Part 2:

Trusts

Chapter 2

One Family’s Story
(The Beginning)

The Vivas family (not their real names) includes parents, both aged 54, and two children: Jessie, 21 and Mark, 18. Jessie has a developmental disability. She is able to do many things on her own but requires support to plan her time well, to help with any kind of change in her life, to plan and prepare a healthy diet, and for support in work and community situations. The parents, Susan and Johan are getting older and worried about how Mark and Jessie would live if they should die suddenly.

Susan and Johan have spent a great deal of time and energy to help Jessie live as typical a life as possible. They helped set up a pre-school program at their church when Jessie was very young so that she could play with other children. They fought to include Jessie in the neighbourhood public elementary, and then, secondary schools rather than have her travel by bus to a ‘special school’ 10 kilometres away from home. They spent many months to finally have Jessie included in the local community centre’s programs. They had less trouble getting her into the Guiding program at their local church where people knew Jessie well.

At age 21, Jessie left the secondary school graduating with basic understanding in several subjects. Susan and Johan have juggled support for Jessie to find and keep her part-time job at the mall. This success came through: (a) hiring a person to do one-to-one job support using provincial Ministry dollars, (b) working together with good colleagues at Jessie’s job to show them ways they can be helpful to Jessie and vice versa, and (c) getting extra support and encouragement from Mark and a friend who works at the mall. Some of these people have also helped Jessie do some part-time volunteer work at the local provincial park.

Susan and Johan want Jessie to live at home for at least another four or five years. They like to imagine and talk with Jessie about where she might want to live in the future. They are part of a family group that includes other parents who are discussing housing options for their children. This group is also beginning to understand the need and benefit of having a support circle. People who know their son or daughter gather together with the parents and their adult child periodically to help with each child’s day-to-day and long-term planning. This group becomes the people that the families can trust to continue on with planning and supporting the individual after the parents become unable to do it themselves or die.

Susan and Johan want to ensure that Mark gets a good start in life and that Jessie is financially independent as much as possible given the family’s overall income and assets. They have heard about trust funds through a financial advisor at Susan’s work. They know that financial independence is important for both of their children. However, given their work, raising both children, car pooling, Mark’s soccer games and practices, time spent with the family group looking at housing options and other family obligations (both Susan and Johan’s parents are in their 70s and 80s and require support), they just can’t seem to find time to figure out what trust funds are and whether they are suitable for one or both of their children.

The local Association for Community Living had a session on trust funds for interested parents. Susan took a day off from work to attend and got some basic information to share with Johan later that night. They were referred to several lawyers with some expertise in this matter who charge between $500-$1,000 to prepare a will that will establish such a fund for a family with less than $500,000 in estate assets. The legal fee is a lot of money but Johan likes to work with numbers and figured out that it would work out to only $50.00 a year over the next 20 years to provide his family with some financial security after their deaths and that was well worth the price.

Over the next twelve months they (a) discuss options with their trust company; (b) interview, choose and meet with the lawyer to prepare a will that includes a discretionary trust and prepare Powers of Attorney in case the parents become incapacitated to speak on Jessie’s behalf, (c) begin to examine the advantages of creating an inter vivos trust while the parents are still alive with a preferred beneficiary election for Jessie, and (d) continue the process of creating a circle of support around Jessie and the whole family. This circle begins the planning work that looks at the non-financial long-term needs within the family and for Jessie after her parents die or become unable to care for her themselves. These four activities take a lot of time and must be fit in with competing demands. However, this process of financial and support circle planning is forcing them to examine what it is they truly believe that Jessie, Mark and they, themselves, need to lead full, enjoyable and relatively, financially secure lives.


In Chapter 7 we examine the results of Susan and Johan’s efforts during the twelve months.


Chapter 3

What Are Trusts and
Are They for Me?

Trusts are relatively simple to understand and complex to use to their best potential. You will need the expert advice of both a lawyer and tax accountant to make the best choices for your specific circumstances. The following is basic information to provide you with a foundation upon which to make informed choices.

A trust is not a physical thing. Nor is a trust fund usually a single ‘fund’ at a bank or trust company. A trust is established by a lawyer who draws up a trust deed under each province’s trust act. This deed creates a ‘legal person’ under Canadian law and under the Income Tax Act just as a corporation is considered a ‘legal person’. The trust can open up bank accounts, buy property, get a loan, and pay income tax just as all individuals do in Canada.

Trusts are legal and financial tools to permit someone to transfer ownership in real property and other assets (including cash) to a third party for the benefit of a beneficiary. Trusts can accommodate almost any set of circumstances and are limited only by one’s imagination and their ability to pay legal and accounting expenses and ongoing trust fees.

A trust can best be explained with an example. Parents of a child with disabilities want to ensure that she is well taken care of financially now and also in the future when the parents have died. They entrust some of their present income and assets and/or a portion of their estate to someone else (trustee) who will make sure that the principle and interest of the trust are used in the best interest of their daughter. Therefore, there are three parties to a trust agreement:

1. The parents (called settlors) are the creators of the trust. They can make specific instructions on how the trust is administered and how income and principle must be distributed. Alternatively, they can choose to give the trustee(s) full discretionary powers as to how and when to distribute the trust principle and/or income and how to invest the assets.

2. The trustee(s) are chosen by the parents and often more than one person is chosen (e.g., 3 can be a good number to ensure some consensus before major decisions are made). The trustee(s) actually receives ownership and control of the assets with the legal requirement that they administer the entrusted assets for the benefit of the daughter. They must follow the directions within the trust as well as instructions provided by a court (if applicable) or provincial statutes. Trustees are usually family members, friends or professionals with some expertise in financial matters and trusts. Professional trustees usually charge a fee based on a percentage of money going into the trust, money taken out and a percentage of the total value of the trust per year. This fee covers the cost of the trustee to manage the trust and distribute income, and when needed, principle from the trust to meet the financial needs of the beneficiary from the trust. The actual fee depends on the size of the trust, the type of distributions, the degree of responsibility the trustee has and the performance of the particular trust. The fees can be 2-3% of funds going in and out plus .5 to 1% of the total value of the fund annually. Check with several professional trustees to get their rates. Trustees who are family members or friends are usually not paid unless the demands of the trust require the person to give up some of their own work time and income.

