Read 1st time January 11, 1996, and 1,000 copies ordered printed.

Read 2nd time January 22, 1996, and referred to the Committee on Aging, Families and Mental Health.

Reported from the Committee February 19, 1996, with recommendation that the bill do pass and be placed on the Consent Calendar.

Taken up for February 28, 1996. Read 3rd time and placed upon its final passage; bill passed.

TERRY L. SPIELER, Secretary.

S2892.01P

To repeal sections 402.215 and 473.657, RSMo 1994, relating to Missouri family trust, and to enact three new sections relating to the same subject.

Be it enacted by the General Assembly of the State of Missouri, as follows:

Section A. Sections 402.215 and 473.657, RSMo 1994, are repealed and three new sections enacted in lieu thereof, to be known as sections 402.215, 473.657 and 475.093, to read as follows:

402.215. 1. The board of trustees is authorized and directed to establish and administer the Missouri family trust. The board shall be authorized to execute all documents necessary to establish and administer the trust including the formation of a not for profit corporation created pursuant to chapter 355, RSMo, and to qualify as an organization pursuant to section 501(c)(3) of the United States Internal Revenue Code.

2. The trust documents shall include and be limited by the following provisions:

(1) The Missouri family trust fund shall be authorized to accept contributions from any source including trustees, personal representatives, personal custodians under chapter 404, RSMo, and other fiduciaries, other than directly from the life beneficiaries and their respective spouses, to be held, administered, managed, invested and distributed in order to facilitate the coordination and integration of private financing for individuals who have a handicap or are eligible for services provided by the Missouri department of mental health, or both, while maintaining the eligibility of such individuals for government entitlement funding. All contributions, and the earnings thereon, shall be administered as one trust fund; however, separate accounts shall be established for each designated beneficiary. The income earned, after deducting administrative expenses, shall be credited to the accounts of the respective life beneficiaries in proportion to the amount of the contribution made for each such life beneficiary, reduced from time to time by any distributions or encroachments, to the total contributions, reduced from time to time by any distributions or encroachments, made for all life beneficiaries.

(2) Every donor may designate a specific person as the life beneficiary of the contribution made by such donor. In addition, each donor may name a cotrustee, including the donor, and a successor or successors to the cotrustee, to act with the trustees of the trust on behalf of the designated life beneficiary; provided, however, a life beneficiary shall not be eligible to be a cotrustee or a successor cotrustee; provided, however, that court approval of the specific person designated as life beneficiary and as cotrustee or successor trustee shall be required in connection with any trust created pursuant to section 473.657 or 475.093, RSMo.

(3) The trust, with the consent of the cotrustee, shall annually agree on the amount of income or principal or income and principal to be used to provide noncash benefits and the nature and type of benefits to be provided for the life beneficiary. Any net income which is not used shall be added to principal annually. In the event that the trust and the donor, serving as the cotrustee, shall be unable to agree either on the amount of income or principal or income and principal to be used for or the benefits to be provided, then none of the income or principal shall be used. In the event that the trust and the cotrustee, other than the donor, shall be unable to agree either on the amount of income or principal or income and principal to be used or the benefits to be provided, then either the trust or the cotrustee shall have the right to request that the matter be resolved by arbitration. The requesting party shall send a written request for arbitration to the responding party and shall in such request set forth the name, address and telephone number of such requesting party's arbitrator. The responding party shall, within ten days after receipt of the request for arbitration, set forth in writing to the requesting party the name, address and telephone number of the responding party's arbitrator. Copies of the request for arbitration and response shall be sent to the director of the department. If the two designated arbitrators shall be unable to agree upon a third arbitrator within ten days after the responding party shall have identified such party's arbitrator, then the director of the department shall designate the third arbitrator by written notice to the requesting and responding parties' arbitrators. The three arbitrators shall meet and render a decision within thirty days after the appointment of the third arbitrator. A decision of a majority of the arbitrators shall be binding upon the requesting and responding parties. Each party shall pay the fees and expenses of such party's arbitrator and the fees and expenses of the third arbitrator shall be borne equally by the parties.

(4) Any donor, during his lifetime, except for a trust created pursuant to section 473.657 or 475.093, RSMo, may revoke any gift made to the trust; provided, however, any donor may, at any time, voluntarily waive the right to revoke. In the event that at the time the donor shall have revoked his gift to the trust the life beneficiary shall not have received any benefits provided by use of trust income or principal, then an amount equal to one hundred percent of the original contribution shall be returned to the donor. Any undistributed net income shall be distributed to the charitable trust. In the event that at the time the donor shall have revoked his gift to the trust the life beneficiary shall have received any benefits provided by the use of trust income or principal, then an amount equal to ninety percent of the original contribution, reduced by any distributions or encroachments of principal previously made, shall be returned to the donor. The balance of the original contribution, as reduced, together with all undistributed net income, shall be distributed to the charitable trust.

