the age of majority.

(b)I AUTHORIZE my Trustees to make any payments or transfers for any person under the age of majority or otherwise under a disability to a parent or guardian or person acting as such of such person, whose receipt shall be a sufficient discharge of my Trustees in respect of such payments. I expressly authorize the parent or guardian or person acting as such of any person under the age of majority or otherwise under a disability to make any election or elections on behalf of such person for the purposes of the Income Tax Act (Canada) or any similar legislation of any province or other jurisdiction in force from time to time.

(c)MY TRUSTEES SHALL USE their discretion in the realization of my estate, with power to my Trustees to sell, call in and convert into money any part of my estate not consisting of money at such time or times, in such manner and upon such terms, and either for cash or credit, or for part cash and part credit, as my Trustees in their uncontrolled discretion decide upon, or to postpone such conversation of my estate or any part or parts thereof for such length of time as my Trustees may thing best, and I hereby declare that my Trustees may retain any portion of my estate in the form in which it may be at my death for such length of time as my Trustees in their discretion deem advisable (notwithstanding that it may not be in the form of an investment in which trustees are authorized to invest trust funds and whether or not there is a liability attached to any such portion of my estate) and my Trustees shall not be held responsible for any loss that may happen to my estate by reason of their so doing. No reversionary or future interest shall be sold prior to falling into possession unless my Trustees in their absolute discretion see special reasons for such sale and no property not in fact producing income shall be treated as producing income. Without restricting the general power and discretion herein given to my Trustees, I authorize and empower my Trustees to retain as an investment of my estate, for such length of time as in their absolution discretion they deem advisable, my interest in any business or businesses in which I may hold an interest at the time of my death and I give to my Trustees full power and authority to do all things which in their discretion they deem advisable in connection with any such business or businesses to the full extent that I could do if living.

(d)I DECLARE that my Trustees when making investments for my estate shall not be limited to investments authorized by law for trustees but may make any investments which in their uncontrolled discretion they consider to be to the advantage of my estate and my Trustees shall not be liable for any loss that may happen to my estate in connection with any such investments made by them in good faith.


(e)I AUTHORIZE AND EMPOWER my Trustees to deal with any securities, share or other interest of or in any syndicate, organization, company or corporation which shall be from time to time held by my Trustees, to the same extent and as fully as I could if I were alive and the sole owner of such interest, and in particular, without limiting the generality of the foregoing, to take up new or future shares, rights and interests, to join in plans for reconstruction or reorganization, to exchange shares, rights and interests and to give, receive accept and exercise options and to pay out of my estate any moneys which may be necessary for any of the purposes aforesaid. I also authorize my Trustees to retain as an investment of my estate for such length of time as in their discretion they deem advisable any assets or other interest whatsoever acquired by my Trustees through the exercise of the powers hereinbefore given to them.

(f)I GIVE TO MY TRUSTEES absolute discretion from time to time and at any time or times to make or not to make any election or elections, determinations, distributions and/or allocations for the purposes of the Income Tax Act (Canada) or any similar legislation of any province or other jurisdiction in force from time to time as my Trustees in their absolute discretion deem to be in the best interests of my estate and/or the beneficiaries, whether or not such election or elections, determinations, distributions and/or allocations may or would have the effect of conferring an advantage on any one or more of the beneficiaries or could otherwise be considered but for the foregoing as not being an impartial exercise by my Trustees of their duties hereunder or as not being the maintaining of an even hand among the beneficiaries. Where any specific funds, shares or residue are created under this my Will my Trustees shall form such fund, share or residue, as the case may be, unless otherwise expressly provided in my Will. I specifically exonerate my Trustees from any responsibility with respect to any such elections, determination, distributions and/or allocations if they act bona fide in the exercise of such power.

(g)I AUTHORIZE my Trustees in their absolute discretion to sell, partition, exchange or otherwise dispose of the whole or any part of my real property in such manner at such time and upon such terms as to credit or otherwise as my Trustees in their discretion consider advisable, with power to accept purchase money mortgages for any part of the purchase or exchange price and to let or lease any real or leasehold property forming part of my estate, from month to month, or from year to year or for any term of years, subject to such covenants and conditions as they shall think fit, to accept surrenders of leases and tenancies, to expend money in repairs, improvements and, generally, to manage any such property. My Trustees shall also have the right to renew and keep renewed any mortgage or mortgages upon any real estate forming part of my estate, or any part thereof, to borrow money on such real estate upon the security of any mortgage or mortgages, and to pay off any mortgage or mortgages which may be in existence at any time forming part of my estate.

