The National Foundation for
Special Needs Integrity, Inc. Pooled Special Neeos Trust
The National Foundation for Special Needs Integrity Pooled Trust for The State of Indiana
© Copyright 2007 by The National Foundation for Special Needs Integrity, Inc. All rights reserved under 17 U.S.C. §401(c), as amended by Pub. L. 94-553; and 37 C.F.R. §201.20.
1
DECLARATION OF TRUST The National Foundation for Special Needs Integrity Pooled Trust for The State of Indiana THIS TRUST AGREEMENT ("The National Foundation for Special Needs Integrity Master Trust for The State of Indiana"), is made as of the 16th day of January, 2008 and amended and restated as of the zs" day of September, 2009, by the current Board of Directors of the National Foundation for Special Needs Integrity, Inc., an Indiana not-forprofit corporation acting as sole Trustee (hereafter referred to as "Trustee" unless otherwise indicated), for the convenience of Grantors who qualify and wish to adopt it. This Declaration of Trust is intended to create a trust fund in accordance with 42 U.S.c. §1396p and 405 LA.C. §2-3-22(i)(3) and as may be amended from time to time, to hold the assets of individuals who are disabled, as defined in §1614(a)(3) of the Social Security Act [42 U.S.c. §1382(a)(3)], as may be amended from time to time. If a Grantor (or a qualified person acting on the Grantor's behalf, including a court order) executes a Joinder Agreement ("Joinder"), which incorporates this Declaration of Trust by reference, and the Joinder is accepted by the Trustee, the Trustee agrees to hold, administer and distribute the income and principal of the assets received in accordance with the following terms and provisions. RECITALS: WHEREAS, The National Foundation for Special Needs Integrity, Inc. is a tax-exempt 501(c)(3) not-for-profit corporation organized under the laws of the state of Indiana and having its principle place of business in the city of Fishers, Indiana, and its mailing address at lO500 Kincaid Drive, First Floor, Fishers, Indiana 46037; and WHEREAS, the Board of Directors of the National Foundation for Special Needs Integrity, Inc. entered into a trust agreement dated January 16,2008 for the convenience of Grantors who wish to have a trust fund administered on behalf of themselves in accordance with the above referenced applicable law, and such Grantors adopt the Trust Agreement; and WHEREAS, pursuant to Article 15.5 of the January 16, 2008, Declaration of Trust, the Board of Directors reserved the right to further amend the original Declaration of Trust, such amendments taking affect as of the date written below; and WHEREAS, the Board of Directors wish to make amendments to the original Declaration of Trust in order to correct several form, grammar, syntax, and scriveners' errors; and to more specifically comply with the Social Security Administration P.O.M.S. SI §01120.203.B.2 and 405 LA.C. §2-3-22(i)(3), and for simplicity sake hereby amend and
2
restate the original Declaration of Trust in the entirety, so that hereafter this amended and restated Declaration of Trust shall replace all prior versions of the original Declaration of Trust and amendments thereto and restatements thereof (collectively referred to herein as The National Foundation for Special Needs Integrity Pooled Trust for The State of Indiana"); and WHEREAS, if a Grantor executes a Joinder Agreement, which incorporates this Declaration of Trust by reference, and the Joinder is accepted by the Trustee, the Trustee agrees to hold, administer and distribute the income and principal of the Trust in accordance with applicable state and federal law, and the terms and provisions hereinafter set forth. NOW THEREFORE, The National Foundation for Special Needs Integrity Master Trust for The State of Indiana is hereby amended and restated as follows: BE IT DECLARED THAT this Trust shall be known as THE NA nONAL FOUNDA nON FOR SPECIAL NEEDS INTEGRITY POOLED TRUST FOR THE STATE OF INDIANA, and is settled by The National Foundation for Special Needs Integrity, Inc., a 501(c)(3) Nonprofit Corporation, located at 10500 Kincaid Drive, First Floor, Fishers, Indiana 46037. Article One Creation of Trust The Settlor/Trustee authority:
establishes
this Pooled Trust pursuant
to the following
legal
1)
the Omnibus Budget Reconciliation Act of 1993, codified at 42 U.S.c. §1396p(d)(4)(C);
2)
the Social Security Act, codified at 42 U.S.C. §1917(d)(4)(C);
3)
the Social Security Administration P.O.M.S. SI §01120.203.B.2; and
4)
405 LA.C. §2-3-22(i)(3).
This Pooled Trust is hereby established and is to be administered at all times for the sole benefit of individual qualified Beneficiaries who enroll under this Pooled Trust, said individual Beneficiaries living throughout various parts of the state of Indiana and this Pooled Trust serving them on such a scale in accordance with federal law and the applicable law or guidelines of the state of Indiana, to the extent that said law or guidelines are compliant with federal law.
3
Article Two Pooled Trust This Trust is a "pooled trust," as defmed by 42 D.S.C. §1396p(d)(4)(C). As such, the trust property shall be considered one entity for the purposes of custody, management, and investment in accordance with 42 D.S.C. § 1396p(d)(4)(C). However, a separate Sub-Account shall be established and administered for the sole benefit of the specific Grantor/Beneficiary enrolled under that Sub-Account and all contributions; deductions and disbursements; investment earnings, if any; losses, if any; and all other incidental expenses specific to that GrantorlBeneficiary, if any, shall be recorded and accounted for separately for each GrantorlBeneficiary. Article Three Name of Trust This Trust shall be referred to as The National Foundation for Special Needs Integrity Pooled Trust for The State of Indiana. Article Four Number of Pages The entirety of this Declaration of Trust exists in twenty-one (21) pages. Article Five Definitions A.
