Protecting a disabled child of full age

In Quebec, over 16% of the population aged 15 and over lives with at least one disability[1]. What mechanisms protect these people?

Few people are aware that when a disabled person reaches the age of majority, he or she is declared an adult and can exercise his or her rights alone. Henceforth, their parents can no longer act as their legal representatives, unless they have been appointed by the court when a protection plan is opened.

The purpose of this system is to protect the incapacitated person. A meeting of relatives, allies or friends is convened to appoint a tutor or curator, depending on the degree of incapacity of the person concerned. The tutor or curator will be subject to the supervision and control of the Public Curator and a tutorship council, generally made up of three people from the disabled person's entourage.

Numerous assistance and support programs

Many parents can be baffled by the sheer number of tasks involved in protecting their child. There are so many forms to fill out and so many steps to take (social assistance, tax credits, opening a bank account, etc.). They don't always know what to do or where to turn. Some even choose to do nothing... For example, tens of thousands of families in Quebec do not claim the tax credit for disabled people, even though they are entitled to it, either because they don't know what to do or because it is so complex. Unfortunately, income tax is often the gateway to other social programs. In so doing, we miss out on a multitude of services and programs available to disabled people. In Quebec, there are 249 specific programs and measures, listed in the Guide des programmes destinés aux personnes handicapées, à leur famille et à leurs proches, published by the Office de la protection des personnes handicapées.

These include programs offering direct services to individuals who provide equipment and technical aids. Others involve the payment of allowances or reimbursements to compensate for expenses incurred in meeting the needs of people living with a disability. Some programs help with transportation, leisure activities or employment integration. Finally, there are also certain tax measures, such as the amount for severe and prolonged impairment of mental or physical functions.

How to protect an adult disabled child

A notary is a good ally to help parents in this process. He or she can analyze the situation to determine the extent to which the child of full age needs protection, and recommend protective mechanisms adapted to the severity of the disability and the child's needs. These mechanisms include

• Adapted will: A testamentary trust allows you to appoint an individual (e.g. spouse, brother, notary, etc.) or a trust company as trustee, who will manage the estate after the parents' death. A trust can provide discretionary powers for the trustee, or impose strict criteria for administration. In particular, the trust can cover services not provided by the state, and give the guardian or curator considerable flexibility. This form of will is also interesting if parents are separated.

• Adapted protection mandate: weoften think about what would happen in the event of death, but what would happen if the parent became incapacitated? Who would take care of the child? The Adapted Protection Mandate enables a parent to extend the powers of the mandatary and provide for the care of the child. Parents can also suggest in a notarial document the names of legal representatives and members of the guardianship council.

• Life annuity:this is a mechanism that enables the disabled person to receive a regular amount for a set period of time - until death in the case of a life annuity, but it can also be temporary - so that they can support themselves. Life annuities offer a number of tax advantages, and are often recommended in cases of mental health problems.

• Registered Disability Savings Plan (RDSP): This savings plan is designed to help parents and others save for the long-term financial security of a person eligible for the disability tax credit. Parents can contribute to an RDSP until the beneficiary reaches age 59.

Your notary can help you determine which of these tools is best for your child, and even act as an intermediary with the organizations and professionals involved (doctor, therapist, etc.).

[1 ] Canadian Disability Survey 2017, Office for Disability Issues.