(h)MY TRUSTEES may make any partition or appropriation of any real or personal property forming part of my estate in its then actual condition or state of investment as they in their absolute and uncontrolled discretion consider advisable in or towards satisfaction or payment of any share or interest in my estate and may charge any share or interest therein with sums by way of equality of partition. For the above purposes, my Trustees shall have the power to determine the value of my estate and any part or parts thereof in any manner my Trustees shall see fit. Any such value shall become final and binding upon all the beneficiaries of my estate, notwithstanding that one or more of my Trustees may be beneficially interested in the property or any part thereof so valuated.

(i)I AUTHORIZE AND EMPOWER MY TRUSTEES to lend the whole or any part of my estate upon any security which they may deem sufficient or upon no security whatever; to enter into guarantees or indemnifications for the benefit of the beneficiaries of this Will and persons, firms or corporations other than the beneficiaries of this my Will and to give security thereof as my Trustees may in their discretion decide; and to renew and keep renewed such guarantees and indemnifications as my Trustees see fit; to borrow money from themselves individually or from any individual, firm or corporation, either without security or upon the security of any property, real or personal, entrusted to them or from time to time held by them under this my Will, for such purposes and upon such terms and conditions as my Trustees shall deem advisable, and without limiting the generality of the foregoing, for the payment of taxes, debts, duties, legacies or expenses and to mortgage, pledge, hypothecate or otherwise encumber, any or all of such property to secure the repayment of money borrowed; and to extend or modify any such encumbrance.

(j)NOTWITHSTANDING any direction to my Trustees to pay all of my just debts, I authorize and empower my Trustees to make arrangements for the gradual liquidation of any liabilities owing by me at my death, including, without limiting the generality thereof, claims against my estate arising before or after my death under the Family Law Act, R.S.O. 1990, c.F.3, as from time to time amended, or any successor statute, and to compromise, settle, waive or pay any claims at any time owing to my estate, or which my estate may have against others, for such consideration or no consideration, and upon such terms and conditions all such claims if my Trustees deem same advisable, and I hereby specifically exonerate my Trustees in connection with any such settlements if they act bona fide.

(k)Any benefit, whether as to income or capital or both, or income from capital to which any person shall become entitled in accordance with the provisions of this my Will or any Codicil thereto, shall not fall into any community of property which may exist between any such person and his or her spouse and shall not form part of his or her net family property for any purpose or purposes of the Family Law Act, R.S.O. 1990, c.F.3 in the Province of Ontario and any amendments thereto or any successor legislation thereto or any similar legislation in any other jurisdiction, but shall remain the separate property of such person, free from the control of his or her spouse. The separate receipt of such person shall be a discharge to my Trustees in respect of any such payment.

(l)I AUTHORIZE any one or more of the beneficiaries of this my Will, (notwithstanding that such beneficiary or beneficiaries may be a Trustee or Trustees of this my Will), to purchase any part or parts of my estate, real or personal, either at public auction or by private contract, provided in the latter case that the sale shall be conducted by my Trustees (or by the disinterested Trustee or Trustees of this my Will in the event that a beneficiary or beneficiaries so purchasing is also a Trustee or Trustees of this my Will), and shall be at such price or prices and subject to such terms and conditions and either for cash or credit or for part cash and part credit as the Trustee or Trustees of this my Will conducting the sale shall consider fair and reasonable.


(m)MY TRUSTEES ARE HEREBY AUTHORIZED, if they so desire, to appoint an agent or agents (which without limiting the generality of the foregoing shall include a trust company, investment counsellor or investment counsellors, or chartered accountant or chartered accountants) to act as their agent or agents in respect of the administration of my estate assets or to keep estate accounts and records. My Trustees may from time to time in their discretion terminate any such appointment and appoint another agent or agents to so act. My Trustees are further authorized to fix the amount of any remuneration that shall be a charge upon my general estate and payable out of the capital or income thereof in such proportions as my Trustees from time to time decide upon. I hereby declare that the amount of any such remuneration shall be deducted from any compensation to which my Trustees may from time to time be otherwise entitled. In making any such arrangements as aforesaid I authorize my Trustees to place the investments comprising my estate assets or any of them in the custody of such agent or agents, to transfer such investments or any of them into an agency account with such agent or agents or its or their nominee, and to delegate to such agent and agents any or all of the discretionary powers herein given my Trustees with respect to the investment and management of my assets.

