The Senate Standing Committee on Banking, Trade, and the House of Commons Standing Committee on Finance (FINA) have been holding hearings on the accessibility issue regarding Registered Disability Savings Plans (RDSPs).

Senator Irving Gerstein, the Chair of the Committee, and the Honourable Kevin Sorenson, P.C., M.P., Minister of State, Finance, explain the issue in their opening statements:

RDSPs provide tax-assisted savings to Canadians with disabilities. To date, more than 65,000 RDSPs have been opened; but, unfortunately, barriers continue to exist for some disabled Canadians…

…

Economic Action Plan 2012 … introduced a temporary measure to allow a spouse, common law partner or parent to establish an RDSP for an adult individual who might not be able to open a plan due to concerns about their ability to enter into a contract. In many 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 have someone named as their guardian, which is a time-consuming process that may have significant repercussions for the individual. This measure will be in place until the end of 2016 to provide provinces and territories time to develop long-term solutions to address RDSP legal representation issues. The government feels that this is the appropriate approach, given that these are matters of provincial and territorial responsibility.

Some provinces and territories have instituted more streamlined processes to allow for the appointment of a trusted person, such as a parent, other relative or friend, to manage resources on behalf of an individual with a disability or have otherwise indicated that their system already provides sufficient flexibility to address these concerns. Other provinces and territories are actively considering options and issues in their respective jurisdictions. The Government of Canada is continuing to encourage provinces and territories not having a streamlined process in place to take action. Mr. Chairman, it is estimated that 500,000 people across Canada are eligible to benefit from RDSPs.

…

They’ve heard from a number of stakeholders, including Laura Watts of the Canadian Centre for Elder Law and Namali Gamage, of Goddard Gamage Stephens LLP. You can read (and watch) most of the submissions to the Senate here: Link to Senate submissions

The Law Commission of Ontario is also researching this issue and considering the creation of a process specifically for the purpose of establishing a legal representative for RDSP beneficiaries. Currently, a guardian or attorney for property can act as a legal representative for an RDSP beneficiary in Ontario. However, as the Minister of Finance pointed out above in his opening statement, the guardianship process in Ontario can be time-consuming, expensive, and requires a declaration that the beneficiary lacks capacity to manage his or her property.

In January of 2014, the LCO released a document that summarizes their December 2013 discussion paper. It provides 5 goals for a new process for naming a legal representative for RDSP beneficiaries:

1. Gives beneficiaries the help that they need with decisions about RDSP money
2. Makes sure that beneficiaries can participate in making decisions about an RDSP, even after a legal representative has been named
3. Protects beneficiaries from legal representatives misusing their powers and financial abuse
4. Is practical, easy to use and affordable
5. Makes legal representatives and other individuals and organizations (such as financial institutions) feel secure about different risks that could affect them

The LCO convened focus group of lawyers practicing in the area of capacity and substitute decision-making to address the recommendations set out in the LCO discussion paper.  Kimberly Whaley and Ameena Sultan of our firm are members of that LCO focus group, which met in February.

You can read more about the LCO’s RDSP Project here: Link to LCO RDSP Project

We trust that as a result of this focus on accessibility, the Ontario Government will take steps ensure that all Ontarians with disabilities have equal access to the RDSP program.