The LCO’s Project on Capacity and Legal Representation for the Federal RDSP

The LCO’s Project on Capacity and Legal Representation for the Federal RDSP2017-03-03T18:30:49+00:00

Purpose of the Project

The Government of Ontario requested that the LCO undertake a review of how adults with disability might be better enabled to participate in the Registered Disability Savings Plan (RDSP). The RDSP is a savings vehicle created by the federal government to assist persons with disability with long-term financial security. Under the Income Tax Act (ITA), parents can open an RDSP and decide the plan terms for a child as the “plan holder”. Adult beneficiaries may also do so for themselves. However, where an adult is not legally capable of entering into a contract with a financial institution, another person must be the plan holder.

The ITA requires that a guardian, attorney or other legally authorized person to serve as the plan holder be appointed under provincial laws where required. In Ontario, the Substitute Decisions Act, 1992 (SDA) governs the appointment of guardians and attorneys for property management. However, adults with disability and their family and friends have expressed concern with the requirements of the SDA as they relate to appointing a plan holder for the RDSP, including associated time and costs.

The federal government has put in place a temporary measure to permit a parent, spouse or common-law partner to be a plan holder through a streamlined process. However, it has asked the provinces and territories to consider an appropriate long-term solution for their jurisdictions. The purpose of the LCO`s project was to recommend a streamlined process to appoint an “RDSP legal representative” for beneficiaries that could provide an accessible alternative to Ontario’s current framework. 

The LCO Board of Governors approved the final report for the project in June 2014.

 

How We Carried Out the Project

The LCO’s project on the RDSP drew on work in two prior projects in which we have released final reports, A Framework for the Law as It Affects Older Adults and A Framework for the Law as It Affects Persons with Disabilities. The LCO’s RDSP project also benefited from the work being carried out in our larger, ongoing Legal Capacity, Decision-Making and Guardianship project.

The project was delivered in the following phases:

  • The LCO Board of Governors approved the project in April 2013.
  • Beginning in May 2013, the LCO conducted preliminary research and consultations to identify the scope of the project.
  • In June 2013, the LCO formed an ad hoc Advisory Group for the project made up of representatives of provincial and federal governments, legal clinics, the trusts and estates bar, community organizations, a research centre and financial institutions.
  • In September 2013, the LCO released a document summarizing the scope of the project.
  • In December 2013, we released a discussion paper addressing several options for reform and launched the consultation phase for the project.
  • In February 2014, we held focus groups across Ontario with key stakeholders, including self-advocates and their family and friends, community organizations, legal professionals and financial institutions.
  • The LCO’s consultations also included interviews with almost 50 individuals and organizations and the receipt of written submissions from members of the public.
  • In November 2014, we released the final report, which incorporates the feedback we received throughout the project phases.


What Do We Recommend?

  • The creation of a streamlined process that would enable adults to personally appoint an RDSP legal representative where there are concerns about their legal capacity to enter into a contract with a financial institution.
  • The personal appointment be similar to a power of attorney but specifically limited to authorizing a person to open and manage funds while they remain in an RDSP.
  • Less stringent criteria to grant the personal appointment than the SDA requirements to grant a power of attorney for property.
  • We also make detailed recommendations concerning safeguards against financial abuse, the role and responsibilities of the RDSP legal representative, and who may be eligible to be an RDSP legal representative, among other matters.