(n)I HEREBY DECLARE that my Trustees shall not be liable for any loss that may happen to my estate or to any beneficiary hereunder resulting from the exercise by my Trustees in good faith of any discretion given them in this my Will.

CHILDREN BORN OUTSIDE MARRIAGE

5.Any reference in this my Will or in any Codicil hereto to a person in terms of a relationship to another person determined by blood or marriage shall not include a person born outside marriage nor a person who comes within the description traced through another person who was born outside marriage, provided that any person who has been legally adopted shall be regarded as having been born in lawful wedlock to his or her adopting parent and any person who is born outside marriage and whose natural parents subsequently marry shall be regarded as having been born in lawful wedlock.

TRUSTEES’ COMPENSATION

6.MY TRUSTEES SHALL BE ENTITLED to receive reasonable compensation for their care, pains, trouble and responsibilities in and about the affairs of my estate and to be reimbursed for all expenses incurred by them provided that any Trustee, who is also a beneficiary, shall only be entitled to be reimbursed for expenses and to receive a reasonable per diem payment for time spent on the affairs of my estate. If the amount of compensation for my Trustees is approved by the Trustees and a majority of the adult beneficiaries under this my Will as at the date of payment, and provided there shall be at least one adult beneficiary, then the settlement of such compensation shall be final and binding upon all persons concerned in the administration of my estate. In the absence of agreement, compensation shall be determined by a Judge of the Court in the jurisdiction where my estate is situate.

I AUTHORIZE my Trustees from time to time to pay to themselves from the capital and income of my estate such reasonable amount or amounts for compensation at such reasonable intervals during any account period in my estate, subject to subsequent approval of such amount of amounts so paid by a Judge or Authorized Officer of the Court on any passing of accounts or audit of assets of my estate.

IN TESTIMONY WHEREOF I have to this my Last Will and Testament, written upon this and [number] preceding pages of paper, subscribed my name this [day] of [month], [year].

SIGNED, PUBLISHED AND DECLARED

by the said Testatrix,


as and for her Last Will and)

Testament, in the presence of)

us, both present at the same)

time, who at her request, in)

her presence, and in the presence)

of each other have hereunto)

subscribed our names as witnesses.)


WITNESSES (2) Name, Address, Occupation, and signature.


Appendix E
Life Planning Guide

Chapter 6 includes a life planning method centred on a person’s unique gifts, needs and hopes. The following is an example of a life plan that organizes a person’s legal, financial and medical information. This one was prepared by Richard Fee and edited by The ‘‘Special Needs’’ Planning Group. It is reprinted with permission.

Life Plan Guide

Prepared by: Date:

Relationship to individual with “Special Needs”:

To Whom It May Concern,

(Answer those sections relevant to your child.)

Information About (Your Child’s Name)


General Information

Name List the full name of your child. Also the name he or she likes to be called.

Numbers List the Social Insurance Number, Complete Address Town, County, Telephone Number for home and work, height weight, shoe size and clothing size.

More Details List your child’s gender, fluent language and religion. Indicate whether your child is a Canadian Citizen.

Birth List your child’s date and time of birth, as well as any complications. List your child’s birth weight and place of birth as well as the city/town/country where he or she was raised.

Siblings List the complete names, addresses and phone numbers of all brothers and sisters.

Marital Status List the marital status of your son or daughter with a disability. If married, list the spouse’s name, his or her date of birth, the names of any children and their dates of birth. Also list any previous marriages, as well as the names, addresses and phone numbers of the spouses and children from each marriage.

Other Relationships List the special friends and relatives that your child knows and likes. Describe the relationship.

Guardians Indicate whether any guardians have been appointed. List the name, address and phone number of each guardian and indicate whether that person is a guardian of the person or the guardian of the estate. If alternate guardians have been chosen, list their full names, addresses and phone numbers.

Trustee Indicate whether you have set up a discretionary trust for your child and list the names, address and phone number of each trustee including alternates.

Power of Attorney  If anyone has power of attorney for your son or daughter, list the person’s full name, address and phone number. Indicate whether this is an enduring power of attorney.

