A. About this Summary
The Ontario government asked the Law Commission of Ontario (LCO) to look at how adults with disability can better participate in the Registered Disability Savings Plan (RDSP).
The LCO has finished projects on the principles to follow in making or putting in place laws that affect persons with disability and older adults. At the moment, we have a large project on Ontario’s laws about capacity, decision-making and guardianship.
The RDSP project is a separate project. We have released a large final report in this project. This paper is a summary of the Final Report. The summary is meant for adults with disability, and their family and friends.
B. The LCO’s RDSP Project
The Income Tax Act says that adults must have capacity to open an RDSP. Guardians and individuals appointed by power of attorney documents (called “attorneys”) can open an RDSP and make decisions about RDSP money for adults who do not have capacity to do it themselves.
However, some people say the rules to name a guardian or attorney are more difficult than they need to be if the only issue is opening an RDSP. The final report for the RDSP project makes suggestions for changes that could be made in Ontario to make the process easier.
What does the LCO’s Final Report say?
The LCO’s Final Report makes suggestions about a simpler process for adults to name someone to open an RDSP and make decisions about money in the RDSP for them.
We call this other person the “RDSP legal representative”.
An adult could name a family member, friend or community organization as an RDSP legal representative.
The Final Report also suggests changes that are important for a simpler process.
*This summary has less information than the Final Report. It does not change anything in the larger Final Report. The Final Report and background information on the project are on our website here: http://www.lco-cdo.org/en/rdsp
*Information about the LCO’s larger project on Legal Capacity, Decision-Making and Guardianship is on our website here: http://www.lco-cdo.org/en/capacity-guardianship
C. Words We Use in the Summary
We try to avoid technical words in this summary. Sometimes, though, we have to use words that have a special meaning when an everyday word does not work.
Here is a list of some words that might be new to you:
Law Commission of Ontario (LCO): The LCO is an independent organization that studies issues and makes recommendations about how the law can be accessible to communities in Ontario.
Attorney: Adults can name any person, called an “attorney”, to make decisions for them in a document, called a “power of attorney”. Although the term “attorney” is used, an attorney named in a power of attorney does not have to be a lawyer.
Beneficiary or RDSP Beneficiary: Beneficiaries are the persons who receive payments from an RDSP. The LCO’s project focuses on adults with disability who are eligible to be an RDSP beneficiary. When we use the words “RDSP beneficiary” or “beneficiary” we mean adults who are already beneficiaries as well as those who could become beneficiaries.
The federal government says who is eligible to be an RDSP beneficiary. Only persons who qualify for the Disability Tax Credit (DTC) are eligible. They must be age 59 or under and resident in Canada when the RDSP is opened.
Capacity: Capacity is about who is able to make decisions for themselves under the law. Every person has unique abilities. Adults may be able to make decisions about some things but not others. Their abilities may also change over time. In this project, we look at decisions that need to be made for RDSPs only.
Common Law: The common law is a type of law that is decided in court judgements.
Financial Institution: RDSPs are offered at financial institutions. A financial institution is a bank, credit union, trust company or other business that offers services to manage money. Only some financial institutions offer RDSPs.
Guardian: Guardians are persons who can make decisions for adults who have been found incapable of making their own decisions.
Office of the Public Guardian and Trustee: The Office of the Public Guardian and Trustee is a government office that protects adults who are alleged or found to be incapable in a number of ways. One of the ways is by managing money for adults who have been found to be incapable and who have no one else who can help them.
Plan Holder: Every RDSP needs a plan holder. Plan holders are the persons who open an RDSP at a financial institution. After opening an RDSP, they may be able to make important decisions about managing money in an RDSP, such as deciding who can make payments into an RDSP and making investment choices. However, plan holders cannot make decisions about money after it comes out of the RDSP.
Power of Attorney: Adults can make a power of attorney document to name another person, called an “attorney”, to make decisions for them.
RDSP Legal Representative: When we write about an “RDSP legal representative” we mean a person or community organization that can open an RDSP for a beneficiary and make decisions about money inside the RDSP. This project is about creating a process in Ontario to name an RDSP legal representative for beneficiaries.
D. What is the RDSP?
The RDSP is a savings plan for persons with disability created by the federal government. An RDSP can be opened at a financial institution, such as a bank or credit union.
Families, friends or anyone else can put money into an RDSP for the beneficiary if they have permission. The federal government will contribute money to the RDSP for eligible beneficiaries. Money in an RDSP can also be invested, so that it can grow over time.
Having money in an RDSP does not mean people are not eligible for most provincial disability and income support programs, such as the Ontario Disability Support Program (ODSP). People on ODSP can take money out of an RDSP without affecting their ODSP benefits. There are also special rules about what happens when money is taken out of an RDSP for income taxes.
*Background on the RDSP is found in the Final Report, Chapter II, “Understanding the Federal RDSP”.
*For detailed information on the RDSP, please see the Canada Revenue Agency (CRA) website “Registered Disability Savings Plan (RDSP)” at www.cra-arc.gc.ca/rdsp/
E. Steps in the Project
The Final Report (and this summary) is the result of research and consultations that the LCO did from May 2013 to June 2014.
Early in the project, we formed an Advisory Group with experts who helped us by reviewing documents, such as the Final Report, and by giving us advice.
We also organized consultations to hear from the public about their concerns and goals. Most of our consultations took place after we released a large discussion paper. The discussion paper reviewed a number of different changes that could be made in Ontario.
For our consultations, we held eight group meetings with adults with disability and their family and friends, community organizations, lawyers and financial institutions. The LCO also held interviews and received written comments from the public.
We considered information from all of our research and consultations when