In an earlier article, we discussed the important role that a trust protector plays in a special needs trust. Briefly, a trust protector is a person chosen by the person creating the trust (the donor) who is responsible for monitoring the trustee’s actions to ensure that the trustee is doing her job properly. In most cases, the trust protector is not involved in the day-to-day mechanics of trust administration; her role is usually supervisory. But in some cases, the donor of a special needs trust may want to provide a different kind of assistance to the trust’s beneficiary by naming a trust adviser to assist the trustee with trust management, especially when it comes to providing care for the beneficiary.
As the name implies, a trust adviser’s main job is to provide support and advice to a trustee without being directly responsible for the daily management of the trust. A trust adviser can be one person, or a trust can have an advisory committee of several people, but in any case the role of the adviser is to provide a personal connection between the trustee and the beneficiary.
Trust advisers come in many shapes and sizes. In some cases, a trust adviser may be a family member who knows the beneficiary’s individual needs and habits. In other circumstances, the trust advisers could be a team made up of a social worker, doctor, and friend from a beneficiary’s group home. There is no set formula for what works, and there is certainly no requirement for what kind of advice the trust adviser can give. Sometimes, a trustee is required under the terms of the trust to follow a trust adviser’s advice unless it is clearly not in the beneficiary’s best interests. However in most cases the trust adviser serves more as an advocate for the beneficiary’s daily needs and as a vital link between a sometimes busy trustee and a beneficiary who may not be able to assert his needs for himself. If a trust has a trust adviser and a trust protector, the trust adviser may be the first person to contact the protector when something the trustee is doing seems wrong or ill-advised.
Going back to an example from our trust protector article, let’s assume that Jennifer, the donor of a special needs trust, has named her friend John as the trustee of her son Adam’s special needs trust. Although John is Jennifer’s good friend and he has lots of property management and accounting experience, he has never worked directly with a person with special needs. In this situation, he may be a great trustee when it comes to taking care of the trust’s assets, but he may not know exactly what Adam needs on a daily basis. After talking with her attorney, Jennifer decides that she would like to name a group of people, including a social worker who has known Adam for 20 years and a next-door neighbor who has stayed with Adam when Jennifer goes on vacation, as trust advisers. Jennifer’s attorney drafts Adam’s trust in such a way that the advisers’ roles are clearly spelled out: they are to visit with Adam at least once every six months and to render a written care plan to the trustee who is responsible for following the suggestions it contains.
Since every special needs trust, and every beneficiary with special needs, is different, it is impossible to generalize about when a donor may need or want a trust adviser. Meeting with a qualified special needs planner can help you decide whether your special needs trust could benefit from a trust adviser.