Final Arrangements Describe any arrangements that have been made for your child’s funeral and burial. List the full names of companies or individuals, their addresses and phone numbers. Also list all the payments made and specify what is covered. Indicate location of any contracts or agreements.

Otherwise, indicate your preferences (in consultation with your son or daughter if appropriate) for cremation or burial. Should there be a church service? If the preference is for burial, what is the best site? Should there be a monument? If cremation is the choice, what should be done with the remains?

Medical History and Care

Diagnoses  List the main diagnoses for your child’s condition, such as autism, cerebral palsy, Down Syndrome, epilepsy, impairment due to age, learning disorder, developmental delay, neurological disorder, physical disabilities, psychiatric disorder or an undetermined problem.

Seizures  Indicate the seizure history of your son or daughter: no seizures; no seizures in the past two years; seizures under control; seizures in the past two years, but not in the past year; or seizures currently.

Functioning  Indicate your child’s intellectual functioning level (mild, moderate, severe, profound, undetermined, etc.)

Vision  Indicate the status of your child’s vision: normal, normal with glasses, impaired, legally blind,  without functioning vision, etc. List the date of the last eye test and what was listed on any prescription for eyeglasses.

Hearing  Indicate the status of your child’s hearing: normal, normal with a hearing aid, impaired, deaf, etc.

Speech  Indicate the status of your child’s speech: normal; impaired, yet understandable; requires sign language; requires use of a communication device; non communicative, etc.

Mobility  Indicate the level of your child’s mobility: normal; impaired, yet self ambulatory; requires some use of a wheelchair or other assistance; dependent on wheelchair or other assistance; without mobility, etc.

Blood  List your child’s blood type and any special problems concerning blood.

Regular Physicians  List your child’s regular physicians, including specialists. Include their full names, types of practice, addresses, phone numbers and the frequency and time of visits.

Previous Physicians  List their full names, types of practice, addresses, phone numbers and the most commons reasons for which they were consulted. Describe any important findings or treatments.

Dentist  List the full name, addresses and phone number of your child’s dentist, as well as the frequency of exams. Indicate what special treatments or recommendations the dentist has made. Also list the best alternatives for dental care in case the current dentist is no longer available.

Nursing Needs  Indicate your child’s need for nursing care. List the reasons, procedures, nursing skills required, etc. Is this care usually provided at home, at a clinic or in a doctor’s office. If appropriate, include the full names, addresses, phone numbers of any nurses that provide care on a regular basis.

Mental Health  If your child has visited a psychiatrist, psychologist or mental health counsellor, list the name of each professional, the address and phone number as well as the frequency of the visits and the goals of the sessions.

Therapy  Does your child go to therapy (physical, speech or occupational)? List the purpose of each type of therapy as well as the name, address and phone number of each therapist.

Diagnostic Testing  List information about all diagnostic testing of your child in the past; the name of the individual and/or organization administering the test address, phone number, testing dates and the summary of the findings. How often do you recommend that diagnostic testing be done? Where?

Genetic Testing  List the findings of all genetic testing of your child and relatives. Also list the name of the individual and/or organization performing the tests, address, phone number and the testing dates.

Immunizations  List the type and date of all immunizations.

Diseases  List all the childhood diseases and the date of their occurrence. List any other infectious disease your child has had in the past. List any infectious disease your child currently has. Has your child been diagnosed as a carrier for any disease or condition.

Allergies  List all allergies and current treatments. Describe past treatments and their effectiveness.


Other  Concerns  Describe any special concerns your child has, such as bad reactions to the sun or getting staph infections if he/she gets to hot.

Hygiene  Describe any helpful hygiene procedures such as cleaning wax out of the ears every few months or trimming toenails. Are these procedures currently done at home or by a doctor or other professional? What do you recommend for the future?

Operations  List all of the operations and the dates and places of their occurrence.

Hospitalization  List any other periods of hospitalization your child has had. List the people you recommend to monitor your child’s voluntary or involuntary hospitalizations and to act as liaison with doctors.

Birth Control  If your child uses any kind of birth control pill or device, list the type, dates used and doctor prescribing it.

Adaptive Devices  Does your child need any adaptive or prosthetic device, such as glasses braces, shoes, hearing aids or artificial limbs? List the manufacturing company(s) or supplier(s).

