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One of the most challenging aspects of future planning is finding people to shepherd the plan far into the future.  Therefore, it is not surprising that setting up an RDSP presents the same issue – who can help manage the financial aspects of the plan if help is needed?  If you haven’t opened an RDSP yet, read on.

For those who need assistance in managing their finances, someone with the following qualities is required:

–          The must know and care for you or your loved one

–          They must know about RDSP’s

–          They must be trustworthy

–          They must be willing

–          They must be a long term prospect

Finding the right person may be as easy as asking a sibling or as difficult as approaching an acquaintance or going to court. However, taking the time and care to do so provides both practical assistance in managing an RDSP asset and peace of mind in knowing that asset is in good hands.

Step 1:  Get the facts!

The person who oversees an RDSP is called a holder.  They are the RDSP’s shepherd.  They oversee contributions, investments and payments.

The person who the RDSP is set up to assist is called the beneficiary.

There are three possibilities for a holder:

  1. The beneficiary is a child (17 years or younger) – Parents or legal guardians MUST be the holder until they are 18 and then parents MAY continue as the holder.  If they are able, the beneficiary can become sole or co-holders when they are 18 (or older).
  2. The beneficiary is 18 or older and able to manage independently – The beneficiary MUST be the holder unless another person is given legal authority to manage the RDSP.
  3. The beneficiary is 18 or older and needs assistance in managing the RDSP – This is where you need to find someone who fits the ‘job description’ checklist above.
    • In BC, a Representative can be appointed under the Representation Agreement Act. Check out www.plan.ca or www.nidus.ca for more information and support.
    • You may apply for an “adult guardianship” order.  The legislation is different in each province and the “adult guardian” has different names from province to province (Committee – BC; Trustee – AB; Adult Guardian – ON; Curator – PQ).  We don’t recommend guardianship – see our book Safe & Secure (link to information about Safe & Secure) for more information – but you may not have another option.

Step 2. Act!

Get more information about your options:

–          Talk to your bank – Are there any obstacles around holdership and what does the bank recommend?

–          Talk to PLAN – You are seldom the first person to face a challenge.  Find out what others have done by reading the rdsp.com blog and signing up for our ezine for regular updates (links)

–          Talk to family and friends.  No matter the solution, you don’t want to be the lone shepherd on the journey.

Step 3.  Get Involved! – Advocacy

Our advocacy motto is: “When it’s broken, fix it!”

PLAN lobbied the Minister of Finance to create a federal Representation Agreement for the RDSP.  He determined that the issue was provincial but brought measures to carry forward the Grant and Bond so people wouldn’t be penalized. This gives the provinces time to address the issue of representation and support around managing an RDSP.

The next advocacy step is to work directly with each of the provinces.  At PLAN, we are committed to seeing changes in legislation that support people to make their life decisions and manage their affairs without losing their rights.

PLAN is also working closely with RBC to explore bank-generated solutions to making the RDSP more accessible to adults who do not have legal capacity. They are a committed partner and dedicated to making the RDSP available and accessible to as many people as possible.

If you are interested in working on this issue with PLAN, email Jack Styan at jstyan@plan.ca

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If you would like easy to understand information on the new Registered Disability Savings Plan please visit www.rdsp.com.

For those of you who have been following along, this has been one of the most discussed issues since the RDSP was first launched in December of 2008.  The availability of the RDSP across Canada has brought into focus the absence of comprehensive supported decision-making vehicles in the Canadian provinces, other than BC (Representation Agreement).  Below you will see an excerpt from our June ActionPLAN which details the policy reforms we are looking into that may provide solutions to the guardianship issue.  To see a copy of our full ActionPLAN click here.

Excerpt from PLAN`s June edition of ActionPLAN – Jack Styan

The Issue

The RDSP has highlighted the limitations of our current legal system, which regulates decision-making for vulnerable adults.  Aside from BC, families who wish to assist an adult family member to open an RDSP are limited to adult guardianship.  Most people who are not able to manage their own RDSP would also be precluded from assigning a Power of Attorney.  Jurisdictional issues between the federal and provincial governments are an added complication.

Most families and people with disabilities that we have spoken with find adult guardianship lacking on one or more counts, including:

  • Cost;
  • Loss of legal status;
  • Indignity of being deemed “incapable”.

We have been working with the Federal Government, financial institutions, and other disability organizations to find a suitable solution.  It’s a complicated issue to try and solve because of the many considerations involved.

A solution needs to include the following principles:

  1. Where people are able to manage their RDSPs, they should be entitled to manage their own affairs
  2. Where people are not able, the best people to act as account holders are people who they trust, who know them well and who are actively involved in their lives
  3. When it is necessary to grant authority to manage their RDSPs to another, the powers granted should be as targeted as possible
  4. People should remain involved in any decision-making process to the extent that they are able
  5. There needs to be a simple method of naming alternates or reassigning authority
  6. Any mechanism should be easily implemented and administered.

