Special Disability Trusts – avoiding Centrelink deprivation rules


All our 3-Generation Testamentary Trust Wills contain Special Disability Trusts

Special Disability Trusts – useful for only one thing

Special Disability Trusts allow families to give private financial help. But this is only to a ‘disabled’ family member. This is for their care and accommodation. The family member must have a ‘severe’ disability.

Special Disability Trusts are usually a waste of money and time. They only serve one purpose. They stop the Centrelink ‘deprivation rules’ from operating. If you do benefit from this protection from Centrelink then do not waste your money and time setting up a Special Disability Trust (SDT).

Does Australia have a ‘gift tax’?

There is no ‘gift tax’ in Australia. You can always give money to another person. There is no tax on ‘gifts’ in Australia.

Why bother to set up an expensive and difficult to use Special Disability Trust?

The only benefit of a SDT is that both the donor and disabled person avoid the Centrelink ‘deprivation’ rules.

Special Disability Trust in Wills

All Legal Consolidated Barristers & Solicitors 3-Generation Testamentary Trust Wills contain Special Disability Trusts.

Special Disability Trust v other trusts

A ‘trust’ is a legal relationship between a trustee and a beneficiary.

The 12 most common trusts in Australia are:

In a Will:

  1. 3-Generation Testamentary Trust in Wills – to reduce Capital Gains Tax and stamp duty
  2. Super Testamentary Trust in a Will – stops the 32% tax on Super going to adult children
  3. Bankruptcy Trusts in a Will – if a beneficiary is bankrupt
  4. Divorce Protection Trust in a Will – if a child separates
  5. Special Disability Trust

    Not in a Will:

  6. Family Trust
  7. Unit Trust
  8.  Acknowledgement of Trust Deed – ‘AFTER the Trustee buys
  9. Gifting Trust – ‘deathbed declaration’
  10. Declaration of Trust BEFORE you buy – ‘secretly buy
  11. Bare Trust – ‘hide assets you own’
  12. Self-Managed Superannuation Fund – to control your super

How a Special Disability Trust work in Austrlalia

In a SDT, the trustee looks after the trust property. This is for the disabled person.

The trustee is often a parent or a family member. The beneficiary is their disabled relative, often a child or sibling.

special disability trust sdt Australian law firm

For example, the beneficiary is the disabled son Tom, the trustee is his mother, Anne. Anne looks after the trust property for Tom. Anne is the ‘legal’ owner. Tom is the ‘beneficial’ owner.

When SDTs started in 2006 you could gift up to $500,000 into the SDT. This maximum amount increases by the inflation rate each year.

You could put more money into the SDT. But, anything over the maximum amount is, of course, subject to the Centrelink Deprivation gifting rules. Which kind of defeats the purspose. The only reason you would lock up wealth in a SDT is to avoid the deprivation rules.

Family members escape the Centrelink’s deprivation rules and asset testing. This is when they put money into a Special Disability Trust. But this is only for the amoutn of money you put into the SDT.

But what are the Deprivation gifting rules? And why do they matter?

Centrelink Deprivation Rules for Special Disability Trusts

For example, Anne (mum) wants to get Centrelink benefits. But the Centrelink’s benefits are means-tested. Anne has too much money. And, therefore, she cannot get the pension.

Anne has, say $700k over the amount of money she is allowed to have to get the pension.

Anne has to ‘get rid of’ $700k before she is eligible for the pension. She hands $700k to one of her children. ALERT: she is still taken to have that $700k in her name. This is for the next 3 years. This is called the Centrelink deprivation gifting rules. In other words, it is 3 years before Anne is eligible to get the pension.

The gifting rules do not prevent Anne from making a gift to another person. There is no tax on gifts. And there is no tax when mum forgives a debt. Rather, the deprivation rules cap the amount that a gift reduces Anne’s assessable assets for means-testing.

There are two gifting limits applying to a single person (or to the combined amounts gifted by a couple):

  • Up to $10,000 each financial year; and
  • A limit of $30,000 over a five financial year rolling period.

The $10k and $30k limits apply together. That is, although Anne can continue to gift assets of up to $10k per financial year without penalty, she needs to take care not to exceed the gifting free limit of $30k. This is over a rolling five-year period.

Again, she can gift more money. But under the deprivation rules, she is deemed to still have that money for the next 3 years.

Disabled dad has $9m, two children and no Will – Statutory Will to the rescue

Special Disability Trusts escape the Centrelink Deprivation rules

Instead, pensioner Anne gifts the $700k into an SDT for her severely disabled son Tom. She:

  1. is deemed IMMEDIATELY to no longer have the money (no waiting 3 years)
  2. does not have to wait 3 years and be treated as still having the money
  3. also, Tom is NOT means-tested for Social Security for the assets in the SDT.

Also, income from the SDT is excluded from the Centrelink income test. Also, deeming does not apply to the assets within the SDT.