Medication  List all prescription medication currently being taken plus the dosage and purpose of each one. Describe your feelings about the medications. List any particular medications that have proven effective for particular problems that have occurred frequently in the past, and the doctor prescribing the medicine. List medications that have not worked well in the past and the reasons. Include medications that have caused allergic reactions.

Over the Counter Medication (OTC)  List any over-the-counter medications that have proved helpful, such as vitamins or cold remedies. Describe the conditions helped by these remedies and the frequency of use.

Medication Monitoring  Indicate whether your child needs someone to monitor the taking of medications or to apply ointments, etc. If so, who currently does this? What special qualifications would this person need?

Medication Procurement  Does your child need someone to procure medications for him or her? If so, who?

Diet  If your child has a special diet of any kind, please describe it in detail and indicate the reasons for the diet. If there is no special diet, you might want to include tips about what works well for avoiding weight gain and for following the general guidelines of a balanced, healthy diet. You might also describe the foods your child likes best and tell where the recipes can be found for favourite dishes.

Information About Parents

General Information  List each parent’s full name, social insurance number (SIN), complete address, phone numbers for work and home, date of birth, place of birth, city/town/country where raised, fluent languages, religion, blood type and number of siblings. Indicate whether he and she are Canadian Citizens.

Marital Status  Indicate each parent’s current marital status. If they are currently married, list the date of that marriage, and the number of children from that marriage. Also list the dates of any previous marriages; names of previous spouses; and names and birth dates of children from each marriage.

Family  List the complete names of each parent’s siblings and parents. For all those still living, list their addresses and phone numbers, as well as something about them, especially about their relationship to your disabled son or daughter.

Housing

Present  Describe your child’s current living situation and indicate its advantages and disadvantages.

Past  Describe past living situations. What worked? What didn’t work?

Future  Describe in detail any plans that have been made for your child’s future living situation. Describe your idea of the best living arrangement for your child at various ages or stage. Which of the following living arrangements would you prefer?

A relative’s home (which relative?)

Supported independent living in an apartment or house with_____hours of supervision.

A group home with no more than_____residents.

A private group home (which one?)

Foster care for a child.

Adult foster care.

Parent-owned housing with_____hours of supervision.

Housing owned by your child with_____hours of supervision, etc.

Size Indicate the minimum and maximum sizes of any residential option that you consider suitable.

Adaptation  Does the residence need to be adapted with ramps, grab bars or other assistive devices?

Favourites  List the favourite possessions that your child definitely would want to have in any living arrangement.

Community  List the types of places that would need to be conveniently reached from your child’s home. Include favourite restaurants, shopping areas, recreation areas, libraries, museums, banks, etc.

Daily Living Skills

Individual Program Plan (IPP)  Describe your child’s current Individual Program Plan or similar provincially mandated planning document (or attach a copy here).

Current Activities  Describe an average daily schedule. Also describe activities usually done on ‘days off’.

Monitoring or Assistance  Discuss thoroughly whether your child needs someone to monitor or help with the following items.

Self-care skills like personal hygiene or dressing.

Domestic activities like housekeeping, cooking, doing laundry or shopping for groceries and cleaning supplies.

Transportation for daily commuting, recreational activities and emergencies.


Reinforcement of social and interpersonal activities with others to develop social skills.

Other areas.

Caregiver’s Attitudes  Describe how you would like caregivers to treat matters like sanitation, social skills (including table manners, appearance and relationships with the opposite sex). What values do you want caregivers to demonstrate.

Self Esteem  Describe how you would best reinforce your child’s self esteem, discussing how you use praise and realistic goal setting.

Sleep Habits  How much sleep does your child require? Does he/she have any special sleep habits or methods of waking up?

Personal Finances  Indicate whether you child need assistance with personal banking, bill payments and budgeting. If so, how much help is needed?

Allowance  Indicate whether you recommend a personal allowance for your child. If so, how much? Also, list your recommendations about supervision of how the allowance is spent.

Education

Schools  List the schools your child has attended at various ages and the level of education completed in each program. Include early intervention, day care and transition programs.

Current Programs  List the specific programs, schools and teachers your child has now. Include addresses and phone numbers.

Academics  Estimate the grade level of your child’s academic skills in reading, writing, math, etc. List any special abilities.

Emphasis  Describe the type of educational emphasis (such as academic, vocational or community based) that your child currently concentrates on. What do you think would be the best for the future?