"Settlor" shall mean Integrity, Inc.
The National
B.
"Trustee" shall mean The National Foundation for Special Needs Integrity, Inc., or its successor(s) in interest and capacity, and shall include one or more Co-Trustee(s), if such Co-Trustees shall in the future be named as may be necessary or advisable; said Co-Trustee(s) subject to the right of The National Foundation for Special Needs Integrity, Inc. to remove any Co-Trustee, which right is specifically herein reserved.
C.
"Grantor" shall mean the person, or that person's guardian, parent, grandparent, or pursuant to court order, whose money will be funding the trust account solely for his or her benefit. Grantor and Beneficiary are the same person, pursuant to 42 U.S.c. §1396p(d)(4)(C), as may be amended or recodified, and as indicated by the term "Grantor/Beneficiary," which may be used herein from time to time. No assets, other than that belonging to the GrantorlBeneficiary named in the specific Joinder Agreement, may fund a sub-account under this Declaration of Trust.
4
Foundation
for Special Needs
D.
"Beneficiary" shall mean a person with a disability, as determined by the state of Indiana, and/or as qualified under §1614(a)(3) of the Social Security Act and/or as determined by 42 U.S.C §1382c(a)(3); and 42 U.S.C §1396p(d)(4)(C). Beneficiary shall be the sole recipient of the services provided by Trustee under recipient's trust Sub-Account created under this trust by Grantor. Grantor and Beneficiary are the same person, pursuant to 42 U.S.C. §1396p(d)(4)(C), as may be amended or recodified, and as indicated by the term "Grantor/Beneficiary," which may be used herein from time to time.
E.
"Contingent Beneficiary" and/or "Remainder Beneficiary" and/or "Residual Beneficiary" shall mean the person or persons named in the individual Joinder Agreement accompanying this Declaration of Trust under which the Beneficiary enrolled and to whom any assets remaining after the Indiana Family and Social Services Administration has been reimbursed in full pursuant to §13611 (b)of the Omnibus Budget Reconciliation Act of 1993 (OBRA), Public Law 103-66 [the pertinent parts of which are codified at 42 V.S.C. §1396p(d)(4)(C)(iv)].
F.
"Joinder Agreement" shall mean the individual written agreement between the Trustee and each Grantor/Beneficiary, through which the Grantor enrolls in the Trust and establishes an individual Sub-Account thereunder.
G.
"Sub-Account" or "Individual Sub-Account" shall mean the portion or percentage of the Trust Corpus that is established and managed individually for the sole benefit of the Beneficiary.
H.
"Trust Corpus" and "Trust Property" shall mean the collective sum of all individual trust Sub-Accounts, pooled together for the purpose of custody, investment and management. These two terms may be used synonymously and interchangeably.
I.
"Means-Tested Benefits" and "Governmental Assistance" shall mean any and all basic support, services, goods, medical care and attention, financial assistance, shelter or any other type of assistance administered and provided by any local, county, state or federal governmental agency, bureau, or subdivision or department thereof to, or on behalf of, a Beneficiary. Such Means-Tested Benefits or Governmental Assistance shall include, but is not limited to, Medicaid or its equivalent, Home and Community Based Medicaid Waivered Services, Supplemental Security Income (SSI), and HUD/Section 8 Housing Assistance.
5
---------
-
J.
"Supplemental" shall be used to characterize payments made to, or on behalf of, a beneficiary for the comfort, enjoyment, entertainment, or material enrichment of a Beneficiary that is not made available to the Beneficiary by a Government Assistance program or agency and that is not a part of the Beneficiary's basic care and support. Subject to state law, supplemental care may include, but shall not be limited to, goods and services such as: travel, entertainment, computer, hobby supplies, educational/religious materials, books, toys, medical devices not paid for by Medicaid and otherwise allowable, dental care, cosmetic and hair care, sporting events, paid companionship subject to applicable law, special shoes and/or clothing, games, television, musical lessons or instruments, audio devices, etc.
K.
"Remainder" shall mean the amount of money in an individual SubAccount upon the death of the Beneficiary after the payment of reasonable and allowable administrative expenses pursuant to Social Security SSI P.O.M.S. SI §OI120.203.B.3.a.
L.
"Individual Sub-Account Liaison (lSAL)" shall mean the person or persons acting on behalf of the Grantor/Beneficiary in a capacity that allows him, her, or them to assist the Grantor/Beneficiary in communicating the Grantor/Beneficiary's circumstances, location, contact information, Governmental Assistance information, needs, desires, wishes, concerns, comments, and other matters to the Trustee. Additionally, the Individual Sub-Account Liaison (ISAL) shall assist the Trustee in delivering goods and services payable from the Sub-Account, in light of the fact that both federal and individual state statutes, regulations and guidelines prohibit the disbursement of cash money or cash equivalent directly to the GrantorlBeneficiary. Examples of ISALs include, but are not necessarily limited to, the Grantor/Beneficiary's legal representative, Social Security Representative Payee, parent, grandparent, adult child, adult grandchild, sibling, extended family member, trusted friend, attorney, advocate, guardian, conservator, or other interested person of the age of majority who is trustworthy and who is capable of competently communicating to the Trustee on behalf of the Grantor/Beneficiary. Absent constructive or actual notice of carelessness, wanton behavior, fraud, intent to defraud or deceive, or other malfeasance or neglect on the part of the ISAL, Trustee shall have the authority reasonably to rely on representations made by the ISAL in evaluating the Beneficiary'S circumstances and shall not be liable to the Beneficiary for acts of malfeasance or neglect on the part of any ISAL. Ordinarily, the ISAL should be a person or persons other than the Grantor/Beneficiary. However, the Grantor/Beneficiary may act as his or her own ISAL if the Grantor/Beneficiary's circumstances so warrant or
6
when such an arrangement is otherwise necessary and/or advisable; provided, however, that the Trustee remains without the authority to disburse cash or cash equivalent directly to the GrantorlBeneficiary even when the GrantorlBeneficiary acts as his or her own ISAL. M.
