Registered Disability Savings Plan – Legal Representation

Canada’s Budget 2012 introduced a temporary measure to allow a qualifying family member (i.e., a beneficiary’s parent, spouse or common-law partner) to become the plan holder of a Registered Disability Savings Plan (RDSP) for an adult individual who may lack the capacity to enter into a contract. Budget 2012 indicated that this measure would apply until the end of 2016.

This measure was introduced in response to concerns that a number of adults with disabilities have experienced difficulties in establishing an RDSP because their capacity to enter into a contract was in doubt. Questions of appropriate legal representation in these cases are a matter of provincial and territorial responsibility. In some provinces and territories, the only way that an RDSP can be opened in these cases is for the individual to be declared legally incompetent and to have someone named as their legal guardian, a potentially lengthy and expensive process that could have significant repercussions for the individual.

Some provinces and territories have instituted streamlined processes that allow for the appointment of a trusted person to manage resources on behalf of an adult who lacks contractual capacity, or have indicated that their system already provides sufficient flexibility to address this concern.

To give the remaining provinces and territories the opportunity to address the RDSP legal representation issue described above, Budget 2015 proposes to extend the temporary measure introduced in Budget 2012 to apply to the end of 2018. The rules implementing the Budget 2012 measure will not otherwise be changed and a qualifying family member who becomes a plan holder before the end of 2018 can remain the plan holder after 2018.

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