The Supreme Court of Canada (SCC) released their decision finding that Henson Trusts are not considered assets when determining eligibility for a rent subsidy.

Henson trusts, often relied upon by many persons with disabilities, allow family members to put aside money for persons with disabilities while preserving their entitlements for social assistance. The money received from these trusts could help these individuals pay for disability-related expenses or items that are not covered by social assistance programs. Fundamentally, social assistance programs work together with Henson Trusts to cover important costs that the programs may not.

Lower courts have often upheld that the status of a Henson Trust is an asset for the purpose of receipt of means-tested social assistance benefits. This is the first time the Supreme Court has addressed this issue. The impact of this case provides a clear legal test relating to the purpose of a Henson trust, and how such trusts should be treated under the plain language definition of the term “asset”. The SCC held that a person with a disability cannot be treated as having been enriched by these trust arrangements as they do not have an enforceable right to receive any of the trusts income or capital.

It is important to note that this decision should not be interpreted to suggest that all Henson Trusts could never be treated as an asset for any purpose whatsoever. Rather, the benefits from the trust will vary from program to program and will depend, among others, the eligibility criteria of the programs.

You can read the decision in full here (link).

You can read more on Henson Trusts here (link).