1下面这篇文来自于《Private Wealth Magazine》2010年3月
设立special needs 信托使得父母（或祖父母）的资产变成“间接
available to the beneficiary's access ”， 这样使得信托收益人也就是disabled
kid更容易 qualified for 政府福利。 A special needs trust can protect
Medicaid eligibility because assets in the trust are uncountable， 这个
special needs 信托的基本目的就是保障a disabled individual 的终生需要。
可怜天下父母心， 家长们知道40年之后也许自己过世了， 40-50岁的special needs
家长早作信托安排， 指定专业受托人(受托机构)， 减轻高额遗产税负担，留下钱照料
Trusts As A Caretaking Tool （信托作为一种照料special needs children的工具）
By Robert Morrill
Regardless of the form of trust one uses, critical non-tax issues come to
the forefront when crafting an estate plan for married and single parents,
grandparents and parents with special needs children.
What assets will flow into the trust? Who will manage the funds in the trust
? Who will decide when and for what purposes funds will be distributed from
the trust? What guidance will the trustee be given regarding distributions
and how will that guidance be provided? All of these issues need to be
carefully considered when structuring the trust.
The choice of trustee is one of the most important decisions a parent or
grandparent will make. There are many criteria to apply when selecting a
trustee. At the top of the list is selecting someone in whom the client has
complete confidence since most trusts are not supervised by the courts.
While the trustee has a fiduciary duty to account for his actions and follow
the trust’s terms, there is obvious opportunity for abuse. In many cases,
naming co-trustees is a good option as they both share the burden and
provide checks and balances.
In cases where a non-professional trustee is used, the person should
understand the complexity of his responsibilities. In addition, a non-
professional should be someone who is able to devote the proper time to the
If a special needs child will be a beneficiary of the trust, it is very
important that the trustee be familiar with the child and his or her needs.
A family member or friend can often fill this important role. The trust can
also be structured to include a trust advisory committee made up of
individuals familiar with the child’s special needs to help guide the
Many parents and grandparents use professional trustees, such as a bank or
trust company. A good professional trustee will ensure that the business end
of the trust is run properly (e.g., the funds will be secured and invested
properly and tax returns will be filed). In addition, many corporate
trustees have in-house resources to help the trustees address the special
needs of the beneficiary. In the right situation, the use of a professional
fiduciary can be a benefit. The downsides to using a professional trustee
include the fees that will be charged and the concern that, in some cases,
professional trustees are not adequately tuned into the needs of the
beneficiary. If a professional trustee is used, it is a good idea to give
someone the power to remove and replace the professional. The trust can be
drafted to require a professional trustee, and define what is meant by this
term, and then give someone power to select, and replace, the professional
The choice of an appropriate trustee takes on an added dimension with single
parents. If the parents are divorced, typically the parent with custody of
the children will not want the other parent to play any role in the trust.
Most trusts have trustee succession provisions specifying that if there is
no trustee serving, the beneficiaries can select a successor. If the
beneficiaries are minors, then their guardian could have a voice in the
selection. Thought should be given to excluding the ex-spouse both from ever
serving as trustee and also from participating in the selection of a
The term “special needs trust” usually refers to a
trust that’s prohibited from making distributions that would impact the
beneficiary’s eligibility for needs-based government benefits. Such a trust
seeks to supplement the governmental benefits but not affect the
beneficiary’s eligibility for those benefits. In most cases, a traditional
special needs trust is not the right fit for a family with significant
wealth. In these cases, trustees often conclude that they can provide better
care for the child by making distributions regardless of the child’s
eligibility for needs-based benefits.
Parents—no matter what their level of wealth—typically use a trust to make
sure their special needs children will continue to have their food,
clothing, shelter, medical expenses and educational expenses paid for. Some
parents will have other reasons for which they would, or would not, want
funds distributed. Guiding the use of funds, however, is a balancing act.
Placing too much specific direction in the trust can have the unintended
effect of tying the trustee’s hands when unforeseen events arise. Having no
direction at all regarding when distributions should be made can place the
trustee in an equally difficult position. A trust drafted with broad
discretionary powers over distributions, accompanied by an external letter
of wishes or instructions from the person creating the trust, is one way to
strike an appropriate balance.
When minor children are involved, thought should be given to where the child
would live if something happens to one or both of the parents. If title to
the family home would flow to the trust, direction should be given regarding
whom the trustees could allow to live in the home and what expenses for the
home would be paid from the trust. If the child lives with a guardian,
would the guardian need to buy a larger home or place an addition on his
home? If so, it may be appropriate for the trust to provide for a limited
distribution to the guardian to cover such expenses.
Once the trust has been set up, careful attention needs to be given to
ensure that it is properly funded. This involves review of both how much
needs to be in trust for the child and what kinds of assets are best suited
to meet those needs. Many parents with special needs children purchase life
insurance, owned by an irrevocable insurance trust, to provide funds to care
for the child. With a married couple, second-to-die life insurance owned
through an irrevocable trust can be a cost-effective way to provide funds
for the child’s care.
Whether to name a trust for a special needs child as beneficiary of any
qualified retirement plan assets requires careful consideration. While
income tax deferral can be obtained by structuring the trust as a conduit
trust, the required distributions from such a trust may be inconsistent with
the child’s situation. Alternatively, the trust can be structured as an
accumulation trust, but this may not yield optimal income tax benefits. If
there are other assets available, it is often best to fund the special needs
child’s trust with assets other than qualified retirement funds.
When planning for high-net-worth individuals, tax reduction is always a key
issue. Unfortunately, the focus on taxes often comes at the expense of other
, equally important, objectives. This is driven, in part, by our training.
Lawyers, CPAs and financial advisors are trained to identify, analyze and
solve legal and financial issues. To fully satisfy clients’ needs, however,
we must move beyond this framework, become true counselors and focus on the
personal issues our
clients bring to the table. To achieve this goal, the issues discussed above
should be explored closely with the client.
2· What is a special needs trust?
· Why establish a special needs trust?
· What requirements must a special needs trust meet?
· What types of special needs trusts are available?
· How is a special needs trust typically funded?
· What else should you consider?
(1)To preserve eligibility for Medicaid
A special needs trust can protect Medicaid eligibility because assets in the
trust are uncountable.
(2)To preserve eligibility for Supplemental Security Income (SSI)
Children and adults with special needs who have limited income and resources
often receive monthly benefits from Supplemental Security Income (SSI) .
These cash benefits can be used for basic needs such as housing and food.
But because SSI benefits are need−based, inheriting money can mean
that a child with special needs will lose his or her eligibility for this
benefit program. By naming a special needs trust as your beneficiary instead
of your child, however, assets can be devoted to the care of your loved one
. In addition, since SSI recipients are normally automatically eligible for
Medicaid benefits, preserving your child's eligibility for SSI may preserve
his or her eligibility for Medicaid as well.
(3)To provide additional care and services
A special needs trust can be especially useful if you want to provide care
and services necessary for your child's well−being, without
supplanting Medicaid benefits. Although Medicaid pays for a number of
medical costs, including hospital bills, physician services, and long−
term care, it will not subsidize items and services considered nonessential.
These may include health−related expenses such as eyeglasses, dental
care, rehabilitation services, and home health aide services, as well as
personal expenses such as transportation, computer equipment, and vacations.