Last amended: 27 May 2011
A trustee of a special disability trust [3] (SDT) must meet specific requirements.
More ? [4]
An exemption notice can be given to trustees of a trust established before 20 September 2006 if the trust satisfies certain conditions.
More ? [5]
The trustee must provide the financial statements of the trust as at 30 June of the relevant financial year [3].
More ? [6]
If a trust becomes non-complying it will be assessed under normal trust and company rules.
More ? [7]
The Commission may issue a waiver notice to a non-complying trust for a short time while the non-compliance is rectified.
More ? [8]
The trustee must follow an investment strategy which enables the trust to pay for the reasonable care and accommodation needs of the principal beneficiary.
More ? [9]
The trust must comply with the determination that sets out the limits on discretionary spending for other purposes.
More ? [10]
An audit of the SDT can be requested at any time by the principal beneficiary or other specified people and must be carried out within a reasonable time.
More ? [11]
A trustee of an SDT has obligations to DVA in relation to that trust.
More ? [12]
According to section 52ZZZW of the VEA [31], a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability [3].
Financial year, in relation to a company, means:
Last amended: 9 October 2006
VEA ? [33]
A trustee of the special disability trust [3] (SDT) can be either an individual or a corporation. An individual trustee, or a director of a trustee corporation, must:
Note: A statutory declaration to this effect is required from each of the trustees or directors of the trustee company. A professional trustee may charge the trust usual and proper administration charges.
There must be at least two trustees at all times, except where a professional trustee is appointed. A professional trustee is either a trustee corporation or an Australian legal practitioner within the meaning of the Legal Profession Act 2004.
According to section 52ZZZW of the VEA [31], a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability [3].
An Australian resident is a person who:
Last amended: 9 October 2006
For a trust to be a special disability trust [3] (SDT) the trust must meet certain requirements and the trust deed must contain certain clauses.
From 20 September 2006 until 30 June 2007 an exemption notice can be given to trustees of a trust established before 20 September 2006 if:
The exemption notice must be in writing and contain:
VEA ? [39]
If a trust was established before 20 September 2006 it may not be possible to alter the trust deed to comply with the clauses of the model trust deed that comes into effect from 20 September 2006. A waiver can be given where a trust deed cannot be altered and the trustee provides a statutory declaration that they will comply with the SDT requirements. That is:
Note: However, the waiver can only apply for the period that the trustee continuously complies with the agreed conditions in the statutory declaration.
The waiver notice must be in writing and contain:
According to section 52ZZZW of the VEA [31], a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability [3].
To be eligible to be the principal beneficiary of a special disability trust [3], a person must have a severe disability. A person with a severe disability is:
Last amended: 27 May 2011
VEA ? [44]
The trustee of a special disability trust [3] (SDT) must provide the financial statements of the trust as at 30 June of the relevant financial year [3]. The financial statements must include information which complies with the Australian Accounting Standards, including:
Note: A copy of the trust tax return for the relevant financial year must also be provided.
A statutory declaration must be included confirming that:
The financial statements and statutory declaration must be provided on or before 31 March each year for the previous complete financial year.
Where one of the trustees is a trustee corporation, the financial statements must be prepared in accordance with the regulatory and legislative requirements applying to trustee corporations. Where none of the trustees is a trustee corporation, a person who is a member of CPA Australia, the Institute of Chartered Accountants in Australia, or the National Institute of Accountants must prepare the financial statements. The person preparing the financial statements cannot be an immediate family member.
According to section 52ZZZW of the VEA [31], a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability [3].
Financial year, in relation to a company, means:
According to subsection 5Q(1) [31] of the VEA, for the purposes of the means test concession, a parent or immediate family member includes:
Last amended: 9 October 2006
If the income or capital of the special disability trust [3] (SDT) is used for purposes which make it a non-complying trust, then the trust will be assessed under the normal trust and company rules from the date the trust was deemed by a delegate to be non-complying. Any gifts will lose their concessional treatment from the date that the trust becomes non-complying.
Events which could result in the trust being non-complying include:
According to section 52ZZZW of the VEA [31], a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability [3].
Last amended: 27 May 2011
VEA ? [48]
If a special disability trust [3] (SDT) fails to comply with a requirement, the Commission may issue a waiver notice that maintains the trust's concessional status for a short time while the non-compliance is rectified.
Circumstances when a waiver notice cannot be given
A waiver cannot be given where the purpose requirements are not met because of fraudulent behaviour. In addition for all trusts, regardless of when they were established, a waiver notice cannot be given if any of the following provisions of a SDT are not met:
A waiver notice may be given if the non-compliance relates to:
contravention of a requirement relating to the purpose of the trust, where total expenditure in a financial year is no more than $5,000. Consideration must also be given to the nature of the breach and the number of times a similar event has occurred.