3. The daughter is the beneficiary of the trust. There may be directions in place to tell the trustee(s) how to make decisions in the best interest of the daughter plus what to do with the assets in the fund (if any left) after the daughter dies. If the trust is a discretionary trust, it will not have specific directions since the decision-making process is left completely at the discretion of the trustees. Discretionary trusts prevent the loss of government income to beneficiaries of such a trust.

There are different types of trusts but the basic concept is always the same: the parents give something away that they can never get back to a person or organization they trust. Either during their lifetime or after their deaths, that entrusted person or organizations uses the trust to meet their daughter’s short and long-term needs. That’s it.

Let us look at different types of trust agreements.

Types of Trusts

Trusts are so flexible that they can be quite simple or complex. There are different methods of categorizing trusts and we will look at the key ones. It is not necessary to know all these categories to open a trust fund. However, understanding some of the differences can help you understand the language used by trust companies and others in describing alternatives to you.

To understand the pros and cons of the various types of trusts, you will need to explain your specific situation to your lawyer and tax advisor. What is advantageous to one person would be financially harmful to another.


Trusts created by the parents before death or through their wills are called express trusts. Simply put that means that they created the trusts themselves. All other trusts are created by legislation or courts. For example, assets bequested to minors in a will are put into a trust until they reach a certain age. For that matter, all estate assets are kept in trust until the assets are distributed according to the will and provincial regulations.

Trusts can be created when the parents are alive (inter vivos trust) and/or through the parents’ will after their death (testamentary trust). Income earned in an inter vivos trust may, in certain cases such as with a dependent child, be attributed back to the settlor (therefore, no tax benefit to opening a trust in many cases to shelter assets or make them creditor proof) and may be taxed in the trust at the top marginal taxation rate. That means that for every dollar earned, the trust will pay about 50% in taxes plus professional fees.

For beneficiaries who receive tax credits for mental or physical disabilities, they can get ‘preferred beneficiary election’ status. This means that their income will be taxed at their own income tax level (often little or no taxes due) and they can keep the income in the trust to accumulate up to their 21st birthday. Other people must have their trust income taxed at the tax bracket of the trust.

There are taxation and lifestyle implications that should be examined before choosing between inter vivos and testamentary trusts. For example, rather than taking out family income now to put into a trust which will diminish what the family can spend on day-to-day or longer-term needs, a testamentary trust or insurance trust established out of an insurance policy may be wiser for life-style and taxation reasons.

Inter-vivos trusts can be used in estate planning as well. They can minimize the income taxes due on death by freezing the value of investments or the shares of a business at the time the trust was created. Check with an estate lawyer and tax advisor to see if this is a useful option in your case. They can also be used to take assets out of public view as trusts are not considered part of a person’s estate and, therefore, not part of the public record. This might also decrease probate fees for people with extensive assets. Lastly, these trusts can protect assets from creditors since ownership is transferred to the trust. Again, verify with a lawyer which of these possible advantages may apply to you. If they do not, then a testamentary trust will likely be more suitable.

In some instances, both types of trusts may be appropriate. In other situations, such trusts must be considered in light of other types of legal options so that the appropriate tax, probate fees and methods of controlling financial planning issues can be best determined.

Trusts can be categorized by who is the beneficiary. Testamentary trusts (created by a will) can be specifically for the benefit of: (a) the surviving spouse for the duration of their lifetime (spousal trusts); (b) other family members including infant children (family trusts); and (c) persons the deceased person thought unable to handle large sums of money (spendthrift trusts) or anyone else the person knows. You do not need to be related by blood to create a trust for someone.

Testamentary trusts may be used to defer income taxes and to reduce or minimize income taxes by splitting income between the trust and the beneficiary. Trusts are taxed as if they were an individual for income tax purposes. Any income earned by such a trust is taxed by the same graduated tax scale as personal incomes.

Much effort and planning is required to achieve the required objectives without running into potential pitfalls which can sometimes arise without proper advice.

The Absolute Discretionary Trust

Within the above types of trusts is a particularly-worded trust that may be most beneficial to families with financially dependent loved ones receiving government benefits. The Absolute Discretionary Trust Agreement is a very specific type of trust that can be set up either as an inter vivos or testamentary trust.

The basic feature that differentiates the discretionary trust from other types of trusts is that its special wording gives the trustees absolute and unfettered discretion on how and when to use the funds of the trust. This doesn’t mean that they can use the money for purposes other than for the benefit of the financially dependent child but they will decide how much to spend and on what it will be spent. Because of the very special wording of the trust, the Courts in Ontario (Ontario vs. Henson, 1987, E.T.R. 121 Div. Ct.) have decided that “the Absolute Discretionary Trust is not a liquid asset available for the maintenance of the recipient, so Family Benefits should not be cut off.” Similar provisions are also available in other provinces now.

Basic Rules About Trusts

For a trust to be valid, it must have 3 things (called the three certainties):

Certainty of intent -- a clear intention to create a trust for the benefit of beneficiaries by the settlor in his will or trust indenture or as a result of court order or statute. Ownership must be transferred from the settlor to the trustee and the trustee cannot use the assets for their own use. If the parents retain ownership or the trustee uses the assets for their own benefit, the trust is invalid.

Note: Precatory trusts are not real trusts. These trusts refer to an agreement where the parents rely on the moral values of another person to do what is right for their daughter but the person has absolute control and ownership of the assets including being able to use it for their own benefit.

Certainty of subject matter -- a clear description of what assets, i.e., income interests (dividends, rental income, interest on principle) and capital interests (property, equities) will be included in the trust. There must be an absolute transfer of ownership to the trust including non-income producing assets such as a coin collection. For example, it is often written in wills that the surviving spouse receives all the assets of the first to die. A different arrangement could be that the husband’s assets go into a testamentary trust (upon death) with the wife named as income beneficiary for the duration of her life and his two children the capital beneficiaries. The wife will receive all the income generated by the trust during her lifetime and the children will receive nothing until their mother’s death when they will equally share in the capital (principle) remaining in the trust. If drafted properly, such a spousal trust may defer taxes until the death of the surviving spouse.

Certainty of objects -- a clear description of the beneficiary(ies) of the trust either by name or by class (e.g., ‘all of my children’). One may use a class, such as ‘all my children’ to include children not yet born. A class must be very specific so that it is obvious to the trustee who is included and not included. For example, ‘all my close friends’ would be difficult for a trustee to decide who is, and is not, a close friend.

