By Robert B. Fleming, CELA

Planning for the lifelong care of a loved one with special needs is daunting. Even the most carefully constructed special needs trust can’t be expected to account for all contingencies. Appointing a trust protector can provide added security when you’re no longer able to monitor the trust’s management yourself.

Because trust protectors can be given enormous authority, you should pick someone who can be relied on to act as you would. You might give them the power to replace the trustee, alter the terms of distribution, change the state in which the trust is administered, and amend the document itself—even once it has become irrevocable or after your death.

Why might such radical steps become necessary? Perhaps you fear that the bank you’ve appointed trustee might become too bureaucratic or expensive in the future. Government benefits that have played a large role in your financial planning may change significantly. State laws could be amended so that a different location offers more trust-friendly terms.

If your trust protector is so reliable, why not simply name them as trustee instead? Perhaps they don’t happen to be a good money manager, or they have too many other obligations to handle the ongoing demands sometimes placed on a trustee. Perhaps it would change the nature of a valued relationship with the beneficiary. A beloved sister might not want to be placed in the trustee’s position of denying a request – but as trust protector, she could ensure that the trustee made appropriate and sensitive decisions while maintaining her strong bond with her brother.

Establishing a trust protector isn’t always advisable, but if you can identify an appropriate candidate, speak to a special needs attorney about the role such an individual could play in your child’s future. Use of a trust protector can provide additional flexibility for your trust and greater peace of mind for you.

About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.

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