"Legal Representative" shall have the same meaning as it has in the statutory, regulatory, and common law of the jurisdiction governing the construction of this Declaration of Trust and may include, but shall not necessarily be limited to, the GrantorlBeneficiary's legal or natural guardian, conservator, durable power of attorney, attorney-in-fact, legal counsel, a court of competent jurisdiction, or a state by and through that state's appropriate and duly authorized state agency. Article Six Purpose and Intent
It is the Grantor's intent to establish a supplemental needs trust, with which to promote his or her comfort, happiness, and overall quality of life. It is the Trusts' purpose and intent to utilize assets in the Beneficiary'S trust Sub-Account to provide for and serve the best interests of each individual Beneficiary. It is the intent of the Trust, the Trustee, and the GrantorlBeneficiary to comply with all federal statutes and regulations, state statutes and regulations (to the extent that said statutes and regulations are compliant with federal law) and to use the Trust Property, and each individual Sub-Account thereunder, to supplement, not supplant, means-tested government assistance programs, including, but not limited to, Medicaid, Home and Community Based Waivered Services, Supplemental Security Income, Food Stamps, HUD/Section 8 Housing Assistance, and any other Means-Tested Benefits administered by the federal government or the state government of the state in which any individual Beneficiary resides or may at any time in the future reside. Administering Trust Property in the best interest of the Beneficiary and in a manner in accordance with both the letter and the spirit of all applicable laws is the primary objective of the Trust and the Trustee of the Trust. The Trust shall not be used to reimburse any state or federal government for any benefits or maintenance representing basic medical care or food and shelter, as such may be defined by individual statutes and regulations promulgated or codified by such governmental bodies or agencies. The Trustee hereby is prohibited from making any disbursements from the Trust that would result in the reduction or destruction of any Means-Tested Benefits for which the Beneficiary otherwise would be eligible, except to the extent, at the Trustee's sole, absolute, and unqualified discretion, that such reduction in benefits would be less than the monetary value of the disbursement.
7
-------
The Trustee further is prohibited from making any such disbursement that would represent payment for a good or service being provided to the Beneficiary by any state or federal agency, or department or subpart thereof. It is not the purpose or intent of the Trust to provide for any such basic care, maintenance or support, and the Beneficiary shall have no right to command payment for such basic care and support, and the Beneficiary shall have no recourse to any court to compel the Trustee to make payment for such support or medical care. Article Seven Irrevocability Upon the execution of the Joinder Agreement pertinent to this Trust and the receipt of the Trust Property from the Grantor/Beneficiary, or his or her legal representative, both the Trust created by this Declaration of Trust and the Joinder Agreement by reference under which the Trust is incorporated shall be absolutely irrevocable as to such Grantor/Beneficiary and the Property contributed by the same shall not be refundable under any circumstances whatsoever. The Grantor/Beneficiary hereunder has absolutely no power or right, in law or equity, to control any disbursement from this Trust or otherwise to control the actions of the Trustee, who serves at its absolute, sole, and unqualified discretion. Grantor/Beneficiary cannot demand disbursement for any reason whatsoever, including, but not limited to, basic care and support, medical care, or food or shelter, and cannot appeal to any court for recourse as to the direction of the Trustee in making disbursements on behalf of the Grantor/Beneficiary. Article Eight Funding Initially at Inception The Trust is established as indicated by the date above. Contemporaneously with the execution of this Declaration of Trust, Settlor/Trustee hereby conveys a one-time payment of one hundred dollars exactly ($100.00) to the Corpus of the Trust for the purpose of initially funding said Trust. The Corpus of the Trust shall consist of this initial funding in addition to the individual cash transfers of subsequently enrolled Grantor/Beneficiaries, who may enroll from time to time by and through their individually executed Joinder Agreements, which Joinder Agreements shall incorporate by reference all provisions of this Declaration of Trust.