Tom’s home, if held in the SDT, is excluded from means-testing.

Obviously, Anne cannot gift the money directly to Tom. The money has to be locked away in a Special Disability Trust. This is to avoid the Centrelink Deprivation giving rules.

Free training video on protecting vulnerable children

Social Security requirements to avoid deprivation rules – using Special Disability Trusts

A Special Disability Trust is a waste of time. This is unless the donor or disabled person escapes the deprivation rules. You often hear that the SDT provides ‘peace of mind’ and other meaningless cliches. No Centrelink deprivation advantage? Then there are cheaper, better, less restrictive, trusts to achieve ‘peace of mind’ for a disabled person.

How to avoid the Social Security deprivation rules using Special Disability Trusts:

  1. The primary purpose of the SDT is ‘reasonable care and accommodation’ of the disabled person.
  2. SDT may have other purposes. But they are minor (e.g. ancillary) to the primary purpose.
  3. SDT has only one person – being the disabled person (principal beneficiary).
  4. Section 1209M Social Security Act 1991 (Cth) ‘severe disability’:
    1. 16 or over:
      • suffers an impairment that qualifies the disabled person for a disability support pension or equivalent
      • meets the care conditions
      • unable to work for more than seven hours per week for the minimum wage
    2. under 16:
      • doctor certifies that the disabled person requires personal care for six months or more. And that a similar or increased level of care is required in the future.
  5. A special type of ATO and Centrelink complying trust deed (a ‘normal’ trust deed doesn’t work).
  6. Independent trustee or more than one trustee.
  7. Investment Restrictions.
  8. Annual financial statements.
  9. Independent audits, if required.

Are gifts to clients tax-deductible for accountants and financial planners?

Special Disability Trusts require a doctor’s report

In our experience, to assess a person’s eligibility for Disability Support Pension, Centrelink requires a report. This is from the person’s doctor or specialist about their disability, injury or illness. Centrelink may also require the person to undergo a Job Capacity Assessment. Can the person work? How much work can they do? How much help is needed to find and keep a job?

Centrelink does not make it easy for you, the Donor, or your disabled family member. Is it worth the effort? Rarely.

Disabled dad has $9m, two children and no Will – Statutory Will to the rescue

Assets test assessment vs Special Disability Trusts

For a Special Disability Trust, the disabled person is the only ‘attributed stakeholder’.

For the disabled person, all assessable trust assets up to the concessional asset value limit are exempt from the social security assets test. The concessional asset value limit was initially set at $500,000 on 20 September 2006. It is indexed on 1 July each year to the Consumer Price Index (CPI).

Any limit on the amount of money in an Special Disability Trust?

There is no limit on the value of assets in a special disability trust.

1. But, any money donated over the ‘concessional asset value limit’ suffers the deprivation rules for the person making the gift into the SDT. (To put in more money would be silly.)

2. And also when the SDT goes over the ‘concessional asset value limit’ the disabled person suffers Centrelink means testing (capital and income) on the excess amount.

So here is another reason why an SDT is often a waste of time:

  • If the disabled person has, say, $2m in their SDT then they are probably over the limit for Centrelink benefits anyway.
  • Or, if they have say $2m in assets outside of the SDT then they are not going to get Centrelink anyway. So what was the point?

The 3 purposes of a Special Disability Trusts?

In our view, the restrictions on what you can spend the SDT money on are draconian and unfair. The SDT can only pay for ‘reasonable care and accommodation’?

1. ‘Reasonable Care‘ in a Special Disability Trust:

    • arises as a result of the beneficiary’s disability;
    • medical and dental costs. (This includes private health fund membership, ambulance cover, medicines, surgery, specialist and GP services and daily care fees);
    • expenses closely tied to their disability, including a modified car, sleeping and sensory aids and specialised food.

2. ‘Reasonable Accommodation‘ in a Special Disability Trust:

    • arises as a result of the beneficiary’s disability, or
    • the lease or purchase of a property for the beneficiary’s accommodation needs, or
    • is for the payment of rates, taxes or maintenance of property that is owned by the SDT. But it is used for their accommodation, or leased at market value and the rent is used for their benefit

Sadly, the SDT cannot pay family members for giving care or to purchase or lease property from a family member.

3. Discretionary spending in a Special Disability Trust

There is a small concession to the terrible restrictive rules above. The SDT spends a small amount of money each financial year on discretionary items. These are not related to the beneficiary’s care and accommodation. This is provided it is for the benefit of the disabled person. Discretionary spending includes the disabled person’s health, well-being, recreation, independence and social inclusion.

Since 1 July 2011, the amount that can be spent in a financial year on discretionary items is indexed annually.

The amount of discretionary spending was initially set at $10,000 on 1 January 2011. It is indexed on 1 July each year to increases in the Consumer Price Index (CPI).

