I have often suggested to clients with children or other intended beneficiaries of their estates with disabilities that they consider creating discretionary trusts for the beneficiary with a disability if the beneficiary is eligible for British Columbia benefits for persons with disability. For the purpose of determining whether someone is eligible for these provincial benefits, discretionary trusts are not included in that person’s assets. The Provincial Government will also allow a person with a disability who has received an inheritance or perhaps a settlement for a personal injury into a trust to qualify for the disability benefits.
I have discussed these trusts, sometimes referred to as Henson Trusts (named after the Ontario decision of The Minister of Community and Social Services v Henson,  OJ No 1121, aff’d  OJ No 2093 (Ont CA)) here. In a fully discretionary trust, the beneficiary has no right to the income or capital, except to the extent that the trustee exercises her discretion to make payments to the beneficiary.
Although discretionary trusts are a good way of making provision for a person with disability, allowing that person to receive provincial disability benefits, while allowing the trustee of the trust to use the assets in a manner that promotes the person’s independence, the trust may still affect the person with a disability’s eligibility for other programs.
This issue was recently highlighted in the British Columbia Court of Appeal decision in S.A. v. Metro Vancouver Housing Corporation, 2017 BCCA 2. S.A. is a person with disabilities who lives in a subsidized rental residence provided by the Metro Vancouver Housing Corporation. The Metro Vancouver Housing Corporation also provides additional rental assistance to some of its residents who meet certain criteria, including having assets below a certain amount.
S.A. is the beneficiary of a trust, created by court order varying her father’s will. To receive addition rent assistance, S.A. is required to provide verification of her income and assets. She disclosed to the Metro Vancouver Housing Corporation that she was the beneficiary of the trust, but declined to provide any information about the trust assets on the grounds that it was not relevant to her eligibility.
She unsuccessfully sought a declaration from the Supreme Court of British Columbia that the discretionary trust was not an asset within the meaning of her tenancy agreement or the application for additional rent assistance. She appealed the decision to the Court of Appeal, and the Disability Alliance B.C. intervened in support of her position.
Mr. Justice Goepel, writing for the Court of Appeal, held that the Metro Vancouver Housing Corporation was entitled to disclosure of further information about the trust assets. Different programs have different eligibility criteria. Metro Vancouver Housing Corporation has limited funds available for additional rent assistance, and information about discretionary trusts is relevant to choosing which applicants to provide the assistance.
Mr. Justice Goepel wrote at paragraphs 47 through 49 and 54 through 58, I accept the intervenor’s submissions that discretionary trusts play an important role in promoting the independence and full citizenship of PWDs. That said, discretionary trusts also provide some individuals with benefits unavailable to others who are not beneficiaries of such trusts. Whether such benefits should be considered in determining which individuals should receive public assistance raises difficult public policy questions. I do not accept the intervenor’s broad contention that if this Court allows MVHC to take into account an interest in a Henson trust, it would affect not just this housing assistance program but also every other form of social assistance that relies on an eligibility test based on asset value. Each social assistance program has its own individual eligibility criteria. Whether benefits from a discretionary trust must be taken into account will vary from program to program and depend upon the rules and regulations that govern eligibility for any particular program.  The issue underlying this litigation is what information MVHC can request from tenants in determining whether to grant rental assistance. In the specific context of this case, the question is whether MVHC can require S.A. to provide additional details of the Trust of which she is a beneficiary over and above the information she has provided to date.  I note at the outset that many of the submissions have lost sight of this fundamental question. The parties have made extensive submissions concerning the tenancy agreement, the nature of the Trust and the difficulty valuing the Trust given its discretionary nature. In doing so, they have conflated the information that MVHC can consider in determining the eligibility of a tenant for rental assistance and the material it may consider in determining which eligible applicants will actually receive rental assistance. This confusion is perhaps understandable given MVHC’s letter of April 23, 2015 that stated it required particulars of the Trust to determine S.A.’s eligibility for additional rental assistance. With respect, the question is not limited to determining S.A.’s eligibility for rental assistance but is also whether MVHC can take the Trust into consideration in determining how to exercise its discretion as to which of the eligible applicants should receive a rental subsidy.
 While S.A. may not have a vested interest in the Trust, she clearly has a beneficial interest. If she wishes to apply for a rental subsidy she must disclose the amount in the Trust.  MVHC, through the Assistance Application, requires applicants to provide information which MVHC considers to determine whether it will provide rental assistance. Applicants agree to provide such additional information as MVHC may require. In this case, MVHC says it requires further information about the Trust to determine both S.A.’s eligibility for rental assistance and, in the context of a program in which assistance is not available for all eligible applicants, whether S.A. should receive such assistance in preference to other eligible applicants.  I agree with the chambers judge’s analysis that the Trust is an asset of S.A. and that MVHC is entitled, pursuant to the provisions of the Assistance Application, to the further information it requested concerning the Trust to assist it in determining whether to provide rental assistance.  MVHC operates a subsidy program for persons in need. The Additional Rent Assistance program is discretionary based on a consideration of factors including financial factors and public housing needs. MVHC is entitled to know the particulars of the Trust so it can properly weigh S.A.’s rent assistance application against other eligible candidates. MVHC is entitled to know the respective financial positions of all applicants in determining how to spend its limited funds.  I find MVHC is entitled to require S.A., if she wishes to seek a rental subsidy, to provide the information requested regarding the Trust. This includes a statement showing the current balance of the trust fund along with details of all disbursements made since it was established. Because S.A. has refused to provide the requested information, her application is incomplete. As set out in the Assistance Application, MVHC will not process incomplete forms. Only when S.A. provides the requested information will MVHC have to decide whether to continue to extend her rental assistance.
Creating a discretionary trust for a beneficiary with disabilities in British Columbia is still a good way to provide for the beneficiary without affecting the provincial Persons with Disabilities Benefits, but may affect eligibility for other types of assistance.