8
Article Nine Spendthrift Protection Section 9.1: Beneficiary Cannot Encumber Trust No portion of the Trust Corpus or trust Sub-Account of any Beneficiary, whether in principal or in income, shall be assigned, pledged, promised, transferred, bequeathed or sold in any manner by any Beneficiary. No portion of the Trust Corpus or trust SubAccount of any Beneficiary shall be liable for the debts, contracts, obligations, engagements, ventures or enterprises, whether voluntary or otherwise or for any claims whatsoever in law or equity of any Beneficiary enrolled in the Trust. No Trust Property shall be available to the Beneficiary until actually delivered to or on behalf of said Beneficiary by the Trustee, and no portion of the Trust property shall be attachable by any person, corporate entity or other legal entity claiming to be a creditor in law or equity of the Beneficiary. Under no circumstances may a Beneficiary, family member of a Beneficiary, litigant adverse to a Beneficiary, or any creditor of any Beneficiary compel any disbursement from the Trust Property or the Beneficiary's Sub-Account thereunder. Section 9.2: Supplemental Trust, Not Support Trust; Assets Unavailable The Trustee hereunder does not owe any duty to provide basic care, maintenance, food, shelter, medical treatment, or support, whether in cash or in kind, to the Beneficiary. Any private or public Means-Tested or non-Means- Tested Benefits provided to the Beneficiary should not be discontinued as a result of this Trust. This Trust is a supplemental needs trust, not a support or maintenance trust, and the assets held in this Trust are not intended for the basic support, maintenance or care of the Beneficiary. The Trust property is legally unavailable to the Beneficiary, and the Beneficiary has no legal right to compel any disbursement or distribution from the Trust for any reason whatsoever, or to otherwise control or direct the actions of the Trustee, said Trustee acting under its sole, absolute, and unqualified discretion. Section 9.3: Disbursements Not To Exceed Sub-Account Balance The cumulative total dollar amount of all disbursements made on behalf of a Grantor/Beneficiary shall not exceed the cumulative total of money contributed by the Grantor/beneficiary to his or her trust Sub-Account.
9
Article Ten Administrative Provisions Section 10.1: Calendar Year For accounting Purposes, the Trust shall be operated on a calendar year basis, each year starting on January 1 and ending on December 31. Section 10.2: Accounting to Beneficiaries And The State of Indiana The Trustee will report no less than annually to the enrolled Beneficiaries, or to their designated legal representative(s). The Trustee shall report to the State of Indiana upon request or in accordance with its applicable laws and/or guidelines, if any. The Trustee's report will include the following: 1.
A statement providing the cumulative balance of the Trust Pool;
2.
A statement specific to the Beneficiary's Sub-Account, setting forth an itemized statement of all disbursements, including the nature of the purchase, the date on which the check was drafted, the amount of the check, the check number, and to whom the check was sent.
3.
A statement of all receipts or contributions to the trust Sub-Account; and
4.
A statement of income or interest earned from investments, if any, or losses realized by the trust Sub-Account, if any. Section 10.3: Inspection by Beneficiary
Upon written request signed by the Beneficiary or the beneficiary's legal representative, the Beneficiary shall have the right to inspect all records pertaining to his or her trust Sub-Account. Section 10.4: Defending The Trust or Trust Sub-AccountCs) The costs and expenses incurred by the Trustee for extraordinary administrative expenses or for the legal defense of the Trust Pool shall be apportioned pro-rata to all SubAccounts. In the event of extraordinary administrative expenses or legal challenge to one specific Sub-Account, such costs and expenses shall be borne by the specific SubAccount requiring such extraordinary administrative expenses or that is the target of the claim, litigation or challenge brought against it-unless such issue requiring extraordinary administrative expenses or such claim, litigation, or challenge potentially may materially affect the integrity or administration of other sub-accounts, in which case said costs shall be apportioned pro-rata between all sub-accounts that may be materially affected by said issue giving rise to extraordinary administrative expenses or said claim, litigation or challenge.
10
-------
--
--
-
---------------------------
Section 10.5: Taxes Each Trust Sub-Account shall be a Grantor-type trust for the purposes of the United States Internal Revenue Service and for the purpose of determining the Beneficiary's individual tax liability, if any. All income accumulated or received by the Trust shall be taxable to the Beneficiary. As such, in order to realize grantor tax status pursuant to LR.C. §677(a)(3), the Trustee may apply trust income from each trust sub-account to the premium payments on policies insuring the life of each Beneficiary without the approval or consent of any adverse party under LR.C. §672(a). Trustee may make disbursements directly to the appropriate taxing authority on behalf of the Beneficiary in order to satisfy the Beneficiary's tax liability. The Trustee shall have no duty to prepare IRS Form 1040 or its individual state equivalent, or any other state or federal tax return on behalf of the GrantorlBeneficiary. However, Trustee shall report to the Grantor/Beneficiary all information regarding the GrantorlBeneficiary's trust Sub-Account that may be required by the GrantorlBeneficiary to complete his or her applicable tax forms, as they may relate to his or her trust SubAccount. In the event that the Indiana Family and Social Services Administration determines that any language in this Section 10.5 renders the Beneficiary'S trust SubAccount a countable resource, the above language in Section 10.5 shall be subject to Section 15.4, below, and shall be null and void and Beneficiary's trust may be treated as a non-grantor trust rather than this trust being rendered invalid. In any event, IRS treatment of this trust should have no bearing whatsoever on whether or not the Indiana Family and Social Services Administration counts this trust as a countable resource against the Beneficiary for the purpose of Medicaid eligibility. Nothing in this section shall be construed as modifying, altering, subtracting from, or in any other way affecting: 1) the irrevocability of this Trust; 2) its status as a wholly discretionary trust; 3) the overall purpose and intent of this Trust; 4) any of the provisions found in this Declaration of Trust; or 5) any provision found in the Joinder Agreement pertinent to this Declaration of Trust. Article Eleven Trustee Powers The Trustee shall have all of the powers provided for by the applicable Trust Codes, Fiduciary Acts, Prudent Investor Acts, and any other applicable to trust administration of the state in which the Principal Place of Administration and Trust Situs are located, both as currently codified and as may be amended or recodified in the future, including, but not limited to: 1.