Inter vivos trusts are outside a person’s estate and, therefore, not held up in probate. There is an advantage, therefore, to create inter vivos trusts rather than testamentary trusts since the trust will continue regardless of the probate process. Other advantages, however, exist for the testamentary trust, therefore get professional advice that best meets your specific needs.

Only inter vivos trusts can be either revocable or irrevocable, i.e., they can be changed or not depending on how the settlor creates the trust. Most inter vivos trusts, however, are irrevocable, which means that the transfer of assets is permanent. This is done for tax purposes. The main advantage for a revocable trust is when the assets transferred will earn little or no income or capital gains. For example, if the parents own some art work, antiques, or other collectibles but worry that the children are not old enough to accept these gifts, they can create a revocable trust which they can cancel at any time when they feel the children are mature enough to appreciate and manage the gifts.


All testamentary trusts, after death, are irrevocable (i.e., the settlor’s estate cannot normally revise or collapse the trust). Until people die, however, they can always change their wills and the testamentary trusts.

The terms and conditions of a trust are called trust deed or indenture. These rules are either written out when the trust is opened while the parents are alive or written out in their will that will create the trust after their death. These rules should include whether the trust can distribute only income earned on the principle (capital) or both. If both, the deed should say whether the trustee has to wait a certain period of time before principle assets can be given to the beneficiary.

There is no minimum amount required to open most trusts. The trust may even borrow funds to avoid attributing the funds to one of the settlors. This may be particular helpful in the cases of trusts for infants, spouses and some arms-length situations (e.g., a trust set up to help a friend).

There is income tax payable on the income generated by the principle in a trust. It is important to know, for income tax purposes, that the income in an inter vivos trust may be taxed at the top taxation rate regardless of the settlor’s own tax level if the principle is sufficiently high. If others contribute to a testamentary trust, established by parents, after the parents have died, then the testamentary trust will become an inter vivos trust for taxation purposes and likely charged at the higher tax rate even though the beneficiary is probably at a lower tax bracket.

Beneficiaries can be given a life interest in property held by the inter vivos or testamentary trust. Life interest, also called life tenant, means the beneficiary receives the right to use a property for a specific period of time (often their lifetime) and upon their death the property title is given to another person. For example, a surviving spouse may have life interest in the family home until her death when it will be transferred to their child (this capital interest is referred to as remainder interest and the child as the remainder man).

Discretionary trusts are established by settlors in inter vivos and testamentary trusts to give their trustee partial or complete authority and discretion on how to invest and distribute assets and income within the trust limited only by the powers of trustees as defined by provincial trustee laws and the terms of the trust.

Non-discretionary trusts are established by settlors with clearly defined responsibilities outlined for the trustees including when and how beneficiaries can receive benefits, whether benefits include only income earned or also principle assets, and any specific limitations or requirements as defined by the settlor. For example, the parents may decide that only income earned in the trust can be given to the beneficiary except for the purchase of a home when principle may also be given out.

Multiple trusts by the same settlor for the same beneficiary are deemed to be a single trust. Since trusts are taxed as ‘individuals’, people have tried to income split by creating several trusts for one beneficiary. The Income Tax Act deems these multiple trusts to be one trust and taxes the income accordingly (usually at a higher taxation rate). However, different people (i.e., maternal grandparents and paternal grandparents) could create separate trusts for their granddaughter and the trusts would not be considered the same but taxed as individual trusts.


One trust for two beneficiaries or two trusts? Sometimes parents with more than one child will want to provide for their children through trusts. The question is whether it is better to have one trust with two beneficiaries or a separate trust for each child. The balance will be between flexibility in asset and income distribution versus tax implications. For example, if a family has two children and the first-deceased parent wants to create a trust for the children they can either:

Option A                                                                         

Create 1 trust with 2 beneficiaries.

Surviving spouse is trustee.

Trustee can only distribute income and assets between children to meet personal needs even if distribution not equally divided.

Trust taxed at higher level because earnings greater.


Option B

Create 2 trusts -- one for each beneficiary.

Surviving spouse is trustee.

Trustee can distribute income and assets within each fund to individual child (i.e., cannot give money from one trust to the beneficiary of the other trust).

Trust taxed at lower level as earnings less.

21-Year Rule

The Income Tax Act prevents settlors from sheltering taxable property gains in trusts indefinitely. Just as property is deemed to be sold on the creation of the trust (first deemed disposition date), the Act also deems that capital property be deemed disposed of every 21 years from the date of the contribution to the trust and taxed accordingly. Therefore, if you create a testamentary trust and you die on January 3, 2003, all the property assets of your trust still existing in 2024 will be ‘deemed’ sold. Even if your trustees keep the property in the trust, they must pay capital gains taxes on the assets as if they were sold. Knowing this, in advance, will help you, as best you can, plan to have sufficient other assets in the trust to cover those costs every 21 years.

Furthermore, according to the Accumulation Rule, income from the trust must also be distributed after 21 years as it cannot be accumulated for more than 21 years.

Assets and Funds That Can Go Into
An Inter Vivos Trust

Trusts are very flexible and, therefore, can include any of the following assets.

  1. 1.Cash and cash pledges including contributions by family members, the beneficiary herself, grandparents and extended family, friends, neighbours, colleagues and interested people.

  2. 2.Insurance policy benefits.

  3. 3.Real property.

  4. 4.Investments such as stocks and bonds.

  5. 5.Limited partnership interests and private businesses.

  6. 6.Collectibles such as coin and stamp collections, antiques, art.

Testamentary trusts may have all of these assets plus the residue of a person’s estate or a portion of that residue as described in the will.

Taxation of Income Earned
and Capital Property

Trusts are usually treated as ‘individuals’ by the Income Tax Act. Since the assets are permanently transferred into the trust (except in revocable trusts), the settlor, trustee and beneficiaries are not taxed on the earnings. All earnings are attributed to the trust. However, if part or all of that income is paid or payable to the beneficiary, it may be deducted in calculating the taxable income of the trust and taxed as income to the beneficiary (probably at a lower tax rate).

Note:

The inclusion rate of capital gains was reduced to 50% from the previous 66 and 75%, effective October 18, 2000, if the anticipated legislation is enacted.

Spousal testamentary trust or dispositions of an estate to a spouse will result in no tax until the death of the surviving spouse which results in a deferral of tax that may be attractive within certain families.