Integration  Describe the extent that your child has been in regular classes or schools during his or her education. What are your desires for the future? What kinds of undesirable conditions would alter those desires?

Day Program or Work

Present  Describe your child’s current day program and/or job.

Past  Describe past experiences. What worked? What didn’t? Why?

Future  Discuss future objectives.

Assistance  Indicate to what extent, if any, your child needs assistance in searching for a job, in being trained, in becoming motivated, and in receiving support or supervision on the job.

Leisure and Recreation

Structured Recreation  Describe your child’s structured recreational activities. List favourite activities and favourite people involved in each activity.

Unstructured Activities  What are your child’s favourite means of self expression, interests and skills (going to movies, listening to music, dancing, collecting baseball cards, roller skating, etc.)?  List the favourite people involved in each activity.

Vacations  Describe your child’s favourite vacations. Who organizes them? How often do they occur, and when are they usually scheduled?

Fitness  If your child participates in a fitness program, please describe the type of program, as well as details about where and when it takes place and who oversees it.

Religion

Faith  Indicate which religion your child belongs to, if any. Indicate any particular denomination or church of which your child is a member.

Clergy  List any religious leaders, ministers, priests or rabbis familiar with your child. Include the names of the churches, synagogues or religious organizations involved. List their addresses and phone numbers. Also indicate how often your child might like to be visited by these people.

Participation  Estimate how frequently your child would like to participate in services and other activities of the church, synagogue or religious organization. Indicate how this might change over time. Also describe any big events in the past.

Rights and Values

Please list the rights and values that should be accorded your child. Here are some examples of what you might list:

To be free from harm, physical restraint, isolation, abuse and excessive medication.

To refuse behaviour modification techniques that may cause pain.

To have age appropriate clothing and appearance.

To have staff, if any, demonstrate respect and caring and to refrain from using demeaning language.

Other

Give an overview of your child’s life and your feeling and vision about the future.

Describe anything else future caregivers and friends should know about your child.

Finances, Benefits and Services

Assets   List the total assets your child has as of this date. Indicate how those assets are likely to change, if at all, in the future.

Cash Income  List the various sources of income your child had last year. Include wages, government benefits, pension funds, trust income and other income. This might include Canada Pension Plan, Disability Benefit.


Services and Benefits  List any other services or benefits your child receives. These might be special services for children at home; home help; employment assistance; housing assistance; legal assistance; library services; child special education; transportation assistance; and vocational rehabilitation services.

Gaps  Indicate whether any services or benefits are needed but not being received by your child. Indicate whether plans exist to improve the current delivery of services or to obtain needed benefits.

Expenses  List all expenses paid directly by your child in various categories, such as: housing, education, health care, recreation, and vocational training.

List all expenses paid directly by parents, guardians or trustees in various categories.

List estimates of all expenses paid by third parties such as; insurance companies, pay direct Health Plan or paying for residential services.

Changes  Indicate how your child’s financial picture would change if one  or both parents died. Be sure to list any additional cash benefits your child would be entitled to. Also list any cash benefits your child might be eligible for.

The Paper Trail

Will  Describe the location of any will for your child and provide the names, addresses and phone numbers of the lawyers involved and of the executors.


Safe-Deposit Box  List any safe- deposit boxes owned by your child, the addresses of the depository, the contents and the name of any person who has the power of attorney to enter the box.

Life Insurance  Describe any relevant life insurance, group or individual, on your child. List the face amount, the insurance company, policy number, beneficiaries and where the policy is kept. Indicate how this might change at the death of either parent. Contingent owner, loss of group coverage.

Burial Papers  List the location of the documents of burial for your child, (deed to plot, instructions for burial, organ donations), the cemetery’s addresses and the preferred funeral home.

Health Insurance  Describe any relevant health insurance for your child, including hospital, major medical and accident insurance. List the type of coverage, the limit of benefits the insurance company, the policy number and the location of the policy.

Employment Saving Plans  Describe any relevant employee savings plans for your child, including the employer’s name, type of plan, value and date of valuation.

RRSPs  Describe any RRSPs owned by your child. Indicate account numbers and financial institutions where invested. List any RRSPs owned by parents that can be transferred to the child at death of parent.

Income Tax  Describe the relevant income tax information about your child. Indicate locations of the following papers; the records for the current year, the latest income tax return and its supporting documents and any earlier returns and documents if available.