the power to act as Trustee;
2.
the power to invest or not to invest the Trust property;
11
3.
the power to seek advice and services from third party sources as it may deem appropriate in order effectively to carry out its duties as Trustee;
4.
the power to incur costs associated with the seeking of advice regarding the Trust or any Sub-Account thereunder;
5.
the power to defend the Trust or any Sub-Account thereunder, and to incur costs and expenses associated with such defense of the Trust or any SubAccount thereunder;
6.
the power to designate a Co-Trustee, as may be necessary or advisable; and
7.
the power to exercise sole and absolute discretion over the decision to make a disbursement or not to make a disbursement, as may be requested by the GrantorlBeneficiary.
To the extent that the provisions set forth in this Article Eleven conflict with the applicable laws of the state in which the Principal Place of Administration and the Trust Situs are located or the applicable laws and guidelines of the state in which the Grantor/Beneficiary is receiving Medicaid benefits that govern disbursements from a special needs trust, such laws and/or guidelines shall control, to the extent that said laws and/or guidelines are in compliance with applicable federal law and/or guidelines. Article Twelve Trustee Duties The Trustee shall have the duty to act in the Beneficiary's best interest, keeping such best interest first in mind as it conducts its business. The Trustee shall have a duty of care, prudence, and loyalty to the Beneficiary, and all other similar duties provided for by statute, cornmon law, or in equity, including, but not limited to, those duties enumerated by the Trust Codes, Fiduciary Acts, Prudent Investor Acts, and any other laws applicable to trusts or trust administration of the state in which the Principal Place of Administration and Trust Situs is located. Trustee shall also have a duty to know and abide by the applicable Medicaid, SSI and other Means-Tested Benefits statutes, regulations, and guidelines governing the administration of a special needs trust and disbursements therefrom of the state in which Grantor/Beneficiary is receiving Medicaid benefits-to the extent that said statutes, regulations, and guidelines governing the administration of a special needs trust and disbursements therefrom of the state in which Grantor/Beneficiary is receiving Medicaid benefits are compliant with applicable federal law.
12
Article Thirteen Investments and Disbursements During The Beneficiary's Lifetime Section 13.1: Investments In consideration of the need for Trust assets to be as easily accessible to the Grantor/Beneficiaries as possible (need for liquidity), and in consideration of the relatively smaller amounts of assets in each Trust Sub-Account, and in consideration of the intent of enabling legislation 42 V.S.C. 1396p(d)(4)(C) as a safe harbor for assets belonging to disabled persons who receive Means-Tested Benefits, and not as an investment vehicle, and in consideration of Securities Exchange Commission, regulations and rulings, and in consideration of likely tax consequences of securities investments to the individual Grantor/Beneficiary, and in consideration of the purpose of the Trust as a means to preserve Trust Property and preserve the eligibility of each Grantor/Beneficiary for Means-Tested Government Benefits rather than as a means to generate wealth, the Trustee may elect, at its sole and unqualified discretion, not to invest the Trust Property in securities or other investment vehicles regulated by the Securities Exchange Commission, and may elect or not to elect to invest such property, in its sole and unqualified discretion. Should the Trustee, in its sole and unqualified discretion, elect to invest the Trust Property, it shall do so in a prudent manner and in accordance with the Trust Codes, Fiduciary Acts, Prudent Investor Acts and any other law applicable to trusts or trust administration of the state in which the Principal Place of Administration and Trust Situs are located. Section 13.2: Disbursements During The Beneficiary'S Lifetime The Trustee may, at its sole and unqualified discretion, disburse trust income or principal on behalf of the Beneficiary as it deems necessary and as advisable and in accordance with the applicable laws or guidelines of the state of Indiana, to the extent that said applicable laws or guidelines of the state of Indiana are in compliance with applicable federal law. Disbursements shall be made observing the following factors: 1)
the unique interests and particular circumstances of each individual Beneficiary, including his or her need for comfort, enjoyment, dignity, and overall well-being;
2)
the amount of money in the Beneficiary'S Sub-Account;
3)
the individual goals of the Beneficiary, as the Beneficiary has set forth in his or her Joinder Agreement (although in no way shall this provision be construed in such a manner as to give the Beneficiary the authority to direct, control, or otherwise demand that such a disbursement be madeand the Trustee reserves the right, in its sole and absolute discretion, to refuse a disbursement request if such request would be contrary to the
13
spirit or letter of applicable federal and state laws and/or guidelines and/or otherwise not in the best interest of the Beneficiary); 4)
any and all resources available to the Beneficiary;
5)
the statues, regulations, rules and guidelines promulgated by any and all federal and state agencies supplying Means- Tested benefits to the Beneficiary, or to whom the Beneficiary has applied for the receipt of Means-Tested Benefits; and
6)
the method of delivery of such goods or services that would be in the best interest of the Beneficiary and otherwise compliant with all applicable federal and state law.
