Special trust: looking after those with disability

18 February 2019 - 12:29
By Devlin Brown
Special trusts are a vehicle that allow you to provide support for those who are unable to look after their own affairs.
Image: FILE Special trusts are a vehicle that allow you to provide support for those who are unable to look after their own affairs.

It is not easy to look after someone with a serious disability. Often, people with serious mental illness or a disability that impairs their ability to look after themselves, need family and friends to help them look after their affairs. What's worse, you may panic about what will happen to their financial affairs if you die.

The biggest challenge is often looking after money. If they have money, a policy that may pay out, or maybe you or someone else is providing money, then there is a risk that someone may take advantage of them. 

Luckily there is a way for you to safeguard money that is meant for their benefit, so that their affairs can be taken care of. It is a special trust that the SA Revenue Service (Sars) calls a Type A Special Trust.

Sars defines this trust as one created solely for the benefit of a person or more than one person with a “disability”, as defined in the Income Tax Act, and which makes it impossible for that person or people to manage their own financial matters.

In other words, you can set up this trust with the sole intention of benefiting a disabled person. 

Daniel Baines, a tax consultant at Mazars, wrote in Business Times recently that to set up the trust the person needs to have been diagnosed by a medical professional and to have had the disability for at least a year. The disability must also appear to be irreversible.

Here are some things you should know about these special trusts.

  • The trust has to be set up purely in favour of the disabled person - known as the beneficiary. In other words, there must be no benefit for the trustees (the people who run the trust), just the beneficiary.
  • The trust must be registered with Sars as a type A special trust that enjoys a favourable tax status. Trusts pay income tax at the highest tax rate of 45% making them suitable only for certain situations, but in the case of a special trust, the Income Tax Act provides for the same tax rates that apply to individuals. Marginal tax rates, applied on a sliding scale according to income, apply.
  • Trusts pay tax on the capital gains they make in full but special trusts, like individuals, enjoy an annual exclusion enabling them to limit or avoid this tax. Capital gains tax is a tax on the profit that you make when you sell an asset - typically it is paid on the difference between the base or starting value and the value you sold for, but you may also be able to deduct other costs incurred in acquiring an asset like property. Individuals and special trusts enjoy an annual capital gains tax exclusion that allows you to make R40 000 of capital gains without paying tax each year. Ordinary trusts do not enjoy this annual exclusion. 
  • The founder of the trust does not have to be related to the disabled person.
  • The special trust should have at least three trustees and this means that when or if the founder of the trust dies, the remaining trustees can still able to look after the disabled person. 
  • The founder of the trust may transfer money for the benefit of the disabled person by means of a donation or tax-free loan. Baines cautions that there are instances where there will be donations tax implications for the donor and you should get advice from a properly qualified tax professional on how to avoid or minimise this tax.

If as a disabled person, you put your own capital into a special trust, however, you may avoid paying donations tax. In a non-binding ruling recently, Sars confirmed that a woman who was developing dementia would not be liable for donations tax if she moved her assets into a special trust.