Benefits of a Special Disability Trust

  1. Future: Ensure that the ongoing needs of a disabled person continue, especially when the parents or a primary carer dies.
  2. Protects: The SDT’s trustee is legally obliged to safeguard and hold the assets for the benefit of the disabled person.
  3. Social security: A gifting concession up to the current indexed amount for:
    • eligible family members of the disabled person; and
    • an assets test assessment exemption for the disabled person.
  4. Tax: SDT’s net income taxed at the disabled person’s tax rates and Capital Gains Tax exemptions.

However, points 1, 2 and 4 are not peculiar to an SDT. Cannot take advantage of point 3? Then there are better trusts to hold the money for the disabled person.

Alternatives structures to a Special Disability Trust

Special Disability Trusts are expensive and restrictive. They only serve one purpose to avoid the $10,000 annual gifting rules for Centrelink. Getting no benefit from the deprivation rules? Then talk with your accountant and financial adviser about a better structure. Consider:

Donor in Special Disability Trust avoids Centrelink deprivation rules

Only ‘immediate family members’ avoid the gifting concessions. Immediate family members include:

  1. parents (including adoptive and step-parents)
  2. legal guardians
  3. grandparents
  4. brothers and sisters (including adoptive, step and half-siblings)

The disabled person or their partner can only make use of the gifting concessions under limited circumstances. This is where the gifted asset is received under a Will. Every 3-Generation Testamentary Trust Will that you build on our website automatically allows your executors to establish Special Disability Trusts if required. This is for your children, grandchildren and great-grandchildren. It is for any beneficiary that is severely disabled.

Since 20 September 2006, families may establish a Special Disability Trust. It attracts social security means test concessions for both the disabled person and the donor. The $500,000 limit (as indexed since 2006) applies to all family members combined.

The gifting concessions only apply to ‘immediate’ family members. These are persons who are of Age Pension age or Service Pension age. Plus they receive a social security pension. (Or receive a pension after making the gift.) The concession does not apply to a person receiving certain other income support payments such as Newstart Allowance.

Capital gains or losses arising from assets gifted directly to an SDT for no consideration are disregarded for tax purposes. The exemption also applies to assets passing from a deceased estate to an SDT.

Capital Gains Tax in a Special Disability Trust

SDT’s get the capital gains tax (CGT) main residence exemption. This is when you hold the disabled person’s home in the SDT. The 2-year (often 3 years) after death exemption also applies.

Retain income in the SDT and just pay normal marginal tax?

SDTs are taxed like other Australian trusts, such as family trusts. But what if you don’t distribute all the income to the disabled person? What if you retain some of the income in the SDT? Unexpended income is taxed at the disabled person’s marginal tax rate. For trusts this is uncommon. It is beneficial to the disabled person.

Normally undistributed income in a trust is taxed at the highest marginal tax rate. See 99A Income Tax Assessment Act 1936. In other words, normally, you must distribute all income out of your trust. Otherwise, the retained income is taxed at the highest marginal human tax rate.

In the SDT you do not have to pay out the income. Instead, you can retain the income in the Special Disability Trust.

But if that is your only benefit for the SDT, is it worth the effort? Remember, the retained income is still taxable. The disabled person still puts the retained income onto their tax return. It is not ‘free’ money.

Setting up a Special Disability Trust in your will

A Special Disability Trust is available in your Will if you have a 3-Generation Testamentary Trust Will.

All Legal Consolidated 3-Generation Testamentary Trust Wills contain Special Disability Trusts. They sit in the Will dormant. After your death, they can be turned on and off as your beneficiaries, children, grandchildren and great-grandchildren require. However, they are only one of the many benefits of a 3-Generation Testamentary Trust Will.

Centrelink attacks grandparents mentioned in Family Trusts

See this article on Family Trusts vs Grandparents

11 free Centrelink articles to help you work with Centrelink

These free resources empower you to deal with Centrelink:Centrelink and trust deeds Legal Consolidated

  1. Centrelink attacking innocent grandparents – mum helped children 20 years ago and now suffers
  2. Wind up Family Trusts
  3. Replacing the Appointor in a Family Trust – succession planning for a person wanting Centrelink
  4. Company to replace pensioner as trustee of a Family Trust
  5. Wind up Unit Trusts
  6. Can beneficiaries disclaim a trust distribution?
  7. Abandon a gift in a Will to keep the pension?
  8. What to do before the end of year financial year – to appease Centrelink
  9. Centrelink compliant Power of Attorney – keeps your family in control, not Centrelink
  10. 3-Generation Testamentary Trust Wills  – beneficiaries retain Centrelink benefits in your Will
  11. Special Disability Trust –  to avoid Centrelink deprivation rules

Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm

Mobile: 0477 796 959
National: 1800 141 612
Email: [email protected]
Online: https://www.legalconsolidated.com.au/

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