This document is taken from In the Matter Morales, Supreme Court, Kings County, Index No. 102039/94. (July 25, 1995) LEONE, J. [1995 WL 469523 (N.Y.) and NYLJ, July 28, 1995, p. 25 col. 1]
This TRUST AGREEMENT made this __ day of (MONTH), 199_, between (NAME), as Guardian of the property of (NAME), as "Grantor", and (NAME), as "Trustee", is established pursuant to an Order of the Supreme Court of the State of New York, (CNTY) County. The "Grantor" (NAME) currently resides at (ADDRESS). The "Trustee" (NAME) currently resides at (ADDRESS).
1.0 Trust Name : The Trust shall be known as the (NAME) Supplemental Needs Trust.
1.1 Purpose of Trust : The "Beneficiary" of the Trust is (NAME). The purpose of the Trust is that the Trust's assets be used to supplement, not supplant, impair or diminish, any benefits or assistance of any Federal, State, County, City, or other governmental entity for which the Beneficiary may otherwise be eligible or which the Beneficiary may be receiving. The Trust is intended to conform with New York State > EPTL 7-1.12.
1.2 Declaration of Irrevocability : The Trust shall be irrevocable and may not at any time be altered, amended or revoked without Court approval.
1.3 EPTL 7-1.6 : EPTL 7-1.6 or any successor statute, or any similar statute of any jurisdiction, shall not be applied by any court having jurisdiction of an inter vivos or testamentary trust to compel, against the Trustees' discretion, the payment or application of the trust principal to or for the benefit of (BENEFICIARY), or any beneficiary for any reason whatsoever.
2.0 Administration of Trust During Lifetime of Beneficiary : The property shall be held in trust for the Beneficiary, and the Trustee shall collect income and, after deducting all charges and expenses attributed thereto, shall apply for the benefit of the Beneficiary, so much of the income and principal (even to the extent of the whole) as the Trustee deems advisable in his sole and absolute discretion subject to the limitations set forth below. The Trustee shall add the balance of net income not paid or applied to the principal of the Trust.
2.1 Consistent with the Trust's purpose, before expending any amounts from the net income and/or principal of this Trust, the Trustee shall consider the availability of all benefits from government or private assistance programs for which the Beneficiary may be eligible. The Trustee, where appropriate and to the extent possible, shall endeavor to maximize the collection and facilitate the distribution of these benefits for the benefit of the Beneficiary.
2.2 None of the income or principal of this Trust shall be applied in such a manner as to supplant, impair or diminish any governmental benefits or assistance for which the Beneficiary may be eligible or which the Beneficiary may be receiving.
2.3 The Beneficiary does not have the power to assign, encumber, direct, distribute, or authorize distributions from this Trust.
2.4 Notwithstanding the above provisions, the Trustee may make distributions to meet the Beneficiary's need for food, clothing, shelter, health care, or other personal needs, even if those distributions will impair or diminish the Beneficiary's receipt or eligibility for government benefits or assistance only if the Trustee determines that the distributions will better meet the Beneficiary's needs, and it is in the Beneficiary's best interests, notwithstanding the consequent effect on the Beneficiary's eligibility for, or receipt of benefits.
2.5 However, if the mere existence of this authority to make distributions will result in a reduction or loss of the Beneficiary's entitlement program benefits, regardless of whether the Trustee actually exercises this discretion, the preceding paragraph (2.4) shall be null and void and the Trustee's authority to make these distributions shall terminate and the Trustee's authority to make distributions shall be limited to purchasing supplemental goods and services in a manner that will not adversely affect the Beneficiary's government benefits.
2.6 Additions to Income and Principal : With the Trustee's consent, any person may, at any time, from time to time, by Court order, assignment, gift, transfer, deed or will, provide income or add to the principal of the Trust created herein, and any property so added shall be held, administered, and distributed under the terms of this Trust. The Trustee shall execute documents necessary to accept additional contributions to the Trust and shall designate the additions on an amended Schedule A of this Trust.
3.0 Disposition of Trust on Death of Beneficiary : The Trust shall terminate upon the death of (BENEFICIARY) and the Trustee shall distribute any principal and accumulated interest that then remains in the Trust as follows:
3.1 The New York State Department of Social Services, or other appropriate Medicaid entity within New York State shall be reimbursed for the total Medical Assistance provided to (BENEFICIARY) during his lifetime, as consistent with Federal and State Law. If (BENEFICIARY) received Medicaid in more than one State, then the amount distributed to each State shall be based on each State's proportionate share of the total amount of Medicaid benefits paid by all States on the behalf of the Beneficiary.
3.2 All remaining principal and accumulated income shall be paid to the legal representative of the Estate of the Beneficiary.