Real Estate  Describe the location of real estate records if your child plans to live in your home. Include the location of purchase records, deed, receipts for capital improvements, inventory of contents and property tax receipts.

Trust  Describe any trusts established for  your child. Include the type of trust; the names, addresses and phone numbers of all trustee’s including alternates, and the recent value of the trust(s).

Advisors  Name all advisors, such as lawyers, tax preparers, insurance agents or financial planners. List their addresses and phone numbers.

Other  Describe the location of your child’s guardianship papers; school records; phone number of current case workers, if any; copies of birth certificate; Family Benefit Allowance forms; information about Family Benefit Allowance and other government benefits including most recent completed application forms.


Father’s SignatureDate


Mother’s SignatureDate



Appendix F
A Sample of a Trust Funded Through Insurance Benefits

The following material was written by Graeme Treeby and Rodney Dunn of The ‘‘Special Needs’’ Planning Group for residents of Ontario, ©1997. It is partially reprinted here with permission. The complete guide is available from the organization. This organization does not hold itself out as legal advisors and strongly encourages prospective clients to use lawyers in drawing up their plans.

This package outlines one possible way to arrange for the financial security of a financially dependent loved one. We do not specifically endorse this, or any other, plan but include it in the appendix for illustrative and information purposes only.

One of the founders of this The ‘‘Special Needs’’ Planning Group is a parent of child with a developmental disability. He, and his colleagues, use the term “Special Children” and ‘‘Special Needs’’ to reflect their own preferences. You may use different terms but the processes included in their materials are the same.


The “Special Needs’’ Plan Description

Introduction

Why Do I Need a “Special Needs” Plan?

Normally, when a disabled person inherits money, it will become part of their Liquid Assets for the purpose of determining eligibility for the Ontario Disability Support Program. For a single person currently receiving ODSP, the current Ontario threshold amount of liquid assets is $5,000. If the ‘‘Special Needs’’ person has assets in excess of that amount, then the ODSP benefits can be terminated until those assets are spent down to the $5,000 level. Once they are spent down, the individual must reapply for benefits. Unfortunately, the re-application process can sometimes take several months. During this time, both funding and other benefits like the Drug Card and Dental Card will not be available to the individual. In addition, when a person receiving ODSP funding receives income from other sources, then the ODSP cheque is reduced dollar for dollar for the income received.

The problem is further aggravated by the fact that the Succession Law Reform Act in Ontario requires that parents make provisions in their Will for their disabled child who may be financially dependent on them for support. The parents’ dilemma is; how do we provide a ‘Quality Lifestyle’ for our ‘‘Special Needs’’ Child without affecting the ODSP entitlements while at the same time satisfying the Laws of the Province?


The basic premise of the ‘‘Special Needs’’ Plan is to provide our “Special Children with the ‘Quality of Life’ that they deserve and are currently enjoying while at the same time protecting their entitlement to the Ontario Disability Support Program and other Government programs. These programs are based on the assumption that our children have very limited assets or income. In order to protect these entitlements, we must be certain that any planning steps that we take give the appearance of not causing our children to be wealthy.

At the same time, it is imperative that our children cannot outlive the benefits that they derive from our planning and as parents, we want to have Guarantees in place that will ensure that our wishes are carried out after we are no longer here to guide the process.

Finally, we must be aware of the impact of the Succession Law Reform Act that requires that parents of financially dependent children provide for those children after they are gone. We can accomplish all of the above mentioned desires through the use of a variety of techniques and legal instruments such as the Absolute Discretionary Trust (also referred as the Henson Trust), our Will, Power of Attorney, the Insurance Act and others.

The Beginning of the Process

To accomplish the above mentioned objectives, The ‘‘Special Needs’’ Planning Group has developed an enhanced program that will make use of these planning techniques and legal instruments to create and maintain a ‘Quality Lifestyle’ for our children.


The first part of the planning process is to identify areas that could be problematic. For example, you must be certain that existing insurance policies on the lives of the parents don’t have the “Special Child” as beneficiary. Your “Special Children” mustn’t have excessive cash values in their own insurance policies. You must ensure that your existing Wills, Powers of Attorney, RRSP Beneficiaries, Bank Accounts, Savings Bonds, and other detailed financial issues are consistent with ensuring your child’s income is kept with your financial goals for your child.

