Planning for Vulnerable Persons: Protecting Loved Ones Through Trust and Estate Planning 

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At Rabideau Law, we’re proud to feature a special contribution from Blair L. Botsford, Principal at Botsford Law, as part of their Well-Squared Estate educational series. 

In this edition, Blair explores an important topic that touches many families: planning for vulnerable persons — including those with disabilities, illnesses, or circumstances requiring long-term financial care and protection. 

Who Is Considered a “Vulnerable Person”? 

Vulnerability can take many forms. It may include a loved one with a physical or mental disability, but it can also extend to those facing illness, addiction, financial instability, or age-related challenges. 

Proper estate planning ensures these individuals are protected through structured management of assets — even when they cannot make legal or financial decisions themselves. 

The Role of Henson Trusts and Disability Planning 

One of the most effective tools in disability planning is the Henson Trust — a fully discretionary trust designed to protect eligibility for Ontario Disability Support Program (ODSP) benefits and help to ensure long-term financial stability. 

Under a Henson Trust: 

  • The beneficiary does not have direct access to the trust’s assets and does not have a vested legal right to the income or capital of the trust. 
  • Trustees have full discretion over distributions, which balances  compliance with ODSP rules and the need to maintain flexibility to meet potentially changing needs of the beneficiary.
  • Remaining funds are distributed as specified by the  trust’s terms upon the beneficiary’s passing.  

These trusts, alongside Registered Disability Savings Plans (RDSPs) and Qualified Disability Trusts (QDTs), help families optimize financial security while preserving essential government benefits. 

“Optimizing the value of these options is an important part of disability planning, and fully discretionary trusts are the staple solution with respect to preserving ODSP benefits.” — Blair L. Botsford 

Capacity and Guardianship: Understanding the Legal Framework 

Planning for vulnerable persons also requires understanding capacity —  such as the legal ability to make decisions about property, care, or one’s estate. 

In Ontario, capacity is task-based, meaning the test for capacity differs depending on the decision. For example, the legal standard for making a Will is higher than that for granting a power of attorney, and both of these are different from capacity to manage property. It should be noted that legal capacity and mental capacity are related but different concepts. 

When a person no longer has capacity and there is no valid power of attorney, guardianship may be required. There are two forms: 

  • Guardianship of Property: Managing financial affairs. 
  • Guardianship of the Person: Overseeing personal care decisions. 

The Public Guardian and Trustee (PGT) acts as guardian of last resort, but family members can apply to take over this role under the Substitute Decisions Act. 

Planning for Minors 

Parents are not automatically the guardians of their children’s property in Ontario. They can only receive up to $35,000 on a child’s behalf from an estate or trust. For larger amounts, court involvement or a Guardianship of Property application is required. 

Establishing a trust for minors in a Will is often the better planning option — allowing funds to be managed responsibly until the child reaches an appropriate age. 

Why This Planning Matters 

Disability and estate planning aren’t just for families managing current challenges — they are essential steps for anyone who wishes to protect loved ones, preserve assets, and ensure peace of mind. 

With the right combination of trusts, Wills, powers of attorney, and guardianship planning, you can ensure your wishes are respected and your beneficiaries are supported with dignity and care. 

About the Contributor: Blair L. Botsford 

Blair Botsford is the founder of Botsford Law, a boutique firm specializing in trusts, estates, and private client services, with over 25 years of experience. 

She is a member of the Society of Trust and Estate Practitioners (STEP) and the Canadian Tax Foundation, among others. 

Learn more about Blair’s work and resources at: botsfordlawtep.com/resources 

Rabideau Law is pleased to share this educational piece from Botsford Law’s Well-Squared Estate Bulletin as part of our ongoing effort to inform clients about key legal issues that impact property ownership and personal planning. 

For more insights and resources, visit: 

www.rabideaulaw.ca | info@rabideaulaw.ca | 519-957-1001 

The “Stand on Guard Doctrine”: Could Canada Adopt a Castle Doctrine for Real Estate?

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At Rabideau Law, we spend much of our time helping clients secure and protect their real estate. For many Canadians, their home is their most important asset—financially and emotionally. But when it comes to defending that property from intruders, Canadian law takes a very different approach than the United States.

In the U.S., most states have adopted the castle doctrine, which presumes that a homeowner is justified in using force, even deadly force, against an unlawful intruder. Canada does not have such a law. But what if Canada introduced its own version, a “Stand on Guard Doctrine”? What would need to change, and how might it affect real estate ownership?


How Canadian Law Currently Treats Defence of Property


Under the Criminal Code of Canada (s.35), a person may use reasonable force to prevent someone from entering or trespassing on their property. However:

  • Deadly force cannot be used solely to protect property. It is only permitted when there is a direct threat to life or safety. 
  • Courts look closely at proportionality. For example, striking a trespasser may be lawful; shooting a trespasser who poses no threat to life would almost certainly not be.
  • There is no formal “duty to retreat,” but whether a homeowner could have safely left is a factor courts consider.

From a real estate law perspective, this means that property rights are not absolute. Ownership gives you the right to exclude others, but not to use unlimited force to do so.

For more information on what a homeowner must do before using force in Canada check out this blog. 


What a “Stand on Guard Doctrine” Would Look Like


If Canada adopted a Stand on Guard Doctrine, the legal landscape for real estate owners would change significantly. Such a doctrine would:

  • Presume force is lawful when used against unlawful intruders in a home or dwelling.
  • Remove proportionality concerns within the home, treating unlawful entry itself as a sufficient trigger for defensive force.
  • Provide civil immunity, preventing intruders (or their estates) from suing property owners for damages.

This would give homeowners stronger legal tools to defend not just their families, but their real estate investment itself.


The Laws That Would Need to Change

For Canada to adopt a Stand on Guard Doctrine, Parliament would need to amend the Criminal Code:

  1. Expand s.35 (Defence of Property).
    Create a statutory presumption that force—including deadly force—is justified against intruders inside a dwelling.
  2. Adjust s.34 (Self-Defence).
    Clarify that proportionality does not apply in the same way when a homeowner is defending their residence.
  3. Add civil immunity protections.
    Enact rules preventing trespassers or their families from suing property owners in civil court for injuries sustained during an unlawful entry.
  4. Clarify scope.
    Decide whether the doctrine would apply only to private dwellings, or also to cottages, farmland, rental properties, or even commercial real estate.


Real Estate Implications

For homeowners and investors, a Stand on Guard Doctrine would:

  • Strengthen property rights, affirming the principle that one’s home is legally protected as a “castle.”
  • Impact landlord–tenant law, raising questions about whether landlords could invoke it in rental units.
  • Shift liability concerns, especially for owners of vacation homes, farmland, or rural properties where police response may be slower.

In other words, it wouldn’t just be a criminal law change—it would ripple across Canada’s real estate system

Conclusion

Canada does not currently have a castle doctrine. Any Canadian equivalent, the Stand on Guard Doctrine, would require rewriting our self-defence and property-defence laws. For now, Canadians can defend their homes, but only within the framework of reasonable, proportional force.

As real estate lawyers, we often remind clients that owning property in Canada means balancing strong property rights with equally strong legal limits. Until Parliament changes the law, Canadians should remember that while their home may feel like a castle, the law does not yet treat it that way.

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