The purpose of disbursements from the Beneficiary's individual Sub-Account shall be to provide supplemental attention and care, and promote the comfort, enjoyment, and overall material quality of life of the Beneficiary, but under no circumstances shall it be the intent or effect of this Trust to supplant Means-Tested Benefits received by the Beneficiary. The Trustee has no discretion whatsoever to make disbursement from the Beneficiary's trust Sub-Account that would be contrary to the statutes, regulations, common law or agency practices of the state of Indiana, so long as the statutes, regulations, common law or agency practices of the State of Indiana are in compliance with applicable federal law. It is the Trustee's affirmative duty to know the applicable laws or guidelines of the State of Indiana and to abide by them, both in letter and in spirit, to the extent that said laws or guidelines are in compliance with applicable federal law. Section 13.3: Sole Benefit All disbursements made by the Trustee shall be for the sole benefit of the Beneficiary, as provided for by 42 U.S.C §1396p(d)(4)(C). In making disbursements on behalf of the Beneficiary, the Trustee shall pay deference to any and all guidelines promulgated by the Center for Medicaid and Medicare Services (CMS), including, but not limited to, CMS Transmittal Number 64. Section 13.4: Supplementation, Not Supplantation The purpose of this Trust is to provide for the supplemental needs of the Beneficiary. As such, the Trustee shall not make any disbursement on behalf of a Beneficiary for such goods or services that would serve to replace goods or services that the Beneficiary is at that time receiving, or anticipates to receive, from any local, state or federal Governmental Assistance program. The Trustee is not authorized to make a disbursement on behalf of the Beneficiary that would render the Beneficiary in violation of income or resource limitations set forth by any Governmental Assistance program that may be currently or in the future providing goods or services to the Beneficiary. The
14
Trustee may refuse to make a disbursement when to do so would place the Beneficiary at risk of being in whole or in part disqualified from services and the Trustee may refuse to make a disbursement on behalf of a Beneficiary for goods or services that any private entity or public agency is obligated to provide to or on behalf of a Beneficiary who does not receive such benefits, but who otherwise qualifies to receive such benefits. Section 13.5: Payment to Third Party Vendors The Trustee is authorized, at its sole and unqualified discretion, to pay directly any third party vendor who provides allowable goods or services to or on behalf of the Beneficiary. However, Trustee is required to take into consideration how such third-party payments will affect Beneficiary's continuing eligibility for means-tested governmental assistance and shall not do so if prohibited by the state of Indiana, to the extent that such prohibition is in compliance with applicable federal law. Article Fourteen Distributions upon The Beneficiary's Death Upon the actual death of the Beneficiary, the termination of the trust shall be governed by 42 U.S.C. §1396p(d)(4)(C); SSI P.O.M.S. SI §01120.203.B.2.g; SSI P.O.M.S. SI §01120.203.B.3; and 405 LA.C. §2-3-22(i)(3). Accordingly, to the extent that assets are not retained by the trust, the Indiana Family and Social Services Administration (and any other state in its proportionate share as set forth below) shall be first payee up to the full amount that the Indiana Family and Social Services Administration has spent on behalf of the Beneficiary during the Beneficiary'S lifetime, both before and after the creation of this trust, and shall have priority of payment over any other debts and administrative expenses, except those listed in SSA P.O.M.S. SSI SI §01120.203.B.3.a; provided, however, that the trust shall not retain more than fifty percent (50%) of any assets remaining in the Beneficiary'S trust Sub-Account upon the death of the individual Beneficiary. Any assets retained by the trust pursuant to 42 U.S.C. §1396p(d)(4)(C) shall be used for the direct or indirect benefit of other beneficiaries of the trust; in furtherance of the trust's charitable mission; to add disabled persons, as defined in 42 U.S.C. §1382(c)(a)(3), who are indigent, as Beneficiaries of the trust; or to provide disabled persons, as defined in 42 U.S.C. §1382c(a)(3), with equipment, medication, or other such services deemed suitable for such persons by the trustee. If the Beneficiary has received Medicaid benefits in more than one state, each state that has provided benefits shall be repaid. If there is an insufficient amount left in the Beneficiary'S Sub-Account upon his or her death to cover all benefits paid from all states, then each state shall be paid its proportionate share of the amount remaining in the Beneficiary'S Sub-Account at the time of his or her death, based on the monetary value of the support provided by each state.
