Wednesday, September 27, 2017
A special needs trust does not allow for a beneficiary to control trust assets or distributions; these powers are reserved solely to the trustee. This can be problematic if the trustee is unable to adhere to their fiduciary responsibilities, whether it be from incompetence or fraud. Generally, in severe enough cases, a beneficiary of a special needs trust can petition the court to have the trustee removed. A particular issue for beneficiaries of special needs trusts is that many may not have the legal competence required to bring such a claim. Where the capacity of the beneficiary may be an obstacle to removing a dishonest trustee, it is important for settlors to include language in the trust instrument to accommodate this situation.
See Can the Beneficiary of a Special Needs Trust Change the Trustee?, Academy of Special Needs Planners, August 7, 2017.