52 THE QUEENS COURIER • HEALTH • JULY 6, 2017 FOR BREAKING NEWS VISIT WWW.QNS.COM
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The Elder Law Minute TM
Who Should Serve as Trustee of an SNT?
A Special Needs Trust (“SNT”) is an
important tool that can be used for preserving
the fi nancial security and lifestyle
of a person with special needs. A properly
draft ed SNT allows the individual with
special needs to benefi t from supplemental
resources while still qualifying for public
benefi ts, such as Supplemental Security
Income (SSI) and Medicaid. In many
instances, a special needs trust is funded
by a parent or guardian for the benefi t of a
child with special needs.
Parents need to decide who to name
as trustee of an SNT. A trustee is tasked
with administering the trust and making
all necessary decisions regarding the SNT,
including distributions. It is common for
a parent to want to be named as trustee of
a special needs trust benefi tting her child,
especially when the parent is the one creating
and funding the trust. Naming herself
as trustee positions the parent to have
complete control over the trust distributions.
Additionally, the parent is typically
the individual most familiar with the
child’s specifi c needs, and the most dedicated
and involved in making sure those
needs are met in the administration of the
trust. Another advantage is that the parent
will usually work without compensation.
While a parent serving as trustee of an
SNT can be benefi cial, a parent serving as
the sole trustee can also confront many
daunting problems involving trust laws
ELDER LAW
and public benefi ts regulations that aff ect
the administration of an SNT. Th e laws
governing trusts vary from state to state,
and public benefi ts rules can also vary in
diff erent parts of the country. Th e federal
regulations are complex, highly technical,
and subject to change. Th e tax laws
involved in trusts and public benefi ts are
also complex and require a great deal of
research, which a parent might not have
the time or resources to undertake.
Th e alternative for most families is a corporate
trustee, the appointment of which
brings with it objectivity and knowledge
in areas such as investments, accounting,
tax and trust laws, and public benefi ts.
Corporate trustees are trained to review
the trust documents under their administration
on a regular basis. Th ey also generally
have systems in place to keep current
with changes in trust and tax law, as well
as public benefi t programs rules.
However, it is not unusual for a parent
to feel uncomfortable ceding so much
responsibility over their child’s welfare to a
seemingly impersonal professional trustee.
One solution is for the parent and professional
trustee to serve together as co-trustees.
Th e parent has a clear understanding
of the family’s objectives and the needs of
the child with a disability, while the professional
trustee usually has expertise in
fi nancial matters and public benefi ts law.
Th is is oft en a good combination for a
trust of substantial size. In trusts involving
smaller sums of money, the combination
of a parent and a nonprofi t organization as
co-trustees might be a better match.
Another option is to use a trust protector
to oversee the corporate trustee. A
trust protector is an independent third
party, either an individual or an institution,
whose role is to “look over the shoulder”
of the trustee to ensure that the trust
is properly serving the purpose for which
it was intended. Th e trust agreement typically
details the trust protector’s responsibilities
and areas of authority. One power
oft en given a trust protector is the ability
to remove and replace a corporate trustee.
Naming a parent as trust protector allows
the parent to have formal authority in the
oversight of the trust. Th e corporate trustee,
who is more knowledgeable on the
technical and legal trust issues, can then
serve with the benefi t of a parent’s insight
into the particular needs of the child with
disabilities.
A fi nal option may be the use of a special
needs pooled trust. With a pooled trust, a
non-profi t organization serves as the trustee.
Th ere are fees associated with a pooled
trust, and the trustee is still an organization.
However, a pooled trust company
works almost exclusively with benefi
ciaries who have special needs and can
perhaps provide a more personable, yet
equally professional, trustee.
It is commendable for a parent to want
to be involved in the operation of a special
needs trust benefi tting her child. But
in deciding whom to name as trustee,
co-trustee or trust protector, it is important
to note the many complexities involved
in the proper administration of an SNT. It
is oft en the combination of a parent and
a professional trustee in these roles that
forms the best team to provide the most
comprehensive support to the child with
special needs.
Ronald A. Fatoullah, Esq. is the principal
of Ronald Fatoullah & Associates,
a law fi rm that concentrates in elder
law, estate planning, Medicaid planning,
guardianships, estate administration,
trusts, wills, and real estate.
Eva Schwechter is an associate with
the fi rm. Th e law fi rm can be reached
at 718-261-1700, 516-466-4422, or
toll free at 1-877-ELDER-LAW or
1-877-ESTATES. Mr. Fatoullah is
also a partner with Advice Period, a
wealth management fi rm, and he can
be reached at 424-256-7273.
RONALD FATOULLAH
ESQ, CELA*
ADMITTED TO A NURSING FACILITY AND AGING
SHELDON ORNSTEIN ED.D,
RN, LNHA
Th e early days aft er admission to a
skilled nursing facility are oft en critical
to the newcomer. Th e anxiety surrounding
the older person’s separation from
his home, personal possessions and the
dread of what may await him, may eventually
intensify.
It is this time when a facility should be
expressing their concern for this individual’s
state of mind and how they plan to
deal with it. Without a well thought out
care plan there can be an unintentional
disruption to the newcomer’s previous
life that may leave him no opportunity
of moving forward and settling into
a new environment.
Th is is a radical change from where
the elderly person fi rst lived. Th erefore it
is vital that a suitable ‘home’ be carefully
selected by a concerned relative, confi
dant or caregiver.
Daily facility practices may not always
be clear at the start. For the newly admitted
resident it may appear that there is
very little he is expected to do in the fi rst
several days of the admission.
Facility life can be marked by confusion
and excessive caution (i.e.: “What
if I do something wrong and make staff
angry”), and by little incidents that
unfairly establish an early reputation
that sticks (i.e.: she is a stubborn one or
she appears confused”).
However a move to a nursing facility can
also be soft ened in many other ways. For
example, the admitted resident should be
encouraged to bring several of his personal
possessions which can alleviate his anxiety
and heighten a sense of continuity.
Another important issue that needs
to be addressed is excessive familiarity
between resident and staff . Staff are not
always aware of the crisis of identity that
exist between them and the resident who
already is experiencing a loss of residence.
Th is can be explained when a perfect
stranger may bypass the resident’s proper
name and proceed to a fi rst name greeting
without permission from that resident.
Mrs. Jones is transformed into Elizabeth
or more likely into Beth or even Betsy.
She may further be reduced to an all-purpose…
dear, honey, ‘luv’ or grandma.
In conclusion, although all of the
above are issues and problems that beset
even the best rated of facilities, they are
problems that are approachable when
dignity, compassion and concern are
utilized. I commend those administrators,
nurses and staff who are constantly
evaluating and resolving these issues
to the benefi t of those they are sworn
to care and comfort. I applaud them for
their eff orts and professionalism.
Dr. Sheldon Ornstein is a
registered professional nurse
with a doctoral degree in
nursing organization. He has
specialized in the care of older
adults and has published
many articles on the subject.
He has done post-graduate
work in gerontology and has
taught at several universities.
In 2013, he was inducted into
the Nursing Hall of Fame at
Teachers College, Columbia
University.