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Ontario Disability Support Program (ODSP) Issues

The Ontario Disability Support Program (“ODSP”) is a Ministry of Community and Social Services program that provides financial assistance to people with disabilities over the age of 18 who are in financial need. The benefits paid under ODSP vary depending on the recipient’s shelter costs and the number of people in the family or “benefit unit”. In order for a person with a disability to be eligible for ODSP, he or she must meet the medical eligibility threshold test and the financial testing provisions regarding assets and income as set out in the regulations under the Ontario Disability Support Program Act.

There are several assets and types of income that are excluded from a person’s list of assets and income for the purposes of determining ODSP eligibility. This list includes (but is not limited to): a principal residence, a car, a prepaid funeral, an RDSP (Registered Disability Savings Plan), a person’s interest in a Henson trust or a Disability Expense Trust, compensation for pain and suffering up to a maximum of $100,000 as a result of injury to or the death of a member of the benefit unit, Family Law Act damages, or expenses incurred as a result of injury to or the death of a member of the benefit unit.

Legal advice regarding ODSP is sometimes required, such as in the following situations:

  • Where a person is going to receive an inheritance from a deceased person’s estate and the inheritance was not placed in a Henson trust by the deceased person’s will, if the person has the requisite mental capacity to settle a trust, the person can place up to a maximum of $100,000 in a discretionary trust called a Disability Expense Trust in order to protect his or her ODSP eligibility. If the inheritance is going to be greater than $100,000, there may be other exempt assets that the person wants to convert the funds to in order to maintain ODSP eligibility.
  • Where a person is going to receive a personal injury award or settlement that is more than $100,000, a request for an expansion of the $100,000 exemption can be made to the Director or ODSP.Approval of this request will only be given if the amount exceeding $100,000 is used or will be used for disability or injury related expenses and if appropriate arrangements have been made for the administration of the amount exceeding $100,000.
  • Where a person wants to leave a bequest in his or her will to a disabled person who may be in receipt of ODSP or who may need to apply for ODSP in the future, that person will need legal advice about whether a Henson trust is required in his or her will and other estate planning ideas for disabled beneficiaries.
  • Where a person is acting as the estate trustee of an estate that has disabled beneficiaries, that person may need advice regarding the payments that can be made to those beneficiaries with a view to maintaining ODSP eligibility
  • Where a person is acting as or applying to be a guardian of property for an ODSP benefits recipient, that person may need advice regarding how to manage the person’s assets and income in order to maintain ODSP eligibility
  • Where there is a claim that there was an overpayment of ODSP benefits and a request for repayment has been made by ODSP, the ODSP benefits recipient may want to dispute that claim.