Special Needs Trust 特殊需要信託

What is a trust?

A trust is a legally binding arrangement under which assets of the settlor are transferred to a trustee, who will then administer the trust assets and distribute them to the designated beneficiaries according to the terms of the trust deed, as well as with reference to the intention of the settlor.

Professional trustees with expertise and experience in managing trusts are available in the market, but they invariably charge high fees.

In reality, it is not easy to find a trustworthy trustee who is willing to serve in this role gratuitously, and who is likely to survive both the settlor and the beneficiary. While there are professional trustees, not many people are able to afford the high fees charged by professionals to set up and manage an individual trust tailor made for just one’s own dependent with intellectual disability.

What is a Special Needs Trust?

To overcome the above-mentioned difficulties, some countries have developed the Special Needs Trust. In the Chief Executive’s policy address 2016, the government has announced that the Labour and Welfare Bureau will establish a working group to explore the feasibility of establishing a public trust, with a view to providing affordable services for people with intellectual disability.

The Special Needs Trust is an affordable trust specially designed for people with special needs (including people with intellectually disability). The Special Needs Trust pools together funds contributed by individual participating settlors for management and investment. This allows the sharing of fees and hence lower fees for individual participants. To reduce the fees, such trusts usually only cash but not flats or shares.

How does a caregiver join such a trust?

To participate in such trusts, the caregivers with the help of the trustee and its case manager devises a care plan, which sets out the expenditures needed for the dependent, write a letter of intent that appoints the caregiver to succeed them and explains how the trust fund should be disbursed for the benefit of the dependent and after the dependent passes away, and then transfer an amount of money (a small sum such as about HK$5,000) to set up the trust. They also execute a will to transfer a substantial amount from their estate into the trust on their death, e.g. they may instruct the executor to sell their flat and put the proceeds into the trust fund. Like in an MPF, the amounts designated for each beneficiary will be segregated, although the pooled funds will be invested, usually with a view to preserving the capital.

How does the trust operate?

When the caregivers pass away, the trust will be activated. The trustee will then make periodic distribution to the succeeding caregiver according to the letter of intent and care plan. The trustee’s case manager can make periodic (e.g. twice a year) visits to the dependent to check that the caregiver is looking after the dependent. Upon the dependent’s passing, the trustee will distribute the surplus to any person(s) indicated in the letter of intent. The main advantage of the Special Needs Trust is that financial assets devoted for the dependent are managed by a professional. The trust also allows dependents to participate in the decision-making process of the caregiver if this is set out in the letter of intent.

什麼是信託?

信託是一項具法律約束力的安排,由委託人將自己的資產轉移予受託人,而受託人則會根據信託契約的條款,以及參考委託人的意願,管理資產及向指定受益人分派資產。

市場上有商業信託公司專責為委託人成立及管理信託,但是收費高昂。

什麼是特殊需要信託?

實際上,我們很難找得到可靠、義務、有持續性的受託人。大部分人亦難以承擔商業信託公司/專業人士為智障子女個人量身訂造和管理信託的高昂費用。為了克服上述的困難,一些國家成立了特殊需要信託 。香港政府亦在2016年施政報告中提到勞工及福利局將成立工作小組,探討設立公共信託機構的可行性,以提供可負擔的信託服務。

特殊需要信託是專為特殊需要人士(包括如智障人士)設立而收費相宜的信託, 把不同家長或照顧者設定的資產集中管理和投資,以分擔個別受託人需要承擔的管理費。為了減低管理費,這些信託也只限於管理資金,而不管理股票或物業。

如何參與特殊需要信託?

在參與此類信託時,家長會在受託人及個案經理協助下訂立一個照顧方案及寫下一份意向書。照顧方案列出受益人每月所需的支出,意向書則列出家長希望受託人如何根據照顧方案,運用資產,以及在受益人離世時由誰人獲得剩餘的資產。 訂立好這兩份文件後,家長會轉移一筆較少的款項(如港幣$5,000 ) 以成立信託帳戶,同時訂立遺囑讓財產在家長去世後轉移至信託之內。例如,家長可以指示遺囑執行人出售他生前的住宅,以套換現金至信託。像強積金一樣,每一位受益人的信託金額將會獨立分開記帳,而受託人會利用組合起來的資金投資,以防通脹 。

特殊需要信託如何運作?

每個家長成立的信託會在他們去世時啟動。受託人會根據意向書及照顧方案定期把生活費發放給受益人的照顧者。信託的個案經理可以定期(如每年兩次)探訪受益人,監督和支援照顧者。當受益人去世時,受託人會把剩餘的資金按照意向書分發。

特殊需要信託的主要優點是,有關財產由專業人士管理,但收費合理,讓普羅大眾都可以參加;而且,家長也可以在意向書內列明,要求受託人讓受益人可隨時參與決策 。

Last updated: March 2016

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