The Henson Trust: A Complete Guide for Ontario Autism Families

A Henson Trust should be drafted by a lawyer experienced in Ontario disability law and estate planning. The trust document must clearly grant the trustee "absolute and unfettered discretion" over distributions — this specific language is critical for ODSP compliance. Generic trust templates from the internet typically do not contain the precise wording required.

Key decisions during setup include: selecting the trustee (and successor trustees), defining the scope of the trust's investment powers, establishing a mechanism for trustee replacement, and specifying what happens to remaining trust assets when the beneficiary dies (the "remainder" provision).

Costs in Ontario typically range from $2,500 to $5,000 for a will with Henson Trust provisions. Complex situations involving multiple beneficiaries, corporate trustees, or inter vivos trusts may cost more. Some Ontario legal clinics and disability organizations offer reduced-fee estate planning for low-income families.

The most dangerous mistake is language that gives the beneficiary any right to demand distributions. Even a clause stating the trustee "shall provide for the beneficiary's basic needs" can convert the trust into one that ODSP counts as an asset. The discretion must be absolute and unfettered.

Other common errors include: failing to name successor trustees (causing the trust to fall under Public Guardian oversight), not coordinating the trust with RDSP and life insurance beneficiary designations, making trust distributions that duplicate ODSP-covered expenses (which can trigger clawbacks), and not updating the trust when ODSP rules change.

Families should review their Henson Trust provisions every 3-5 years or whenever there is a significant change in ODSP policy, the beneficiary's needs, or the trustee's circumstances.