Taxation is usually different for inter vivos and testamentary trusts. Income retained in an inter vivos trust is taxed at the top personal marginal rate but special rules may enable income to be taxed in the hands of beneficiaries. Taxation within a testamentary trust is on the same scale as personal income tax. The taxation rate will change depending on the total taxable income within the trust. For example, in the case of parents in a high tax bracket, rather than the first parent to die leaving all their investments and assets to the remaining spouse who is already taxed at the highest taxation rate, the first-deceased parent can create a testamentary trust naming the remaining spouse the trustee (thereby, keeping control of the funds within the family) and the children as beneficiaries. They would save several thousand dollars in taxes per year on a trust with $100,000 in it earning interest at 10%. Those savings would compound over the life of the trust with large income increases for the beneficiary.

Following the death of a parent, if a testamentary trust is established, the Income Tax Act deems that the deceased disposed of any capital on October 18, 2000. The testamentary trust acquires such assets at the same value. Therefore, if the family cottage is put into a testamentary trust for a young child, then it is the value of the cottage upon death that is taxed. For example: the parents bought a cottage 30 years ago for $20,000. When they die and the property is put into the trust, it is valued at $150,000. The capital gain is $130,000 ($150,000 - $20,000). The Income Tax Act uses only 75% of the capital gains to calculate taxes owed. In this case, then, the capital gains are assessed as $97,500 ($130,00 x 75%). The parents are taxed at the highest taxation rate of 50%, therefore, the estate must pay $48,750 ($97,500 x 50%) in income tax. Good estate planning can minimize this tax burden and provide the maximum contribution to the trust (e.g., an insurance policy, other investments to cover the tax). Note: if the trust later sells the property for $200,000, the capital gains would be assessed based on the difference between the sale price and the deemed value at the time the trust was established ($200,000 - $150,000 = $50,000 capital gains). After October 18, 2000, the inclusion of capital gains is reduced from 75% to 50% of the capital gains.

When a testamentary trust distributes real property to a beneficiary, the property is taxed according to the increased market value of the property at the time when it became part of the trust. For example, the parents bequest their income-producing property in the trust for their daughter and it was valued at $150,000 on the death of the parents when it was contributed to the trust. The trust holds onto the rental property for 10 years, until the daughter is deemed mature enough to have the home in her own name. The value of the rental property, for income tax purposes, is still $150,000 although the true market value of the property may have increased to $350,000. If the daughter sells the property, it will be taxed on $200,000 increased value less deductions.

Tax considerations play an important role in estate planning. Get competent tax advice to minimize your taxes so you will have more income and capital for your beneficiaries. There are numerous techniques to minimize and/or avoid taxes besides trusts. These can include gifting, estate freezing, charitable donations and others to discuss with the appropriate professionals.

Trustees

Trustees are as important to choose as an executor of your will. This person, or persons, should ideally be able to:

  1. BulletLive up to a standard of honesty, due diligence and care which represents the legal standard of what a reasonable and prudent person would do in carrying out their duties, (professional trustees are held to a higher standard of knowledge and care).

  2. BulletMake unbiased decisions in the best interest of the beneficiary consistent with the settlor’s wishes.

  3. BulletUnderstand the settlor’s morals and principles (useful in making investment decisions).

  4. BulletUnderstand why the trust was established. Professional trustees, in particular, should understand whether you want that trustee to maximize the size of the trust for the benefit of the final beneficiary as opposed to spending the money for the benefit of the person for whom you set up the trust.

  5. BulletUnderstand investment alternatives and make sound investments without incurring unnecessary risks.

  6. BulletUnderstand basic financial management (e.g., be able to maintain, record and balance accounts, understand compound interest).

  7. BulletWhen necessary, hire agents or advisors to help in managing, investing and distributing income from the trust while recognizing that final decisions belong to the trustee.

  8. BulletLive near the beneficiaries in the case of a disabled beneficiary.

  9. BulletCommit the time and energy necessary to manage the trust, invest the assets, and distribute the principle and/or income while also spending time with the beneficiary as needed.

  10. BulletUse an even hand in making investment decisions to, as much as possible, benefit all beneficiaries equally, unless stated otherwise in the trust agreement.

  11. BulletLive a long time to fulfil their duties (i.e., do not pick an elderly person to be trustee of a trust expected to last 30 years).

  12. Bullet

  13. BulletUnderstand and apply the provincial rules and regulations of their respective Trustee’s Acts.

  14. BulletAct in ways that are not profitable to the trustee and detrimental to the beneficiary.

  15. BulletAvoid conflicts of interests between themselves and the beneficiaries.

Trustees can be family members or friends. They can also be professionals in private practice (e.g., financial advisors, accountants, lawyers) or at a bank or trust company. Alternates should be provided for in the event the Trustee dies or becomes unable or unwilling to continue to act.

Trust Fees

There are several ways that fees are charged for creation and maintenance of a trust:

1. When getting professional advice from a financial planner, lawyer and/or tax accountant, you will be charged their hourly rate or a package rate. This depends solely on the complexity of the trust you wish to establish, the time incurred, the degree of professional expertise, and the size and nature of the assets involved.

2. To create a trust:

A domestic inter vivos trust may cost between $600-$2,000 if it is relatively simple. More complicated trusts will cost more.

A domestic testamentary trust in a will is less expensive since the legal fees are already incurred when creating your will. Start up costs can be several hundred dollars to over $1,000 depending on the complexity of the trust.

International trusts for living or testamentary trusts depend on which country the trust is created in and how complex the trust. Although there may be tax advantages to creating a trust outside of Canada, you should ask whether the fees will cost more than the tax savings.

3. To maintain a trust: Fees will vary considerably depending on the circumstances, such as the size and nature of the assets, degree of skill required, the performance of the trust’s investments, etc. Some provincial legislation sets out the fee range payable to a trustee(s). In other jurisdictions, it is best to shop around to get the best service for the most reasonable fees. The annual care and management fee is usually based on the capital assets of a trust, its annual results and complexity and ranges from 0.25% up to 0.6% per year. The fee is generally divided between the revenue receipts and revenue disbursements. A further fee may be charged on the capital receipts and disbursements. There may also be an annual fee for preparing the trust’s income tax return. When there is more than one trustee, the fee may be split evenly or unevenly depending on the allocation of responsibilities, time incurred and expertise. One or more of the trustees may act voluntarily, without a fee.