15
If any assets remain in the Beneficiary's trust Sub-Account after the Indiana Family and Social Services Administration (and any other state in its proportionate share) has been reimbursed for the full amount that it has expended on behalf of the Beneficiary during the Beneficiary's lifetime, such balance shall be forwarded to the Secondary Remainder Beneficiary(ies) designated in the Beneficiary's Joinder Agreement. Article Fifteen General Provisions Section 15.1: No Bond Required No bond requirement shall be placed upon the Trustee or any Co-Trustee as a condition precedent to the execution of the Trustee's or Co-Trustee's duties hereunder. If such bond may be required by a court of competent jurisdiction or by operation of law, such bond expense is deemed an extraordinary administrative expense and an appropriate expense required to fulfill the purpose of the Trust and no surety shall be required on such bond, except as by operation of law. Section 15.2: Freedom from Court Supervision The Trust shall be free from court supervision and the Trustee is authorized to act, in its sole and unqualified discretion, without recourse to any court. However, at the Trustee's sole and unqualified discretion, the Trustee may seek guidance and instruction from a court of competent jurisdiction. To that end, formal judicial intervention may be initiated by the Trustee, and such action by the Trustee shall be deemed a proper expense in furtherance of the defense of the Trust and/or the Beneficiary's individual trust SubAccount. Section 15.3: Choice of Law The Trustee of this Trust is a corporation organized under the laws of the state of Indiana and having its principle place of business in the state of Indiana. The situs of this trust shall be within the state of Indiana. The Principle Place of Administration of this Trust shall be Marion County, Indiana. Trust property hereunder shall be custodied and managed within the state of Indiana. Accordingly, this Declaration of Trust and its accompanying Joinder Agreement shall be governed and interpreted under the trust statutes and regulations, banking statutes and regulations, not-for-profit statutes and regulations, corporate organization statutes and regulations, and financial statutes and regulations of the State of Indiana. In light of the fact that this trust is calculated to comply with the laws and guidelines of the State of Indiana as such laws and guidelines govern fmancial eligibility requirements for Indiana's Medicaid program, the laws and guidelines of the State of Indiana governing the fmancial eligibility requirements of a Medicaid recipient or applicant shall be applied when evaluating whether or not assets placed in this trust will or will not be counted as a resource against individual Beneficiaries hereunder for the purposes of
16
Medicaid eligibility, but only to the extent that said laws and guidelines of the State of Indiana governing the fmancial eligibility requirements of a Medicaid recipient or applicant do not violate federal law. Additionally, the laws of the State of Indiana governing disbursements and distributions from, and the termination of, this trust and their effect on the continuing eligibility of individual Beneficiaries hereunder shall control-but only to the extent that said laws governing the disbursements and distributions from, and the termination of, this trust do not violate or ignore federal law or otherwise place unreasonable restrictions on the use of this trust which are calculated to circumvent or ignore the purpose and intent of applicable federal enabling legislation or regulation as set forth in the United States Code and/or the United States Code of Federal Regulations and reflected in the Social Security Administration's P.O.M.S. Section 15.4: Severability Any article, section, clause, or provision contained in this Declaration of Trust that is adjudicated, ruled, deemed, or otherwise declared to be invalid, void, voidable or otherwise unenforceable under the laws of any jurisdiction under which the terms of the Declaration of Trust are or are sought to be executed shall be deemed void and inoperative, but such voidance and/or inoperation of any single article, section, clause or provision contained herein shall not invalidate any other article, section, clause, or provision elsewhere in this Declaration of Trust. Section 15.5: Amendments No amendments other than to comply with state or federal law shall be made by any party, including the Trustee. Trustee is specifically prohibited from making any amendments that would affect this Trust's status as an irrevocable trust and is further prohibited from making any amendments that would cause this Trust to be construed as "available" to the Beneficiary. However, this Declaration of Trust and the Trust that it creates may be amended from time to time in order to effectuate the purpose of the Trust and to maintain conformity and compliance with applicable state and federal statutes and regulations and any interpretations thereof, and applicable common law. Section 15.6: Voidance ab initio The Beneficiary hereunder and the Trustee have every intention of complying with the letter and the spirit of applicable law-to the extent that applicable state laws/regulations/guidelines do not violate, ignore, or circumvent applicable federal enabling legislations/regulations/guidelines. To the extent that any provision contained within this Declaration of Trust, or the Joinder Agreement that incorporates it by reference, is deemed by any governmental authority to invalidate, reduce or disqualify any Beneficiary from eligibility for governmental assistance, said provision shall be interpreted in its broadest sense, or limited in scope, or rendered void ab initio to the extent necessary to avoid Beneficiary'S disqualification from, or reduction in, Governmental Assistance.
17
--------------
--
-
--------------------------------------
Section 15.7: Article And Section Headings Article and Section Headings are provided for the purpose of convenience and clarity only and shall have no bearing on the interpretation of any provision of this Declaration of Trust. Section 15.8: Compensation of Trustee and Co-TrusteeCs), If Any Trustee and Co- Trustee( s), if any, shall be entitled to reasonable compensation for the services rendered and for reimbursement for expenses reasonably and properly incurred on behalf of the Grantor/Beneficiary in the administration of the Trust. Such compensation shall be made in accordance with the explanation of fees set forth in the Grantor/Beneficiary's Joinder Agreement. Section 15.9: Full Consideration for Assets No authority set forth in this Declaration of Trust or provided for by operation of law shall be construed to allow the Trustee to purchase, exchange, or otherwise dispose of Trust property for less than adequate or full consideration or to allow any person or entity to borrow money from the Trust without adequate interest or security. Section 15.10: Indemnification The Trustee and Co- Trustee( s) (if any) and each of its agents, independent contractors, board members, directors, employees, as well as all heirs and legal or personal representatives of the same, are hereby indemnified by the Trust and the Trust property against the following: 1.
any and all claims, actions, suits, liabilities, fmes or penalties; and
2.
