§60-175.705. Trust for beneficiary with disability.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

TRUST FOR BENEFICIARY WITH DISABILITY

A. As used in this act:

1. "Beneficiary with a disability" means a beneficiary of a first trust who the special-needs fiduciary believes may qualify for governmental benefits based on disability, whether or not the beneficiary currently receives those benefits or is an individual who has been adjudicated incompetent;

2. "Governmental benefits" means financial aid or services from a state, federal or other public agency;

3. "Special-needs fiduciary" means, with respect to a trust that has a beneficiary with a disability:

a trustee or other fiduciary, other than a settlor,

that has discretion to distribute part or all of the

principal of a first trust to one or more current

beneficiaries,

b. if no trustee or fiduciary has discretion under

subparagraph a of this section, a trustee or other

fiduciary, other than a settlor, that has discretion

to distribute part or all of the income of the first

trust to one or more current beneficiaries, or

c. if no trustee or fiduciary has discretion under

subparagraphs a and b of this section, a trustee or

other fiduciary, other than a settlor, that is

required to distribute part or all of the income or

principal of the first trust to one or more current

beneficiaries; and

4. "Special-needs trust" means a trust the trustee believes would not be considered a resource for purposes of determining whether a beneficiary with a disability is eligible for governmental benefits.

B. A special-needs fiduciary may exercise the decanting power under Section 3 of this act over the principal of a first trust as if the fiduciary had authority to distribute principal to a beneficiary with a disability subject to expanded distributive discretion if:

1. A second trust is a special-needs trust that benefits the beneficiary with a disability; and

2. The special-needs fiduciary determines that exercise of the decanting power will further the purposes of the first trust.

C. In an exercise of the decanting power under this section, the following rules apply:

1. Notwithstanding Section 3 of this act, the interest in the second trust of a beneficiary with a disability may:

a. be a pooled trust as defined by Medicaid law for the

benefit of the beneficiary with a disability under 42

U.S.C., Section 1396p(d)(4)(C), as amended, or

b. contain payback provisions complying with

reimbursement requirements of Medicaid law under 42

U.S.C., Section 1396p(d)(4)(A), as amended; and

2. Except as affected by any change to the interests of the beneficiary with a disability, the second trust, or if there are two or more second trusts, the second trusts in the aggregate, shall comply with Section 3 or 4 of this act with respect to the interest or interests of each other current beneficiary, presumptive remainder beneficiary or successor beneficiary. Added by Laws 2021, c. 268, § 5, eff. Nov. 1, 2021.