4. Closing a trust: Usually, when a trust is closed and the assets are dispersed to the capital beneficiaries (those named to receive the remaining assets in the trust), a fee of between 1-2.5% of the assets distributed is charged by the trustee, again, depending on the size, complexity and time spent.

To understand fees, Sandra Foster writes:

In general, assets of less than $100,000 would not be large enough to offset a minimum fee for the services of a professional trustee, and this cost may be discouraging. Questions to ask the trustee about fees:


Are there annual fees: (check correct answer)        Yes        No

For preparing the income tax return?



For managing the assets, based on the value of the assets?



For the services of the trustee?



Based on the income earned by the trust?



Based on the money paid out of the trust each year?



For distributing assets to the beneficiaries?



If ‘yes’, ask to see the fee schedule and for an estimate of the costs that would be charged. Tip: Trustee fees can be negotiated, especially if the assets are of significant value.

Once you have such an estimate, subtract it from the expected return on investment of your trust. Is there enough income earned:

  1. 1.To pay all the fees to both your chosen family trustees plus any professional trustees they may hire?

  2. 2.To cover necessary taxes?

  3. 3.To pay for services and needs of the beneficiary(ies)?

If yes, than a trust may be the right vehicle for you. If no, check with your lawyer and financial advisor to see if there are other alternatives more suitable for your situation.

So, Are Trusts for You?

After a brief explanation of trusts, do they apply to your situation? Can they provide some degree of financial independence for your loved one? Are they an effective estate planning tool for you?

For families with a disabled or dependent child or adult, trusts are a method of long-term financial and estate planning that are underused in Canada. With the basic understanding of the options in this chapter, you should be able to talk with a financial planner, lawyer and/or tax accountant to understand what are your best options and whether or not one or more trusts may benefit your loved one.


Chapter 4

Present and Future Needs

Last Will and Testament

This book is not a summary of preparing wills but Appendix C may help you with the basics. As well, the resources listed at the end of the book may lead you to useful resources beyond your own lawyer.

Less than half of Canadians have a will. People without valid wills will have their estate divided according to provincial laws (different in each province) with almost certainty that your assets will not be divided to the persons you prefer, at the time you desire or in the way you would choose. You must have a will if you want to ensure the care and relative financial security of your loved ones and dependents in a tax advantageous way.

There is no perfect will, however. You are never really finished making a will. You cannot wait for perfection. Draw up a will now with the best information you have. You can always improve on it over time but for now, if you die suddenly, the disbursement of your estate will be much closer to your wishes than if you leave it up to the legislatures and courts to decide.

As you get new information about what will make your will better, you should have a codicil to your will or a new will drawn up. Neither a codicil nor a new will is very expensive especially if it can save valuable assets and time later on.


Beneficiaries under insurance policies, jointly held assets, RRSPs, and inter vivos trusts receive their money or assets outside of probate and are available for almost immediate use by the beneficiary (except infants and minors). Alternatively, if the beneficiary of an insurance policy or RRSP is the estate, the proceeds will be subject to probate and will pass through the will or testamentary trust. There are advantages and disadvantages to consider with many options available.

Powers of Attorney

Powers of attorney are documents that tell others who you want to speak on your behalf when you cannot, or do not want to, speak for yourself.

There are two main types of legal powers of attorney documents that a person signs to delegate legal decision making to one or two people of their choice. The first gives one or more persons financial and property decision-making power from the time the document is signed until the document is revoked by the person. The second gives all health-care related decisions to the person names as power of attorney when the person becomes incapable of deciding for themselves. It may be advisable to separate the two types of documents so that one person is not responsible for all decisions and not in a conflict of interest (e.g., save money for the estate or spend it on extended homecare costs). However, it may also be helpful to have the same person or persons (e.g., a spouse, trusted child or friend) named under both powers of attorney to speed up decision-making and cut down on conflicts.

In the case of a power of attorney for financial and property matters, a person chooses one or more persons to act on their behalf because they are no longer able to do so themselves. Someone may choose to do this when they are legally competent to act on their own behalf but cannot physically get to the appointments, make the telephone calls, or keep up with the high technology that is becoming increasingly more common (e.g., telebanking, ATM machines, Internet banking).

The power of attorney for financial and property matters can begin immediately upon signing the document or only come into effect when the person can no longer competently act on their own behalf. The power of attorney may be subject to specific instructions and restrictions. Alternate attorneys should be provided in case the person(s) first named dies before they can fulfil their role or if they become unable or unwilling to act.

Assets and Liabilities

To determine what your loved one may need for short and long-term finances, you must do a complete assessment of your own financial situation and that of your loved one. The forms in the Appendix G may help with this assessment if your advisor does not provide you with their own forms.

Once you have a sense of the likely annual and long-term expenses you would like your trust’s income to cover you can do the following math. For example, let us assume that your loved one needs about $40,000.00 in living expenses beyond what is available through government disability payments and other income they receive. Many fund managers suggest that a 7% return on investment is a reasonable average. Therefore to generate an average of $40,000 per year you would need a trust of about $572,000 (40,000 divided by .07). The sale of a family home, a life insurance policy or two, RRSP savings and contributions of family and friends could make up a large portion of this amount. The magic of compound interest would increase the principle of the fund if the beneficiary did not need all the income generated each year.

This is most probable when younger adult children may require less support and have fewer expenses than when they become older and have increased financial needs.


Chapter 5

Beginning, Maintaining and
Closing a Trust

Banks, trust companies, credit unions, lawyers and investment firms provide in-trust accounts. For example, a lawyer uses an ‘in-trust’ account at her bank to hold money used in transferring ownership of a home or property. Legally, the lawyer cannot access the funds for her own use although the account is in her name. Once the sale is finalized, the buyer’s money held in the trust account is given to the seller. This is not the same as a trust fund.

A trust fund must be opened by a legal document, usually prepared by a lawyer. This can either be an inter vivos trust (when the person or people creating the trust are alive) or a testamentary trust (through a person’s Last Will and Testament). With this formal trust deed, the trustees can open up a bank account through which they can pay bills, invest funds, pay taxes, etc. The trust is a ‘legal person’ under tax law and, therefore, the trust can hold, sell, invest, loan, and borrow as any other person.

Trusts are powerful tools and require you to spend as much time shopping for the correct trust format with the correct institution to meet your needs as you would shopping for the right family car (i.e., look at safety, longevity, service, performance, liabilities, and competition).