(5) Any acting cotrustee, except a cotrustee of a trust created pursuant to section 473.657 or 475.093, RSMo, other than the original donor of a life beneficiary's account, shall have the right, for good and sufficient reason upon written notice to the trust and the department stating such reason, to withdraw all or a portion of the original contribution, reduced by any distributions or encroachments of principal previously made. In such event, the applicable portion, as set forth below, of the original contribution, as reduced by distributions or encroachments previously made for the benefit of the life beneficiary, shall then be distributed to the successor trust and the balance of the original contribution, as reduced, together with any undistributed net income, shall be distributed to the charitable trust.

(6) In the event that a life beneficiary for whose benefit a contribution or contributions shall have been made to the family trust fund, except a cotrustee of a trust created pursuant to section 473.657 or 475.093, RSMo, shall move from the state of Missouri or otherwise cease to be eligible for services provided by the department of mental health and neither the donor nor the then acting cotrustee shall revoke or withdraw all of the original contribution, then the board of trustees may, by written notice to such donor or acting cotrustee, terminate the trust as to such beneficiary and thereupon shall distribute the applicable portion, as set forth herein, of the original contribution, to the trustee of the successor trust to be held, administered and distributed by such trustee in accordance with the provisions of the successor trust described in subdivision (9) of this subsection.

(7) If at the time of withdrawal or termination as provided in subdivision (6) of this subsection of a life beneficiary's account from the trust either the life beneficiary shall not have received any benefits provided by the use of the trust income or principal or the life beneficiary shall have received benefits provided by the use of trust income or principal for a period of not more than five years from the date a contribution shall have first been made to the trust for such life beneficiary, then an amount equal to ninety percent of the original contribution, reduced by any distributions or encroachments of principal previously made, shall be distributed to the successor trust, and the balance of the original contribution, as reduced, together with all undistributed net income, shall be distributed to the charitable trust; provided, however, if the life beneficiary at the time of such withdrawal by the cotrustee or termination as provided above shall have received any benefits provided by the use of trust income or principal for a period of more than five years from the date a contribution shall have first been made to the trust for such life beneficiary, then an amount equal to seventy-five percent of the original contribution, reduced by any distributions or encroachments of principal previously made, shall be distributed to the successor trust, and the balance of the original contribution, as reduced, together with all undistributed net income, shall be distributed to the charitable trust.

(8) Subject to the provisions of subdivision (9) of this subsection, if the life beneficiary dies before receiving any benefits provided by the use of trust income or principal, then an amount equal to one hundred percent of the original contribution shall be distributed to such person or persons as the donor shall have designated. Any undistributed net income shall be distributed to the charitable trust. If at the time of death of the life beneficiary, the life beneficiary shall have been receiving benefits provided by the use of trust income or principal or income and principal, then, in such event, an amount equal to seventy-five percent of the original contribution, reduced by any distributions or encroachments of principal previously made, shall be distributed to such person or persons as the donor designated, and the balance of the original contribution, as reduced, together with all undistributed net income, shall be distributed to the charitable trust.

(9) In the event the trust is created as a result of a distribution from a personal representative of an estate of which the life beneficiary is a distributee, then if the life beneficiary dies before receiving any benefits provided by the use of trust income or principal, an amount equal to one hundred percent of the original contribution shall be distributed to such person or persons who are the life beneficiary's heirs at law. The balance, if any, of the original contribution, together with all undistributed income shall be distributed to the charitable trust. If at the time of death of the life beneficiary the life beneficiary shall have been receiving benefits provided by the use of trust income or principal or income and principal, then, an amount equal to seventy-five percent of the original contribution, reduced by any distributions or encroachments of principal previously made, shall be distributed to such person or persons who are the life beneficiary's heirs at law. The balance of the original contribution, together with all undistributed income shall be distributed to the charitable trust.