The ‘‘Special Needs’’ Insurance Contract

The ‘‘Special Needs’’ Planning Group has negotiated a very specialized insurance agreement with the Insurance Company. Unlike most insurance policies which make lump sum payments to beneficiaries at the death of the insured person, we have succeeded in having the proceeds held ‘On Deposit’ within the Insurance Company when the parent or the last parent in the case of a Joint Last-to-Die plan, dies. By holding these funds on deposit, they come under the jurisdiction of the Federal Insurance Act. Part of the protection that the Insurance Act provides is that these funds on deposit are fully creditor proof and as such, nobody, not even the Federal Government, can attach them in settlement of a debt of the parent, the child or the trustee.

In addition to holding the proceeds of the ‘‘Special Needs’’ Plan on deposit, the Insurance Company has agreed to pay out the interest earned by these funds based on the higher of either the minimum guaranteed rate in the Flex Account at the time of application or the 5-year compound Guaranteed Interest Rate or equivalent offered by the company at the time of the parent’s death. This rate will be adjusted every 5 years using the same rate guarantee. The interest amount will be paid to the Trustees of the Absolute Discretionary Trust which you, the parents of the “Special Child” have created in your Wills, for the entire lifetime of the “Special Child”. In turn, this interest amount is to be used to provide Lifestyle purchases for that “Special Child”. This payment option is Guaranteed, in writing, to continue until the “Special Child” eventually dies and at that time, the original capital amount will be paid out to whomever the parents wish; tax free.

We have chosen the 5-year rate to be the basis of the payments since it is higher than many other interest bearing vehicles and yet, it is a Guaranteed type of investment. Our plan also offers a minimum interest rate guarantee based on the minimum rates offered when you acquired your insurance contract. We have not chosen Mutual Fund type investment vehicles since by nature, they can not guarantee a positive earning each and every month. Sometimes they incur losses in a given month and if this were to occur in your plan, then the “Special Needs” Child may not have the money required to provide adequately for the Lifestyle that is desired in that month.

It was also pointed out that this holding of the proceeds ‘On Deposit’ and paying the 5-year GIC rate is not something that most insurance companies will do. We approached many of the Canadian Insurance Companies and most indicated that they would not be willing to participate in this arrangement. Therefore, in order for the Plan to work, it is imperative that our ‘‘Special Needs’’ Insurance Contract be established and maintained.

In order to satisfy the requirements of the Succession Law Reform Act, it has been argued that a portion of the estate of the “Special Needs” Child’s parents should also be directed to the Discretionary Trust. It is believed that by doing this, the Public Guardian’s attention will be brought to the ‘‘Special Needs’’ Plan. This will demonstrate to the Public Guardian that the parents have indeed provided for the “Special Child” with a lifetime flow of cash from the plan and an emergency fund within the Discretionary Trust.

The role of the Trustee that the parents have appointed to manage the Discretionary Trust is greatly simplified through the ‘‘Special Needs’’ Plan. Instead of having a long list of duties relating to the investing and care giving to the Trust Fund, the Trustee’s role is that of a ‘spender’. It is their responsibility to ensure that the “Special Child” has the ‘Quality of Life Things’ that are required by the “Special Child”. They don’t have to spend their valuable time on managing and investing the Capital of the Trust Account. Further details regarding the duties of the Trustee are located in Section 2 of the ‘‘Special Needs’’ Plan.

As previously mentioned, the original capital amount of the ‘‘Special Needs’’ Insurance Contract is held ‘On Deposit’ within the Insurance Company. Once the “Special Child” has died, this original capital amount is available to be transferred to whomever the parents wish, on a Tax Free basis. Often this money is given to the Trustee, other siblings of the “Special Child”, or a Charity, perhaps as a reward for years of service to the well being of the “Special Child”.


The Will and the Absolute Discretionary Trust

The Absolute Discretionary Trust (often referred to as a Henson Trust or Discretionary Trust) is a specific type of trust agreement that parents normally set up in their Wills. It is a very carefully worded trust agreement based on the precedent setting ‘Henson Decision’ which had the final appeal dismissed in September of 1989. That court decision has provided parents and relatives of “Special Needs” people in Ontario with a vehicle by which they can provide inheritances to their children without having the ODSP (Ontario Disability Support Program) benefits terminated. This trust also allows you to describe how you will use the insurance benefits of our plan for the long-term financial assistance to your child.

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