Special Needs Trust (Supplemental Care Trust)

THIS IRREVOCABLE TRUST AGREEMENT is made and entered into this (day of month, year), by (name) and (name), Parents of hereinafter referred to as "Grantors," and (name) and (name) as Trustees, hereinafter referred to as "Trustees" or "Co-Trustees.”

WHEREAS, the establishment of this Trust is for the sole purpose of receiving settlement proceeds from a personal injury lawsuit filed on behalf of (name), (name of court), of (name of town/city/etc.), of (County of ________), (State of ______), individually, and as parents and next friends of their minor child, [plaintiff] v. [defendant] of (name of town/city/etc.), of (County of ________), (State of ______), (Docket No. CV_), the Trustees are willing to accept the assets so transferred, and hold them as required by this Trust Agreement.

NOW, THEREFORE, we hereby establish The Trust to be held on the following terms and conditions:

Article I

Irrevocability

1.1 This is a supplemental needs trust for the benefit of (name), who shall hereinafter be known as "the Beneficiary" hereunder. (Name) was born on (date), and is disabled as defined in the Social Security Act, §1614(a)(3) (42 U.S.C. § 1382C(a)(3)).

1.2 The settlement proceeds, together with any income and other accruals received on this corpus, shall constitute the Trust Estate and shall be held, administered and distributed in accordance with the terms of the Trust Agreement herein expressed.

1.3 This Trust is hereby declared to be irrevocable. Except as provided in this paragraph, this Trust shall not at any time, by any person or persons, be amended, altered or modified in any manner. The Trustees are empowered to amend this Trust, without court order, so as to (i) qualify and maintain the Beneficiary's eligibility for benefits under governmental programs, including but not limited to the Medicaid program, the Supplemental Security Income program, and (ii) meet the requirements under OBRA 1993 and the (name of state) State implementing statutes and regulations promulgated pursuant thereto. The Trustees and/or Beneficiary are empowered to amend the non-dispositive provisions of this Trust, such as the Trustees provisions, with court order.

Article 2

Distributions During Beneficiary’s Lifetime

2.1 The purpose of this Trust is to supplement, but not to supplant, whatever benefits and services the Beneficiary may from time to time be eligible to receive by reason of disability, age, or other factors, from federal, state, and local governmental and private resources, such as any private insurance carrier. This Trust was created on behalf of the Beneficiary with the recognition that governmental and charitable programs, in themselves, contain many gaps that, if unaddressed, will greatly reduce the possibility of the Beneficiary's maintaining himself/herself as independent as possible and having the capacity to meet his/her future needs for residential, personal, and other non-medical services.

2.2 The Independent Trustee, as defined in Paragraph 4.2 of Article 4, shall pay or apply for the benefit of the Beneficiary during the Beneficiary's lifetime, such amounts from the principal or income, or both, of the Trust as the Independent Trustee, in the Independent Trustee's absolute discretion, may from time to time deem reasonable or necessary, subject to the intent and purpose of the Trust, as stated in Paragraph 2. 1. Whenever the Independent Trustee has discretion to pay income, or principal to or for the Beneficiary, the Independent Trustee may make the payments at any time, in any amounts and proportions, and for any purposes as the Independent Trustee considers advisable, having regard for the purposes of the Trust described above in Paragraph 2.1. The Independent Trustee may take into account any factors it considers appropriate. Neither the Beneficiary nor any person acting on her behalf as guardian, conservator, guardian ad litem, attorney or agent, shall have any right, power, or authority to compel distribution of the Trust income or principal, in whole or in part, or to require payments from the Trust for any purpose. The Independent Trustee is not required to distribute any net income of this Trust currently and may, in its absolute discretion, accumulate any part or all of the net income of this Trust. Any income of the Trust not distributed shall be added annually to the principal.

2.3 The Independent Trustee is authorized to make disbursements from the Trust Estate to or for the benefit of the Beneficiary in such a way that his/her life will be enriched and made more enjoyable. Supplemental needs include the Beneficiary's needs that are not covered and or not available by any local, state or federal government, or any private agencies, any private insurance carriers covering the Beneficiary or reasonable parental support. The following list identifies, by way of example and not by way of limitation, the kind of supplemental, non-support distributions that are appropriate for the Independent Trustee, in the Independent Trustee's absolute discretion, to make from the Trust Estate to or for the Beneficiary. Such distributions might include: medical, psychological and/or dental diagnostic work and treatment for which there are no public funds otherwise available; medical procedures that are desirable in the Independent Trustee's discretion even though they may not be necessary or lifesaving; an automobile and/or van for the benefit of the Beneficiary, and modification, improvement and maintenance of such vehicle(s); creation, modification and maintenance of handicap accessible home improvements; items by which the Beneficiary's life will be enriched or made more enjoyable, including, but not limited to, furniture, radios, televisions, audio, video and computer equipment, adaptive toys, electronic devices, and the maintenance of the same; supplemental nursing care, rehabilitation services and other care that assistance programs may not or do not otherwise provide, including maintenance and living expenses; differences in the cost between housing and shelter for shared and private rooms in institutional settings; and expenditures for travel, companionship, cultural and educational experiences. On and after Beneficiary's eighteenth birthday, the Trustees shall make reasonable efforts to communicate directly and regularly with the beneficiary to determine the Beneficiary's needs.

2.4 Until the Beneficiary attains eighteen years of age, the Independent Trustee shall obtain court approval for any single distributions to or for the Beneficiary larger than Ten Thousand Dollars ($10,000.00) (excluding payment of income taxes created by the Trust Estate)' and cumulative distributions larger than Forty Thousand Dollars ($40,000.00) (excluding payment of income taxes created by the Trust Estate) in any one calendar year.

2.5 In determining whether the existence of this Trust has the effect of rendering the Beneficiary ineligible for any program of public benefit, the Trustees are hereby granted full and complete discretion to initiate action to render the Beneficiary eligible for any such program or public benefit, including but not limited to the Supplemental Security Income program (SSI), the Medicaid program; the Social Security Disability Insurance program (SSDI), and any additional, similar or successor programs, and from any private source. The Trustees are hereby granted full and complete discretion to initiate either administrative or judicial proceedings, or both, for the purpose of determining eligibility. All costs relating thereto, including reasonable attorney's fees, shall be charged to the Trust. The Trustees may exercise their discretion and defend, at the expense of the Trust, all contests or attacks of any nature against the Trust.

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