Select Stand-Alone Trust Guidelines

For attorneys and legal professionals

PLAN's Stand-Alone Trust Guidelines

PLAN of MA & RI serves as Trustee of stand-alone special needs trusts drafted to include the provisions in these guidelines. Once the trust is drafted, email it to [email protected] for review by PLAN’s in-house counsel, who will contact you within one to two weeks with questions, comments and next steps.

Stand-Alone Trust Guidelines (Version 1.2)

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Summary of the guidelines

A quick reference to the provisions PLAN looks for. The PDF above is the authoritative version.

Provision	What PLAN looks for
Trustee authority to make administrative amendments	Authority to amend the trust to meet the objective of supporting the beneficiary and to conform to benefits laws, regulations and sub-regulatory guidelines.
Payment of professional Trustee’s fees	Allows payment of the Trustee’s fees, with or without a published fee schedule, and discretion to pay tax advisors.
Trustee authority to hire professionals	Allows services to the beneficiary from PLAN staff and outside providers, and advisors to the Trustee such as accountants and attorneys.
Trustee authority to resign or appoint a successor	The Trustee can resign without the assent of the beneficiary or any third party, and can appoint an appropriate successor.
Trustee to serve alone	No requirement for a co-trustee, and no need to obtain the resignation or declination of another named trustee.
Trustee liability protection	Protection for good-faith actions and omissions, a full release from liability for past trustees’ actions, and an accounting from the outgoing trustee.
Trustee authority to decant	Explicit authority to decant to a (d)(4)(A) or other appropriate special needs trust, including a pooled trust, in conformity with SSA POMS SI 01120.199. Massachusetts first-party trusts must include MassHealth reporting language for early termination.
No trust protector or advisor oversight	No beneficiary or third party may remove the Trustee, and the Trustee has sole discretion over investments and distributions.
First-party trust taxed as a grantor trust	Explicit grantor trust language and Internal Revenue Code s. 672 powers that do not disrupt benefits. An existing trust must have been taxed as a grantor trust.
Third-party trust taxed as a non-grantor trust	Explicit non-grantor trust language. An existing trust must have been taxed as a non-grantor trust.
Trustee discretion over income	Explicit authority to accumulate undistributed income and to characterize trust property as income or principal.
Inherited IRAs	Conformity with required minimum distribution rules, including the SECURE Act, to allow the maximum stretch-out.
Broad Trustee investment powers	Broad investment powers, with explicit reference to statutory powers where appropriate.
Trust situs	Situs under Massachusetts or Rhode Island governing law, with Trustee authority to change situs if appropriate.
Distributions that may interrupt benefits	No explicit restriction on distributions for housing or food, and authority to make a distribution that interrupts benefits when it is in the beneficiary’s best interest.
No interest in real property	The trust may not be the current owner or future grantee of any interest in real property.
Spendthrift provision	A robust spendthrift provision that prohibits voluntary and involuntary transfers of the beneficiary’s interest.
Accountings	Accountings no more often than annually, and only to the beneficiary and/or their legal representative. Massachusetts first-party trusts should include MassHealth accounting language where appropriate.
Identifiable remaindermen	Any second trust named as a remainder beneficiary must be provided for review. Class remaindermen must be listed by name, address and relationship.

Questions about the guidelines?

Email [email protected] or call PLAN at 617-244-5552 (Braintree, MA) or 401-234-8444 (Providence, RI).