A Comparative Study of Trusts for People with Disabilities

• Main Authors: Kuan-Ying Chen, 陳冠穎
• Other Authors: Sieh-Chuen Huang
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/x5rm46

碩士 === 國立臺灣大學 === 科際整合法律學研究所 === 105 === Trust is a flexible legal arrangement with many functions, offering good solutions to social issues. This paper examines the trust law and practices for people with disabilities of the UK, the US, Taiwan, and several neighboring jurisdictions in East Asia. The paper then points out the difficulties in practice of Taiwanese trust law. By comparing the similarities and differences of trust law and practices among jurisdictions mentioned above, as well as analyzing the characteristics of each legal system, the paper eventually comes up with suggestions and solutions to improve the trust law and practices for people with disabilities of Taiwan. Firstly, the UK has a Public Trustee Office, providing trusts and estates services for minors and people with disabilities who are lack of competence in property management and cannot find a suitable trustee. Some other Commonwealth jurisdictions also have their own public trustee. On the contrary, there are various trust services offered by private sector or NPOs in the US. Therefore, American families often set up a Special Needs Trust (Supplemental Needs Trust) for the benefit of their loved one with disability. They can choose a trustee among banks, trust companies, attorneys, CPAs, as well as NPOs (pooled special needs trust). Secondly, the government of Singapore set up a state-owned organization called Special Needs Trust Company (SNTC), providing "affordable" trust services for people with disabilities. Though both offered by government, the difference between Public Trustee of UK and SNTC of Singapore is that the latter combines trust with a "care plan". To draft a care plan, parents work closely with a "case manager" of SNTC, who is responsible for supervising the care received by person with disability. On the other hand, The Autism Society of Korea, an NPO, creates a Trust Scheme for people with developmental disabilities in South Korea. The Society itself acts as a trustee, which has an advantage of being a social service professional, knowing the needs of the beneficiaries very well. The trust scheme of The Society is to some degree similar to a pooled Special Needs Trust in the US, since both of the trustees are NPOs. Moreover, a survey conducted by the University of Hong Kong in 2016 reveals that there is a strong demand for an affordable government-run Special Needs Trust in Hong Kong for people with intellectual disability. Hence, the government of Hong Kong is now considering setting up a public trust company like SNTC of Singapore. Lastly, by passing the "implementation act", Taiwan recognizes the domestic legal effects of rights as provided for in the UN CRPD. It is therefore necessary to scrutinize domestic legal environment concerning rights protection of people with disabilities, including civil and commercial law. The paper argues that the legal practices of trust for people with disabilities in Taiwan have faced some difficulties. Many families who have member with disability, especially an individual lack of competence in property management, do not know the benefits or have few incentives to establish a trust, which can in fact keep financial security of their loved one and manage their property professionally. Since the size of asset and annual managing fee set by trust banks are relatively low, the paper argues that the difficulties result from the traditional mindset of keeping money on hand, insufficient safeguard from the government, and main concern of long term care (rather than pure financial affairs). Besides overall promotion of trust, the paper suggests that the social affairs authorities in Taiwan should involve in the special needs trusts within the necessary range, especially setting up a "connection mechanism" to supervise the trustee periodically. In addition, trust banks can try to cooperate with social groups to provide innovative services integrating care plan program. In conclusion, it’s essential to build up a trust system that respects the self-determination of people with disabilities while at the same time actively provides necessary assistance for them to fulfill their rights.