Absolute Discretion: Understanding the Trustee Provisions in Your Child's Special Needs Trust (Special Needs Alliance: Special Needs Require Special Lawyers‪)‬

You've researched the importance of setting up a Special Needs Trust to help your child after both you and your spouse have passed away. You've carefully chosen a knowledgeable, experienced special needs attorney to draft the trust, one who is familiar with your child's government benefits and physical or psychological needs. You've weighed the choice of trustee, whether an individual or an institution or both. (See EP, April 2008 issue, "Selecting a Trustee.") Now you've received the draft of your child's trust--anywhere from 10 to 50 pages of legalese--and your eyes are glazing over. You'd like to just sign and get it over with. STOP! A Special Needs Trust gives the Trustee enormous power to help--or not help--your child. The Trustee has absolute discretion. Even if you have chosen a knowledgeable, thoughtful, disinterested, caring individual as Trustee, your Trustee may resign, or fall ill, or run into family problems. If you have chosen a corporate trustee, the trust company may "cut back" and fire your trust officer, or move its trust office to a different state. In addition to choosing a good Trustee, you should have a document that includes the tools necessary to protect your child if there are problems with the Trustee or if a different Trustee is serving. This article will review some of the nuts and bolts issues your trust document should address, as well as trust language you may want to include--or avoid.