(10) In the event the trust is created as a result of the recovery of damages by reason of a personal injury to the life beneficiary, then if the life beneficiary dies before receiving any benefits provided by the use of trust income or principal, the state of Missouri shall receive all amounts remaining in the trust up to an amount equal to the total medical assistance paid on behalf of such life beneficiary under a state plan under Title 42 of the United States Code, and then to the extent there is any amount remaining in the trust, an amount equal to one hundred percent of the original contribution shall be distributed to such person or persons who are the life beneficiary's heirs at law. The balance, if any, of the original contribution, together with all undistributed income shall be distributed to the charitable trust. If at the time of death of the life beneficiary the life beneficiary shall have been receiving benefits provided by the use of trust income or principal or income and principal then the state of Missouri shall receive all amounts remaining in the trust up to an amount equal to the total medical assistance paid on behalf of such life beneficiary under a state plan under Title 42 of the United States Code, and then to the extent there is any amount remaining in the trust, an amount equal to seventy-five percent of the original contribution, reduced by any distributions or encroachments of principal previously made, shall be distributed to such person or persons who are the life beneficiary's heirs at law. The balance of the original contribution, together with all undistributed income, shall be distributed to the charitable trust.

[(9)] (11) Upon receipt of a notice of withdrawal from a designated cotrustee, other than the original donor, and a determination by the board of trustees that the reason for such withdrawal is good and sufficient, or upon the issuance of notice of termination by the board of trustees, the board of trustees shall distribute and pay over to the designated trustee of the successor trust the applicable portion of the original contribution, reduced by any distributions or encroachments of principal previously made for the benefit of the beneficiary; provided, however, that court approval of distribution to a successor trustee shall be required in connection with any trust created pursuant to section 473.657 or 475.093, RSMo. The designated trustee of the successor trust shall hold, administer and distribute the principal and income of the successor trust, in the discretion of such trustee, for the maintenance, support, health, education and general well-being of the beneficiary, recognizing that it is the purpose of the successor trust to supplement, not replace, any government benefits for the beneficiary's basic support to which such beneficiary may be entitled and to increase the quality of such beneficiary's life by providing him with those amenities which cannot otherwise be provided by public assistance or entitlements or other available sources. Permissible expenditures include, but are not limited to, more sophisticated dental, medical and diagnostic work or treatment than is otherwise available from public assistance, private rehabilitative training, supplementary education aid, entertainment, periodic vacations and outings, expenditures to foster the interests, talents and hobbies of the beneficiary, and expenditures to purchase personal property and services which will make life more comfortable and enjoyable for the beneficiary but which will not defeat his eligibility for public assistance. Expenditures may include payment of the funeral and burial costs of the beneficiary. The designated trustee, in his discretion, may make payments from time to time for a person to accompany the beneficiary on vacations and outings and for the transportation of the beneficiary or of friends and relatives of the beneficiary to visit the beneficiary. Any undistributed income shall be added to the principal from time to time. Expenditures shall not be made for the primary support or maintenance of the beneficiary, including basic food, shelter and clothing, if, as a result, the beneficiary would no longer be eligible to receive public benefits or assistance to which the beneficiary is then entitled. After the death and burial of the beneficiary, the remaining balance of the successor trust shall be distributed to such person or persons as the donor shall have designated.

[(10)] (12) The charitable trust shall be administered as part of the family trust fund, but as a separate account. The income attributable to the charitable trust shall be used to provide benefits for individuals who have a handicap or who are eligible for services provided by or through the department and who either have no immediate family or whose immediate family, in the reasonable opinion of the trustees, is financially unable to make a contribution to the trust sufficient to provide benefits for such individuals, while maintaining such individuals' eligibility for government entitlement funding. As used in this section, the term immediate family" includes parents, children and siblings. The individuals to be beneficiaries of the charitable trust shall be recommended to the trustees by the department and others from time to time. The trustees and the department shall annually agree on the amount of charitable trust income to be used to provide benefits and the nature and type of benefits to be provided by or through the department for each identified beneficiary of the charitable trust. Any income not used shall be added to principal annually.

473.657. 1. Distribution to any distributee may be made to the distributee himself or to a person holding a power of attorney, properly authenticated and executed by the distributee in accordance with the law of the place of execution, or to his personal representative, guardian, or conservator.

2. Distribution may be made to the trustees of a trust established pursuant to sections 402.199 to 402.225, RSMo, if the court finds that such distribution would be in the best interest of the distributee as prescribed by section 475.093, RSMo.

475.093. 1. The court may authorize the establishment of a trust for the benefit of a protectee if it finds that the protectee qualifies as a life beneficiary pursuant to section 402.205, RSMo, and that the establishment of such a trust would be in the protectee's best interest.

2. A trust may be established in the best interest of the protectee pursuant to sections 402.199 to 402.225, RSMo, notwithstanding the fact that a sum not exceeding twenty-five percent of the original contribution as defined in subdivision (7) of section 402.200, RSMo, will be distributed to the charitable trust as prescribed by section 402.215, RSMo.