If there is a delay in providing the financial statements of the trust and the delay is not due to the actions of the trustee, a waiver notice can be given for a period of up to three months from 31 March of the relevant year. This can be extended if the circumstances warrant it for an additional three month period, up to a maximum of twelve months.
The waiver notice must be in writing and contain:
According to section 52ZZZW of the VEA [31], a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability [3].
Last amended: 27 May 2011
VEA ? [61]
The trustee must formulate and give effect to an investment strategy the dominant purpose of which is to satisfy and fulfil the primary purpose of the trust, which is to pay for the reasonable care and accommodation needs of the principal beneficiary as determined by the trustee from time to time. Subject to these needs, the investment strategy must have regard to:
Note: As part of the trust's investment strategy, it can purchase real estate for the accommodation, or a right to accommodation, for the principal beneficiary.
Trust deed requirements
Section 52ZZZWC [34] VEA
Veterans' Entitlements (Special Disability Trust — Discretionary Spending) Determination 2011 [62]
Last amended: 27 May 2011
VEA ? [65]
The Commission may determine the value of income and assets that may be applied by a trust, in each financial year, for purposes that primarily benefit the principal beneficiary. These may relate to expenditure by the trust that are for purposes other than the primary purpose, such as for the health, well-being, recreation, independence and social inclusion. The expenditure applied cannot exceed the value that is specified in the determination for that tax year. Other purposes such as the maintenance and the practical administration of the trust are considered to be ancillary to the primary purpose and are not subject to the expenditure determination.
More ? [66]
Last amended: 9 October 2006
VEA ? [71]
An audit of the special disability trust [3] (SDT) can be requested by the principal beneficiary, an immediate family member [3], the legal guardian, or financial administrator of the principal beneficiary and the Repatriation Commission. An audit can be requested at any time and must be for at least a whole financial year, up to a maximum period of five financial years.
The trustees must, within a reasonable time after receiving a request for an audit, carry out the audit, or if an audit has already been carried out for the relevant period, must give a copy of that audit report to the person making the request.
An audit must include the following information:
According to section 52ZZZW of the VEA [31], a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability [3].
According to subsection 5Q(1) [31] of the VEA, for the purposes of the means test concession, a parent or immediate family member includes:
Last amended: 27 May 2011
A trustee of a special disability trust [3] (SDT) has obligations in relation to that trust. The trustee needs to tell DVA if:
When the trust has finalised its financial statements for the year, a copy must be forwarded to DVA within 14 days (28 days if the trustee receives remote area allowance).
According to section 52ZZZW of the VEA [31], a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability [3].
Links
[1] https://clik.dva.gov.au/user/login?destination=node/16384%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/16530%23comment-form
[3] https://clik.dva.gov.au/%23
[4] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn561
[5] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn562
[6] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn563
[7] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn564
[8] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn565
[9] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn566
[10] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn567
[11] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn568
[12] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn569
[13] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/trustee-requirements
[14] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn561
[15] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/transitional-trusts
[16] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn562
[17] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/reporting-requirements
[18] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn563
[19] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/non-complying-sdt
[20] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn564
[21] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/waiver
[22] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn565
[23] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/investment-rules
[24] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn566
[25] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/expenditure-rules
[26] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn567
[27] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/audit-requirements
[28] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn568
[29] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10319-rules-and-requirements-special-disability-trusts/obligations-relation-special-disability-trusts
[30] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn569
[31] http://clik.dva.gov.au/legislation-library
[32] https://clik.dva.gov.au/user/login?destination=node/16536%23comment-form
[33] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn570
[34] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-vea
[35] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn570
[36] https://clik.dva.gov.au/user/login?destination=node/16486%23comment-form
[37] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn571
[38] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn572
[39] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn573
[40] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn571
[41] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn572
[42] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn573
[43] https://clik.dva.gov.au/user/login?destination=node/16538%23comment-form
[44] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn574
[45] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn574
[46] https://clik.dva.gov.au/user/login?destination=node/16395%23comment-form
[47] https://clik.dva.gov.au/user/login?destination=node/16343%23comment-form
[48] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn575
[49] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn576
[50] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn577
[51] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn578
[52] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn579
[53] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn580
[54] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn575
[55] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn576
[56] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn577
[57] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn578
[58] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn579
[59] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn580
[60] https://clik.dva.gov.au/user/login?destination=node/16545%23comment-form
[61] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn581
[62] https://clik.dva.gov.au/legislation-library
[63] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn581
[64] https://clik.dva.gov.au/user/login?destination=node/16563%23comment-form
[65] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn582
[66] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn583
[67] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn582
[68] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10318-assessment-special-disability-trusts
[69] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn583
[70] https://clik.dva.gov.au/user/login?destination=node/16464%23comment-form
[71] https://clik.dva.gov.au/book/export/html/16384#tgt-cspol_part10_ftn584
[72] https://clik.dva.gov.au/book/export/html/16384#ref-cspol_part10_ftn584
[73] https://clik.dva.gov.au/user/login?destination=node/16529%23comment-form