Once you have reviewed the information in this book about trusts, speak to the various professionals who have a specific expertise in trusts, most particularly discretionary trusts if you have a financially dependent loved one receiving government benefits. The example in the Appendix D of a testamentary trust may be helpful. The financial planner, accountant, tax advisor and lawyer will then walk you through the various investment options for your trustees to consider upon opening the trust and the types of fees required to open, maintain and, finally, close the trust. The appropriate professional should be able to give you an idea of how much income can be predictably earned with various investment strategies minus the fees to earn those incomes. This will give you a sense of how much disposable income the trustees will have to meet your child’s needs.

A detailed list of trustee responsibilities to maintain the trust is described in the Appendix F.

Remember that your trustees, carefully selected, will still not make all the decisions that you might make under similar circumstances. You may have given them absolute discretion to do what they think best under the circumstances to prevent a decrease in government benefits or you have given them reasonable discretion in other types of trusts. Trusts will not guarantee a perfect financial situation for your son or daughter but the trust will provide sufficient guidelines to help minimize mistakes.

Once a trust has fulfilled its purpose (this can take months or decades depending on what you have created) the trust must be closed. Again, there will be fees attached to this process that you should be aware of to ensure that the trustees will save adequate funds in the trust to cover these costs. See Chapter 3 for specific questions to ask about trustee fees.


Chapter 6

Non-Financial Considerations

Although Part 2 of this book is primarily about financial security for dependent loved ones, the emphasis in real life must be on the person’s inter-dependence emotionally, physically, spiritually, and socially with those around them. A rich person isolated from their family and community is worse off than a poorer person surrounded by a loving family, friends and a community that recognizes and accepts their gifts.

To put financial considerations in their proper context, one must look at a person’s life holistically. What is it that they have to offer others? What is it that they need from others? Financial planners, estate planners and ever-increasingly popular life-planning counsellors suggest we look at all aspects of a person’s life.

Appendix E is a detailed template of a life plan looking at a person’s personal data. The following life plan was designed by Janet Klees and is presented here with her kind permission. Her life plan is a planning tool used to describe a vision for a person’s life. Klees works with families who have adult children with developmental disabilities. As she writes: “I’m more comfortable doing each plan from scratch for the individual, but in reality the following ‘format’ is one way to include the key areas I want to include in each plan I help to prepare. My fear right now is that this format will make people think about writing an Individual Program Plan as was required by the Ontario government in the 1990s. Those plans were exercises in highlighting a person’s disabilities and weaknesses. Our life plans are about helping the individual, their families, friends and communities highlight the person’s abilities and gifts. I’ve only included the boxes in order to suggest the kinds of things that might be written in that area. Another format might be to use cloud designs rather than boxes to show their flexibility and adaptability more strongly. Each family could also eliminate the boxes entirely and put the information together in other creative ways. One family could write a life plan by simply writing out the person’s life story with their hopes and dreams for the future; another could use photos or drawings to illustrate the points, etc.”

A Vision for Life

It is important -- even essential -- to hold before us a positive, well-articulated vision of a good life for each person. This vision can provide us with direction in times of confusion when one must choose between many choices. The vision can provide us with ideas and possibilities in times of trouble, with a way of setting priorities in times of scarce resources, and with hope. A clear vision that is communicated among and shared by the people who care for the person most is our best hope for a good life for them, now and in the future.

We want this person’s life to contain the same things that all of us would include to describe a good and meaningful life for ourselves:

  1. BulletA place to call home.

  2. BulletSafety and security in one’s home and wherever they go in their community and wider abroad.

  3. BulletConnections to family, friends, and a wide range of acquaintances - people who value them for their own unique combination of character, gifts, talents, and strengths.

  4. BulletA sense of belonging -- people who value their presence and miss the person when they are not present.

  5. BulletA place or places to give, participate, and contribute in meaningful ways that are recognized, appreciated and welcomed.

  6. BulletSpending their days in personally fulfilling ways.

  7. BulletContinual opportunities to grow and expectations that they will grow and learn throughout their lifetime.

  8. BulletRespect of those with whom they come into contact.

  9. BulletThe opportunity to make good, well-supported choices and to be involved with governing the direction of their life.

  10. BulletGood health as a result of living a healthy life style.

  11. BulletA few close and committed relationships with family members and friends, and an ever-widening circle of those committed to be with them on their life’s journey.

  12. BulletA way to communicate with at least a small circle of people who understand them well and care to listen to the deeper messages within their actions and responses to situations.

  13. BulletHope for the future.

  14. BulletThe opportunity to work on a few of life’s dreams at any given time.

  15. BulletA satisfying spiritual life.


We are committed to finding ways to achieve or sustain the vision of this life for and with this person. The plan is that this person’s life will look like the following:

Home

Issues of safety and security

A place of peace

Welcome, and place that others want to be

Where this is – either a precise address, or a neighbourhood, or a type of dwelling with whom this might be shared

Family

Ongoing relationships, not dependent upon parents

Respect and belonging

Connections throughout time

Holding many family roles -- daughter, aunt, niece and cousin

Friends and Other Relationships

Personal committed relationships

Ongoing nature of developing new relationships and deepening others

Mutual respect, shared interests

Opportunities to be a friend, as well as having friends

How Person Spends Their Days

Typical household management routines

Holding a range of valued social roles connected to work, volunteering, pursuing interests, etc., and the importance of safeguarding these

Following the rhythms and routines that are typical and valued and followed by age and gender peers in the community

Work - part time, full time, ideal number of hours and when during the week

Opportunities to contribute to their community

Health

Healthy lifestyle choices - food, exercise, avoiding intoxicants, regular check ups

Specific choices for any conditions or health concerns

Recreation, Leisure and Hobbies

Importance of maintaining a balance in life

As opportunity to grow and learn

As a place to meet people and make friends

As place and time to participate and contribute to one’s community

The arts as opportunities in some way for each person to grow at home as well as outside interests

Lifelong Growing and Learning

Courses, interest groups, formal pursuit of knowledge

Travel, and other ways of learning through experience

Opportunities to make real choices, be supported in more complex decision-making

Participating in the other choices which govern her life

Growing ways of effectively communicating choices

Positive interpretations of choices that have been made

Support circles as a way of offering and safeguarding choice

Engaging and understanding civic duties

Spiritual

Church and other formal religious

Tradition, ritual and other private and personal ways of living a life of meaning

