Special needs trusts are vital for the support of people with disabilities. They are not perfect, however, as it can be difficult for a beneficiary to change the trustee.
Special needs trusts offer substantial benefits for those people who have them.
They allow a beneficiary to have access to income, while remaining eligible for government benefits.
However, in exchange for that benefit, the trusts are very restricted. They must be created in hyper-specific ways and the beneficiary’s ability to control the assets in the trust is limited.
Technically, the beneficiary cannot distribute or manage the trust assets.
That means a third-party trustee is needed.
If the trustee is not up to the job or intentionally mishandles the trust, it can be difficult for the beneficiary to change the trustee, as the Wills, Trusts & Estates Prof Blog discusses in “Can the Beneficiary of a Special Needs Trust Change the Trustee?”
A beneficiary of a special needs trust can petition a court to have the trustee removed and another appointed. However, this can be a difficult process and many people with special needs are not able to handle the complex legal issues of filing a petition with the court, let alone arguing for a trustee change.
This could potentially stick a beneficiary with a bad trustee and no recourse.
It is, therefore, important that special needs trusts be drafted with this problem in mind.
Trustees must be chosen carefully and, in cases where the beneficiary is of diminished capacity, it should be clear on who else can petition to change the trustee.
Reference: Wills, Trusts & Estates Prof Blog (Sep. 27, 2017) “Can the Beneficiary of a Special Needs Trust Change the Trustee?”
