This blog was written by Karen Crellin, Estate and Trust Advisor at MD Private Trust Company which is part of Scotia Wealth Management

There’s plenty of valuable information available on estate plans involving disabled[1] adult children –including several posts on this blog. You can find information that provides details about:

• techniques for setting up an estate plan involving a disabled adult child to ensure that child’s provincial disability benefits or other income-tested supports are not clawed back[2];
• qualified disability trusts[3]; and
• registered disability savings plans[4].

However, this information only covers the financial side of things. There are other aspects that need to be considered. Who will make personal decisions for a disabled adult child if both parents are deceased? Who will decide where the disabled adult child if is going to live? Will he/she have employment? In which types of programming will he/she participate? Are there any other day-to-day personal decisions that need to be made?

In Saskatchewan, it’s possible to nominate a guardian for a disabled adult child in a parent’s Will but only if the parent has been appointed the child’s guardian under a court order. So, the first thing parents need to do is ensure they are appointed as guardians while they’re alive. This involves applying for and securing a guardianship order from the court.

Why would parents need to apply for a court order when they’re already making these personal decisions for the child anyway? Until a guardianship order is granted to the parents, they technically do not have authorization to make decisions on behalf of an adult child. Decisions made by parents may be accepted and acted upon simply because it’s always been done that way. This informal method of decision-making is not able to be passed along by the parents to someone else.

A guardianship order and a named successor guardian in their Wills ensures parents have done what they can to plan for a disabled adult child’s continuity of care.[5] Alternatively, a guardianship order itself may be set up to contemplate a successor guardian upon the death of the parents.

Adult guardianship legislation varies from province to province. Make sure that whatever plan is put in place will work in the relevant jurisdiction.

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[1] Disability falls along a spectrum. For the purpose of this blog post, the word “disabled” is used to describe someone who is incapacitated to the extent of not being able to make any decisions for him/herself. The question of whether someone is disabled is different from the question of whether someone is incapacitated, although there are times where the two concepts are related. When considering guardianship of an adult, each situation is unique and must be considered based on facts. Someone who is disabled may not necessarily be incapacitated.

[2] https://www.allaboutestates.ca/an-estate-planning-tool-for-a-disabled-beneficiary/

https://www.allaboutestates.ca/henson-trusts/

[3] https://www.allaboutestates.ca/qualified-disability-trusts/

[4] https://www.allaboutestates.ca/registered-disability-savings-plans-dont-overlook-them/

https://www.allaboutestates.ca/not-all-rdsps-are-created-equal/

[5] In Saskatchewan, if a successor guardian is named in a Will, the successor will need to make an application to the court following the parents’ deaths to be confirmed as the successor guardian.