Dreams

Possible identification of hopes and dreams that now seem remote or even impossible

Other (e.g., financial needs)

Annual income need of $______________

Special funding needs for (e.g., own home in future, transportation, travel, communication tools) of $________

Other



An Example: Naomi’s Life Plan

Naomi Terry is a young woman living with her parents, Emma and John, in Scarborough, Ontario. They have all agreed to allow us to reprint Naomi’s Life Plan as an example of how such a plan was actually drafted. It is important to individualize the plan and include the person’s name often to highlight we are discussing a person’s life, not a framework or theory of how to ‘treat’ or ‘manage’ people’s lives. Janet Klees took her vision framework and used it to help Naomi and her family draft out this plan. Naomi has an active support circle that has reviewed this draft and uses it as a basis to acknowledge Naomi’s many gifts and talents. From this overall plan comes daily and weekly plans and activities discussed and implemented to find the best ways for Naomi to live fully and joyfully. The overall plan remains consistent while daily and weekly planning is adapted to meet changing needs and opportunities.

Vision

It is important -- even essential -- to hold before us a positive, well-articulated vision of a good life for Naomi. This vision can provide us direction in times of confusion, solace in times of trouble, priorities in times of scarce resources, and hope at all times. A clear vision that is communicated to, and shared by, the most important people in Naomi’s life is our best hope for a good life for her -- whether or not her parents are present.

We want Naomi’s life to include the same things that all of us would include to describe a good and meaningful life:

  1. BulletA place that Naomi calls home.

  2. BulletSafety and security in her home and wherever she goes in her community and wider abroad.

  3. BulletConnections to family, friends, and a wide range of acquaintances -- people who value her for her own unique combination of character, gifts, talents, and strengths.

  4. BulletSupport, as required, offered by a range of caring, knowledgeable family members, relatives, neighbours, friends, co-workers, and paid support assistants.

  5. BulletA sense of belonging -- people who value her presence and miss her when she is not present.

  6. BulletA place, or places, to give, participate and contribute in meaningful ways.

  7. BulletSpending her days in personally fulfilling ways.

  8. BulletContinual opportunities and expectations that she will grow and learn.

  9. BulletRespect of those with whom she comes into contact.

  10. BulletGood health as a result of living a healthy life style.

  11. BulletA few close and committed relationships with family members and friends, and an ever-widening circle of those committed to be with her in her life’s journey.

  12. BulletA satisfying spiritual life.

We are committed to finding ways to achieve or sustain the vision of this life for and with Naomi. As this vision becomes reality, Naomi’s life will begin to include the elements described below.

The most significant parts of our vision for Naomi centre around her desire to remain in her present family home and the vital importance of the loving circle of family members, friends and support persons in her life. Naomi indicates often that she wants to remain at home, even when her parents are no longer able to be with her. Her greatest fear is that she might be returned to a group home and that she might find herself alone when we are no longer here. Our vision, therefore, describes a future where:

Naomi will live in her family home with her parents for many years to come. The family home has been recently renovated to provide two complete, and (potentially) separate living arrangements. Naomi’s parents will gradually live more and more fully within their own quarters, as Naomi grows in her ability and comfort to live more and more independently (with a variety of formal and informal support) within her part of her home.

Naomi will never have to worry about having to leave or move away from her home, unless she clearly and explicitly decides this within the support of her circle over time. It is extremely important that Naomi be free to remain in her home for as long as she wishes. When her parents are unable to provide direct support, Naomi will begin to share her home with one or more persons – people that she has come to know over time and whose combinations of gifts and talents will match well with her own. Her parents’ quarters will be available for this companion (individual, couple, young family) who will then provide security, continuity, and some support to Naomi in exchange for a room and board stipend.

Naomi’s home will never resemble a group home. A group home comes about from two interconnected situations: a congregation of two or more vulnerable people with needs to be met; and a set schedule of routines, procedures, and safety requirements that cannot be individualized to one person without infringing upon the needs of the other. Support in her home will always be centred on Naomi, and routines and procedures will adapt to both her need for predictability and for accommodation at a given moment. These conditions will be almost impossible to meet when support people are also trying to meet the needs of another individual with disabilities.

Naomi will use the funds of the Options program to provide support assistants who will help her to develop and maintain the necessary life skills to allow her to be as involved in the day-to-day management of her home life as possible. The support assistants will always be woven into the support circle of family members and friends who have been a part of Naomi’s life over time.

Naomi’s home will be a place of security and sanctuary to Naomi always. It will be a place of welcome and hospitality to the many friends and relatives who are a part of Naomi’s life. Family, friends and visitors will enjoy spending time in Naomi’s home.

Naomi’s sister and brother and their families will always be actively involved in her life. When time and distance (Mississauga and Florida) take them away as daily contacts, they will remain involved in planning, advocating, and supporting with the rest of Naomi’s circle. They may also be available to move in with Naomi if the need arose.

Naomi will be fully supported by a wide range of caring, knowledgeable family members, relatives, friends, neighbours, co-workers, and paid support assistants. These people will be sensitive, creative and thoughtful in meeting her changing support requirements and other needs. They will do so in ways that ensure that Naomi maintains maximum control and input over the direction of her life.

Whether the supports for Naomi are provided by family, friends, a live-in companion, or paid support (and probably a combination), Naomi will always be surrounded by a caring and supportive network. This network or circle will need support to ensure their ability to advocate for Naomi. This will involve someone who knows Naomi well and loves her dearly ensuring, on an almost daily basis, that she is being treated kindly and in her best interests. It is not adequate to have someone who does not know her, check in on Naomi and her support on a set day once a week, because if the wrong kind of support were present, Naomi’s vulnerability would prevent her from being able to speak up for herself.

Naomi will be involved in a network of relationships, from casual acquaintances and co-workers, to welcoming neighbours and close family and friends. A significant number of these will be personal, committed relationships with individuals who are interested in ensuring that Naomi continue to lead a satisfying life and who will take a role in making sure this happens, if necessary.

Naomi will hold a number of strong, positive roles in both her home and neighbourhood, and will be surrounded by a number of people who understand and recognize the importance of safeguarding and promoting such roles for Naomi at all times.

Naomi will be engaged in some sort of regular part-time work (possibly a small business venture) from which she derives at least some income and a great deal of pleasure. This work will be enhancing to her image, will offer her challenges and opportunities, will be work which is highly valued by the community at large, and will make use of Naomi’s particular gifts, skills and interests.

