Financial planning

The Henson Trust: A Complete Guide for Ontario Autism Families

The Henson Trust (also called an absolute discretionary trust) is the cornerstone of estate planning for Ontario families with disabled dependants. Named after the 1989 Ontario Divisional Court case Henson v. Ontario, this trust structure allows parents to leave assets for their autistic child without triggering ODSP disqualification. The trustee holds absolute discretion over whether and when to make distributions, which means the trust assets are not treated as the beneficiary's own resources under ODSP rules.

Direct answer

The Henson Trust (also called an absolute discretionary trust) is the cornerstone of estate planning for Ontario families with disabled dependants. Named after the 1989 Ontario Divisional Court case Henson v. Ontario, this trust structure allows parents to leave assets for their autistic child without triggering ODSP disqualification. The trustee holds absolute discretion over whether and when to make distributions, which means the trust assets are not treated as the beneficiary's own resources under ODSP rules.

Henson v. Ontario (Director of Income Maintenance) · Ontario Ministry of Children, Community and Social Services · Verified 2026-05-13

Year Henson Trust established in Ontario law
1989
Supreme Court of Canada (CanLII)

Guide values reviewed .

Guide values reviewed . Program amounts and eligibility can change; confirm them with the administering agency.

Program facts at a glance

Guide values reviewed 2026-05-13

Program facts and sources

Program facts, values, and sources
FactValueSource
ODSP asset limit for individuals$40,000Ontario Ministry of Children, Community and Social Services
Typical setup cost in OntarioNot yet confirmed against the official amountWe are still checking the source for this figure

How a Henson Trust Works

A Henson Trust is typically established within a parent's will and comes into effect upon their death. The key legal feature is absolute discretion: the trustee is not obligated to make any specific distributions to the beneficiary. This discretionary structure means ODSP cannot count the trust assets as belonging to the beneficiary, even if the beneficiary is the sole named beneficiary of the trust.

The trust can pay for a wide range of expenses that improve the beneficiary's quality of life — specialized therapies, recreational activities, technology, travel, home modifications, personal care items, and more. The trustee must exercise their discretion reasonably and in the beneficiary's best interest, but the broad flexibility is what makes Henson Trusts so valuable for autism families.

Inter vivos (living) Henson Trusts can also be established during the parents' lifetime, which allows other family members to contribute and can provide for situations where the child needs support before the parents' death.

Setting Up a Henson Trust in Ontario

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).

Ontario does not publish a standard cost for setting up a Henson Trust. Ask an Ontario disability-estate law firm for a written quote that lists the work and all fees before you hire the firm.

Common Mistakes to Avoid

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, missing a trustee-replacement process, and not coordinating the trust with RDSP and insurance beneficiary designations. If no trustee can act, the trust document and Ontario law decide the next step.

Families should review their Henson Trust after major family, trustee, tax, benefit-rule, or needs changes. Ask an Ontario disability-estate lawyer what review schedule fits the trust.

Evidence and sources

  1. Henson v. Ontario (Director of Income Maintenance)

    1989 CanLII 4151 (ON SC Div Ct) — established absolute discretionary trust doctrine in Ontario

  2. Ontario Ministry of Children, Community and Social Services

    ODSP Policy Directives 4.7 and 5.9 on Henson trusts, trust payments, annual reporting, and approved disability-related items and services

Frequently asked questions

Yes, like any trust, a Henson Trust can be challenged — but they have strong legal backing in Ontario. The 1989 Henson decision and subsequent case law firmly establish that absolute discretionary trusts do not count as the beneficiary's assets for ODSP purposes. The risk of a successful challenge is low if the trust is properly drafted.

Choose someone who understands your child's needs, is financially responsible, and is willing to serve long-term. Many families appoint a sibling or close family member, often paired with a professional trust company as co-trustee. The trustee must understand ODSP rules to avoid distributions that could jeopardize benefits.

A Henson Trust may pay for approved disability-related items and services, such as assistive devices, support services, home renovations, or disability-related education. Other payments may count as income, and the beneficiary must report trust payments each year. Ask the beneficiary's ODSP caseworker how a planned payment may affect income support before the trustee makes it.

Where the waitlist stands

Families navigating autism services in Ontario face a documented multi-year wait. Here is the Ontario data — and a two-minute way to push back, when you are ready.

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Lived experience: Parent of autistic child navigating OAP system

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