4.0 Trustee : (NAME) is appointed Trustee of this Trust. If, for any reason, (TRUSTEE) is unable to or unwilling to serve as Trustee, then (NAME) shall serve as Successor Trustee, subject to the approval of the Supreme Court, (CNTY) County.
4.1 Consent of Trustee : A Trustee shall file with the Clerk of the Court, (CNTY) County, a "Consent to Act" as Trustee, Oath and Designation, duly acknowledged.
4.2 Bond : The Trustee shall be required to execute and file a bond and comply with all applicable law, as determined by the Supreme Court, (CNTY) County.
4.3 Resignation : A Trustee may resign by giving written notice, a signed and acknowledged instrument, delivered to (i) the Supreme Court, (CNTY) County; (ii) the Guardian of the Beneficiary, if any; and (iii) the Beneficiary. The Trustee's resignation is subject to approval of the Supreme Court, (CNTY) County.
4.4 Discharge and Final Accounting of Trustee : No Trustee shall be discharged and released from office and bond, except upon filing a Final Accounting in the form and manner required by § 81.33 of the Mental Hygiene Law and obtaining judicial approval of same.
4.5 Annual Accounting : The Trustee shall file during the month of May in the Office of the Clerk of the County of (CNTY), an annual report in the form and manner required by § 81.31 of the Mental Hygiene Law. Said annual accountings shall be examined in the manner required by § 81.32 of the Mental Hygiene Law.
4.6 Continuing Jurisdiction : The Court shall have continuing jurisdiction over the performance of the duties of Trustee, the interpretation, administration, and operation of this Trust, the appointment of a successor Trustee and all other related matters.
4.7 Powers of Trustee : In addition to any powers which may be conferred upon the Trustee under the law of the State of New York in effect during the life of this Trust, the Trustee shall have all those discretionary powers mentioned in EPTL 11-1.1 et seq., or any successor statute or statutes governing the discretion of a Trustee, so as to confer upon the Trustee the broadest possible powers available for the management of the Trust assets. In the event that the Trustee wishes to exercise powers beyond the express and implied powers of EPTL article 11, the Trustee shall seek and must obtain judicial approval.
4.8 Appointment of a Successor Trustee : Appointment of a successor Trustee not named in this Trust shall be upon application to the Court.
4.9 Compensation of Trustee : A Trustee shall be entitled to such compensation as may be allowable under the laws of the State of New York. In addition, the Trustee shall be entitled to be reimbursed for reasonable expenses incurred by the Trustee in the administration of this Trust.
5.0 Miscellaneous Provisions :
5.1 Governing Law : This Trust Agreement shall be interpreted and the administration of the Trust shall be governed by the laws of the State of New York; provided, however, that Federal law shall govern any matter alluded to herein which shall relate to or involve government entitlements such as SSI, Medicaid, and/or other Federal benefit programs.
5.2 Notifications to Social Services District : The Trustee shall provide the required notification to the Social Services District in accordance with the requirements of § 360-4.5 of Title 18 of the Official Regulations of the State Department of Social Services, and any other applicable statutes or regulations, as they may be amended. These regulations currently require notification of the creation or funding of the trust; notification of the death of the beneficiary; and in the case of trusts exceeding $100,000, notification in advance of transactions that substantially deplete the trust principal (as defined in that section).
5.3 Savings Clause : If it is determined that any provision hereof shall in any way violate any applicable law, such determination shall not impair the validity of the remaining provisions of the Trust.
5.4 Usage : In construing this Trust, feminine or neuter pronouns shall be substituted for those of the masculine form and vice versa, and the plural for the singular and vice versa in any case in which the context may require.
5.5 Headings : Any headings or captions in the Trust are for reference only, and shall not expand, limit, change, or affect the meaning of any provision of the Trust.
5.6 Binding Effect : This Trust shall be binding upon the estate, executors, administrators and assigns of the Grantor and any individual Trustee, and upon any Successor Trustee.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written.
Dated:
GRANTOR:
______________________
(NAME) as Guardian of
the Property of (NAME)
Dated:
TRUSTEE:
______________________
(TRUSTEE)
STATE OF NEW YORK
ss.:
COUNTY OF
On this __ day of _________ 199_, before me personally came (GRANTOR), to me known and known to me to be the individual described in and who executed the foregoing Trust Agreement and duly acknowledged to me that s/he executed the same.
_____________
Notary Public
STATE OF NEW YORK
ss:
COUNTY OF
On this __ day of _________ 199_, before me personally came (TRUSTEE), to me known and known to me to be the individual described in and who executed the foregoing Trust Agreement and duly acknowledged to me that s/he executed the same.
_____________
Notary Public
Return to "Courts Add Criteria to Supplemental Needs Trusts"
Last revised June 21 1998
By
David
Goldfarb