Solutions:

Reforming guardianship laws across the country would be the best and most far reaching solution as the positive impact of the reforms would be more far- reaching than measures that affect just the RDSP. This, however, is a long term solution and we want an immediate solution that will give people immediate access to the RDSP.  The most promising solutions include:

1. Interpretation of “Legal Representative” by Canada Revenue Agency to include de facto guardian or next-of-kin.   An interpretation which broadens the understanding of “legal representative” beyond  powers of attorney and traditional adult guardianship (tutor, curator, trustee, committee, etc.), would enable a broader group of people to act on people’s behalf immediately.

2.  Creating a new federal process that allows people to assign someone to act as the “trustee” of their RDSP, without a test for contractual competence, would enable transfer of responsibility for managing an RDSP without requiring guardianship.

There are several situations where a trustee of benefits can be appointed in a relatively informal and streamlined process.  The processes protect people’s assets by assigning fiduciary responsibility.

Actions:

Look for more ongoing information on our blog on www.rdsp.com and add your thoughts and comments.

Raise your concern with both federal and provincial representatives when the opportunity arises.  The concern about adult guardianship as an inappropriate method with which to assist people to handle their financial, personal or health care decisions is not well understood.  We need people to know that it is a problem.

If you would like easy to understand information on the new Registered Disability Savings Plan please visit www.rdsp.com

I admit, when it comes to technology, I have no idea how to make choices.  If you asked me what the difference between a Bluray and HD-DVD player is, I would not be able to help you.  If you asked me which was better, a sony television or a panasonic, I really wouldn’y know.  So, you may ask, what do I do when you have to make a decision on something like a television, or a DVD player?  I ask my brother.  I will also admit, this isn’t the only time in my life that I will glady ask someone else for their opinion in order to make a decision.  I ask the people I trust in my life to help me make all sorts of choices, big or small.

One of the issues that has become more evident as the RDSP rolls-out is the large gap in the policy surrounding decision-making.  Currently, in many provinces, you either have the capacity to make your own decisions, or you do not have the capacity to make any decisions, in which case you need someone to be legally appointed to make those decisions.  

In many cases, it’s not that simple.

As I mentioned before, many people are more than capable of making most of the decisions in their life, but will also look to those they trust to help them make some of these decisions.  If many of us reflected on our own lives, we would see that a lot of the decisions we make are not alone.   So why do many provinces fail to provide a supported decision-making vehicle that acknowledges these trusting relationships?

In response to these issues, we created a 16 page Bulletin called Making Sound Decisions.  An electronic version of this bulletin is available for free at www.rdsp.com and can be accessed by becoming a free supporter of PLAN.

Articles within the Bulletin include:

  •  From Coast to Coast: A Patchwork of Rules – Review of the Provincial Rules of Guardianship.
  • Maria’s Dilemma: Choosing a Trustee – Runs through the roles and responsibilities of being a trustee, and what you need to consider when choosing a trustee.
  • Power of Attorney for Property – Provides an overview of a Power of Attorney and its relationship with the new RDSP.
  • The Representation Agreement: A Model for Canada – Gives an outline of Representation Agreements in British Columbia, which has become the benchmark of Supported Decision-making legislation.
  • Making Sound Decisions with Support – Outlines the importance of relationships and networks in a persons life and highlights the story of the Tesans.
  • Guardianship: A Last Resort… – Gives an overview of Guardianship, how it applies to families, and when it may or may not be the tool you want to set up for your family member.
  • Managing an RDSP: Time for Guardianship Reform – Reviews the requirements and responsibilities for those setting up an RDSP, and pinpoints gaps and issues that need to be addressed so that everyone who is eligible can benefit from the RDSP. 
  • The RDSP: A great opportunity, just out of reach – Written by Karin Melberg Schwier, this article runs through the story of Karin, her husband, their son Jim, and their struggles with financial institutions administering the RDSP.

Here is an excerpt from “The RDSP: A great opportunity, just of reach”, written by Karin Melberg Schwier:

We were on the verge of making arrangements to open an RDSP but when Jim and I stopped in, our loans officer said that a person must have the ‘mental capacity’ to understand the RDSP before they can open one. I said that Jim understands he has a bank account, that he deposits money, knows that his bank card works for purchases, and that an RDSP would be “money in his bank.” She said that’s not enough. The person must be able to have a conversation about various investment options. She compared it to smelling alcohol on someone’s breath; in that case, she would not be able to conduct banking business with that person.

If strict ‘mental capacity’ criteria are going to be applied to the RDSP, this is going to deny thousands of people across Canada access to this wonderful benefit. I hope that this means test won’t apply to my business at the bank; I sometimes I glaze over when our bank representative is talking investment options.

To read the rest of this story, click here and get your free electronic copy of our 16 page Bulletin Making Sound Decisions, as well as our new Updated RDSP Bulletin.


 

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