Loud and Clear: A Special Needs Conversation

The Trust Protector as Insurance Policy

by Robert Fleming

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.

Posted: September 21st, 2011 | 1 Comment »

One response to “The Trust Protector as Insurance Policy”

  1. Paul Heckt says:

    This is a really good piece. I’m a Minnesota special needs trust attorney and thoroughly enjoyed this.

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