all costs, fees and legal expenses, including attorney's fees, settlements imposed upon, asserted against, or reasonably incurred by the Trustee or Co- Trustee(s) arising in connection with any claim, demand, action, suit, or proceeding in which the indemnified person or company may be involved by virtue of being or having been independently contracted by the Trustee or Co-Trustee(s), employed by the Trustee, or affiliated in any way with the Trustee or Co-Trustees(s) as set forth above, whether or not he, she, or it shall have continued to serve as such at the time of incurring such claims, liabilities, fmes, penalties, costs, or expenses or at the time of being subjected to the same. However, the Trustee and each of its Co-Trustees (if any), agents, and employees, including the heirs, successors, assigns, and personal representatives of its agents, shall not be indemnified with respect to matters as to which the indemnified person shall be finally adjudicated to have been guilty of wanton or willful misconduct in the performance of
18
any duty by a court of competent jurisdiction. This right of indemnification shall not exclude or supersede other rights to which the Trustee and each of its Co-Trustees (if any), agents, independent contractors and employees, including the heirs, successors, assigns, and personal representatives of its agents, may be entitled as a matter of law or otherwise. Section 15.11: Trustee Not Liable for Acts Made in Good Faith By execution of the accompanying Joinder Agreement, GrantorlBeneficiary acknowledges that the law in his or her state may be unsettled regarding certain issues affecting the creation and/or administration of the Declaration of Trust and his or her trust Sub-Account. Grantor/Beneficiary agrees and acknowledges that Trustee and/or CoTrustee(s) shall not be liable for making a disbursement or refusing to make a disbursement based on a good faith interpretation of the statutes, regulations, guidelines, common law, or other rules in the Beneficiary's state. GrantorlBeneficiary recognizes and understands that different government personnel may interpret the laws and/or guidelines of the state in an unexpected manner and that there is little or no precedent regarding many issues affecting special needs trust administration in many states. To that end, Grantor Beneficiary holds harmless Trustee and Co- Trustee( s) for acts of administration made in good faith that are reasonably calculated to comply with the law of GrantorlBeneficiary's state or a reasonable and customary interpretation thereof. However, Trustee and/or Co-Trustee(s) shall be liable to the Grantor/Beneficiary for intentional misconduct, intentional or grossly negligent disregard of applicable law, willful and wanton behavior, gross negligence, or any act or omission made in bad faith. Finally, Trustee and/or Co-Trustee(s) shall not be liable to the Beneficiary for damages, real or perceived, arising out of the failure on the part of GrantorlBeneficiary adequately to inform the Trustee and/or Co-Trustee(s) of Governmental Assistance that the Grantor Beneficiary receives or to which Grantor/Beneficiary has applied.
any the any the
Article Sixteen Termination of Trust or Trust Sub-Accounts Section 16.1: Liability of Trust or Sub-Account for Basic Maintenance If the Trustee has reasonable cause to believe that the Trust or trust income or principal is or may become liable for basic maintenance, support, medical, dental, and therapeutic care, or any other appropriate care or service for any Beneficiary that has been or would otherwise be provided by local, state, or federal government or agency or department thereof, the Trustee shall continue to administer the Beneficiary'S trust Sub-Account, taking into consideration the tax, Medicaid, and other public benefit consequences of any particular disbursement to the Beneficiary; or may, in it absolute, sole and unqualified discretion, transfer the assets in the Beneficiary'S trust Sub-Account, Trustee to Trustee
19
--
--
-----------------------------------------
in-kind, to a qualified private or geographically appropriate and qualified not-for-profit pooled special needs trust. In no way whatsoever shall such an event render this trust revocable, terminated or otherwise available to the Beneficiary. Section 16.2: Rule Against Perpetuities This Trust shall terminate on January 1, 2095. At its termination, the Trustee shall distribute all Trust Property to The National Foundation for Special Needs Integrity, Inc., or its successor(s) in name and/or interest. The National Foundation for Special Needs Integrity, Inc., or its successor(s) in name and/or interest shall create a new Declaration of Trust immediately following the termination of this Trust, contributing to the new Trust all property distributed to The National Foundation for Special Needs Integrity, Inc. or its successor(s) in name and/or interest from the terminating Trust. The new Trust shall have a termination date and, with the one exception of the new termination date, shall have identical terms as this Declaration of Trust, with the same GrantorlBeneficiaries having benefits from the same Trust Sub-Accounts as the terminating Trust. Section 16.3: Trustee Resignation And Successor Trustees The Trustee may resign upon written notice to all Beneficiaries and to the Co-Trustee(s) (if any). Upon any such resignation, the Trustee shall designate a successor Trustee. The Successor Trustee shall assume its duties under this Declaration of Trust without any liability for the acts or omissions of any predecessor Trustee. This paragraph shall also control if the Trustee ceases to exist, is dissolved, or can no longer serve as Trustee for any other reason. In conjunction with any action taken under this paragraph, a final accounting shall be made by the Trustee to the Beneficiaries and to the Co-Trustee(s) (if any).
The balance of this page twenty (20) has been intentionally left blank.
III
SpeCial-NeedS Integrity, Inc.
20
IN WITNESS WHEREOF, the undersigned have executed this Declaration of Trust to be effective as of the day and year written below for the adoption of this Declaration of Trust. a ion for Special Needs Integrity, Inc.,
)
STATE OF INDIANA COUNTY OF
) ss.
t/aryuljo{'rv
)
Before me, the undersigned, a Notary Public in and for said County and State, personally appeared The National Foundation for ~pecial *eds In,tegrity, Inc. by and through its duly authorized representative, ~ ,who ['W: is personally known to me, or, who [ ] produced as identification, and acknowledged the execution of the above and foregoing Declaration of Trust. IN ~~ day of
~
WHEREOF, I do hereby set my hand and notarial seal as of the ,2009.
LlS;\ M. PELLAM SEAL Notary Public, State of Indiana My Commission Expires Feb. 19,2014
d,&jA,
Notary Public
£tSCL iii jam Printed Name of Notary Public
My Commission expires: My County of Residence is:
-tlort/
Fl- ~ ~()/U
iii
Special Needs Integnty~inc.
21