Naomi will spend a part of each day and each week meaningfully engaged in managing her household (shopping, banking, cleaning, cooking, laundry, etc.) in ways which allow her to be involved in her home and life in significant ways.

Naomi will be involved in a rich variety of recreation and leisure opportunities both at home and in the wider community. Many of these will change over time to suit her growing and changing interests, but at least a few will reflect important, enduring leisure pursuits that Naomi chooses to follow.

Naomi’s dietary, sensory integration and medical needs will be taken into consideration in a holistic way by all those who know and support her. Meeting these requirements will be naturally integrated into appropriate parts of Naomi’s days and weeks as necessary.

It will be expected that Naomi will always have the potential and interest in personal growth and development throughout her life. She will continually be offered positive, achievable opportunities to learn new skills, and grow and develop in many areas.

Naomi will make ever-widening choices in life -- some on her own initiative, and some with varying amount of support from those who know her best. People who are in Naomi’s life will be creative in finding ways to make sure that she is participating in the choices which govern her life.

Naomi will have a range of positive, effective ways to communicate her choices, thoughts, concerns and joys. She will be surrounded by people who are able to understand her well.

Naomi will gather together with her support circle of family and friends regularly in order to celebrate, to plan, to coordinate, to dream and to support one another in hard times.

Naomi will have opportunities to grow and give, in heart and spirit, in a spiritual community that has meaning for her and offers her peace and satisfaction.

A Brief Appraisal
Where Are We Now in Regards to the Vision?

Home

Naomi is living at home - where she wants to be. Challenges for the future include:

How to ensure that this continues even after her parents are no longer able to be there?

How to make sure that her home always feels like home, and never feels like a group home to Naomi?

Relationships

Naomi currently enjoys a wide range of relationships -- her sister, Gwendolyn, is back in town and so is her new brother-in-law John Edward. Her wide, extended family (especially aunts and uncles) are a very important part of her life. She has relationships with her pastor, Father William, and with members of her church. She has a large and active circle with over 20 members. The relationships with these members vary, and in some instances are deepening.

Challenges for the future:

Provide opportunities for meaningful, committed personal relationships with extended family members (cousins, aunts, uncles).

Work on mutual friendships (and more) with her age peers.

Support

Naomi is currently well supported -- by family, friends, neighbours, and paid supporters. Challenges:

Finding, guiding, and keeping paid supporters working at ensuring that an inner circle of people really understand what good support for Naomi means.


Valued Roles…A Place in Community

Naomi holds a number of positive and valued social roles: pianist, artist-craftsperson, photographer, volunteer, church member, and more. Challenges:

To maintain and deepen current work and leisure roles

To ensure that the positive roles are safeguarded so that in times of changing schedules to meet other needs, the opportunities to fulfil these important roles are not lost (e.g., if Naomi is feeling stressed by her week, the piano lesson, the community exercise class, and her work take priority over other obligations).


We are grateful to Naomi and her family for sharing this life plan. Her life stories are inspirational.


Chapter 7

Family Story (The Sequel)

Susan and Johan Vivas (from Chapter 2) took a multi-pronged approach to securing the financial future of their children, Jessie and Mark. Jessie is now 22 and continues to live at home. She works at a different store in the mall and has increased her volunteer work at the provincial park. Mark is in his first year of university studying business. Susan and Johan:

Have spent time preparing a thorough life-plan for their financially-dependent child, Jessie, including defining a vision, examining long-term housing options, work possibilities and her financial needs. They also examined how Mark’s short-term education needs (he is now 19) and long-term financial needs can be met.

Helped develop formal and informal support circles around Jessie so that there would always be a network of support nearby when the parents were no longer able to provide that support themselves. They found that Jessie’s circles were also very supportive of Mark at this age and would be there for him should his parents die suddenly in the near future.

Discussed their plans and the likely financial resources remaining after their deaths with their children with the result that Mark decided he wanted a smaller share of the parents’ assets as he fully expected to have the financial means to take care of himself in the long term. This wish was accommodated by putting both children within one discretionary trust and leaving it up to the Trustees to determine how the funds should be divided between Jessie and Mark to accommodate changing circumstances in their lives in the decades ahead.

Worked with a lawyer to draft up a new will including provisions to establish a single discretionary trust for both children. As Mark is only 19, their present will has been written to provide for his short and medium term needs. In 10 years, they will review their will and revise it to recognize Mark’s financial status at that time. It is likely that a larger portion of the family assets will go into the trust for Jessie. However, Mark’s entitlement to his share of the family assets will continue to be provided for by making him the beneficiary of  his parents’ RRSPs (outside of the probate process).

Secured the commitment of three people to serve as primary trustees (family member and two friends), along with the trust company and support circles, in securing the financial stability of their children.

Will review every two years their plans and wills to ensure that they still meet the specific needs and circumstances of their children.


On going through this process, the parents said, “at times we felt overwhelmed. How could we begin? Who would even want to be involved? Will people need to know all our private thoughts? How can you put on paper what you want?”

To answers these questions they met with other parents and heard what they thought and what they were doing. “We took one step at a time and realized that planning is continuous and always changing. Inviting a network of support around our children provided us with a feeling of relief – other people, who know our children, will be there for them when we are not.”


Like most parents in this situation, Susan and Johan had a natural tendency to procrastinate about the larger concern of financial security for their children when their day-to-day needs already seem overwhelming. They suggest that “people call a lawyer who has had experience with writing wills that include discretionary trusts. Taking this step to write or revise your will is actually an easy step. The lawyer does most of the work. When you are ready, you can add to or change parts of the will as you learn more about the kinds of things that might be helpful. Keep proceeding slowly. Find someone who will encourage you to plan. This person might be at your local Association for Community Living or another family you know. It is difficult with our busy lives, but you feel more secure knowing that you are putting things into place.”


Susan and Johan have given us permission to reproduce Susan’s Last Will and Testament (all the names have been changed). Her document is the same as Johan’s Will. (See Appendix D: Sample Discretionary Trust Created by a Last Will and Testament). This sample may help you in preparing your own will and asking your lawyer about relevant legislation in your province. However, do not copy this will out for yourself. This wills works for the Vivas family and their particular circumstances. Your will must be specific to you and your circumstances and be drawn up by a knowledgeable lawyer in your own province.

On Our Own...Together


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Copyright © 2002 Harry van Bommel

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