Bill Text: MO HB469 | 2011 | Regular Session | Introduced
Bill Title: Changes the laws regarding the Missouri Family Trust
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2011-04-12 - Referred: Judiciary (H) [HB469 Detail]
Download: Missouri-2011-HB469-Introduced.html
FIRST REGULAR SESSION
96TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE FRANZ.
1421L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 402.199, 402.200, 402.205, 402.210, 402.215, 402.217, 402.220, 473.657, and 475.093, RSMo, and to enact in lieu thereof twelve new sections relating to the Missouri family trust.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 402.199, 402.200, 402.205, 402.210, 402.215, 402.217, 402.220, 473.657, and 475.093, RSMo, are repealed and twelve new sections enacted in lieu thereof, to be known as sections 402.199, 402.200, 402.201, 402.202, 402.203, 402.204, 402.205, 402.206, 402.207, 402.208, 473.657, and 475.093, to read as follows:
402.199. 1. The general assembly hereby finds and declares the following:
(1) It is an essential function of state government to provide basic support and services for certain persons with [a mental or physical impairment that substantially limits one or more major life activities, whether the impairment is congenital or acquired by accident, injury or disease] disabilities;
(2) [The cost of providing basic support for persons with a mental or physical impairment is difficult for many to afford and they are forced to] Many persons with disabilities lack financial resources and must rely upon the government to provide [such] services and support; and
(3) [Families and friends of persons with a mental or physical impairment desire to supplement, but not replace, the basic support provided by state government and other governmental programs;
(4) The cost of medical, social or other supplemental services is often provided by families and friends of persons with mental or physical impairments, for the lifetime of such persons;
(5)] It is in the best interest of the [people of this] state and is necessary and desirable for the public health, safety, and welfare to encourage, enhance and foster the ability of [families and friends of Missouri residents and residents of adjacent states with mental or physical impairments to supplement, but not to replace, the basic support provided by state government and other governmental programs and to provide for medical, social or other supplemental services for such persons;
(6) Permitting and assisting families and friends of Missouri residents and residents of adjacent states with mental or physical impairments to supplement, but not to replace, the basic support provided by state government and other governmental programs and to provide medical, social or other supplemental services for such persons as necessary and desirable for the public health, safety and welfare of this state] individuals with disabilities who reside in Missouri or who reside in one of the eight states adjacent to Missouri, and in the best interests of their families and friends to supplement, but not replace, the services and support provided by state government and other governmental programs.
2. In light of the findings and declarations described in subsection 1 of this section, the general assembly hereby declares [the purpose of the Missouri family trust to be the encouragement, enhancement and fostering of the provision of medical, social or other supplemental services for persons with a mental or physical impairment by family and friends of such persons] that contributions to a trust account administered as part of the Missouri family trust by the Missouri family trust board of trustees as authorized in sections 402.199 to 402.208, shall in no way reduce, impair, or diminish the benefits to which the beneficiary of the trust account is otherwise entitled by law, nor shall the administration of the Missouri family trust or any trust account therein be taken into consideration in determining appropriations for programs or services for persons with disabilities, and unless otherwise prohibited by federal statutes or regulations, all state agencies shall disregard the trust account as a resource when determining the eligibility of a resident for assistance under chapter 208.
402.200. As used in sections 402.199 to [402.220] 402.208, the following terms mean:
(1) "Beneficiary", also referred to as "life beneficiary", a person who:
(a) Has been determined to have a disability or to be a disabled person;
(b) Is a resident of Missouri or one of the eight states adjacent to Missouri; and
(c) Is the person designated as the sole, primary beneficiary of a trust account administrated as part of the Missouri family trust by the board of trustees;
(2) "Board of trustees"[, the Missouri family trust board of trustees] or "board" or "Missouri family board of trustees", the body corporate and instrumentality of the state, established as the Missouri family trust board of trustees under section 402.201;
[(2)] (3) "Charitable trust", [the trust to provide benefits for] an account established and administered as part of the Missouri family trust for the benefit of disabled individuals, as [set forth] provided in section [402.215] 402.207;
(4) "Co-trustee", that person designated by the settlor to act together with the trustee as co-trustee of a trust account;
[(3)] (5) "Department", the department of mental health;
[(4)] (6) "Disability"[,] :
(a) A mental or physical impairment that substantially limits one or more major life activities, whether the impairment is congenital or acquired by accident, injury or disease, and where the impairment is verified by medical findings; or
(b) As is defined in section 1614(a)(3) of the Social Security Act, 42 U.S.C. 1382c(a)(3);
[(5) "Life beneficiary" or "beneficiary", a designated beneficiary of the Missouri family trust;
(6)] (7) "Missouri family trust" or "trust", the trust established under section 402.202 and administered by the board of trustees, as trustee, under sections 402.199 to 402.208;
(8) "Net income", the earnings received on investments less administrative expenses and fees;
[(7)] (9) "Principal balance", the fair market value of all contributions made to a particular account, less distributions, determined as of the end of the calendar month immediately preceding the occurrence giving rise to any determination of principal balance;
[(8) "Requesting party", the party desiring arbitration;
(9) "Responding party", the other party in arbitration of a dispute regarding benefits to be provided by the trust;]
(10) "Remainder beneficiaries", the person or persons designated to receive the applicable portion of the principal balance of a trust account remaining after the death of the beneficiary;
(11) "Restricted account", an account established and administered as part of the trust for the benefit of persons with disabilities as provided in section 402.206;
(12) "[Successor] Standby trust", the trust established upon distribution of a trust account by the board of trustees pursuant to notice of withdrawal or termination and administered as set forth in subsection 3 of section [402.215] 402.205;
[(11)] (13) "Trust account", an account established and administered as part of the Missouri family trust [established pursuant to] for the benefit of a beneficiary as provided in sections [402.200 to 402.220] 402.203 and 402.204;
[(12)] (14) "Trustee", [a member of the Missouri family trust] the board of trustees acting in its capacity as trustee of a trust account, the charitable trust, or a restricted account as used in section 402.201.
402.201. 1. There is hereby created the "Missouri Family Trust Board of Trustees", which shall be a body corporate and an instrumentality of the state, and which shall be incorporated as a Missouri general not for profit corporation. The board of trustees is authorized to apply for and qualify for recognition as an exempt organization under section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended.
2. The board of trustees shall consist of nine members who are natural persons appointed by the governor with the advice and consent of the senate. The members' terms of office shall be three years and until their successors are appointed and qualified. The members shall be persons who are not prohibited from serving by sections 105.450 to 105.482. The board shall be composed of the following:
(1) Three members of the immediate family of persons who have a disability of mental illness. The department's state advisory council for comprehensive psychiatric services, created under section 632.020, shall submit a panel of nine proposed members of the board to the governor, from which the governor shall appoint three. One shall be appointed for a term of one year, one for two years, and one for three years. Thereafter, as the term of a member of the board appointed under this subdivision expires each year, the state advisory council for comprehensive psychiatric services shall submit to the governor a panel of not less than three nor more than five proposed members of the board of trustees, and the governor shall appoint one member from such panel for a term of three years;
(2) Three members of the immediate family of persons who have a developmental disability. The department's Missouri planning council for developmental disabilities, created under section 633.020, shall submit a panel of nine proposed members of the board to the governor, from which the governor shall appoint three. One shall be appointed for a term of one year, one for two years, and one for three years. Thereafter, as the term of a member of the board appointed under this subdivision expires each year, the Missouri planning council for developmental disabilities shall submit to the governor a panel of not less than three nor more than five proposed members of the board of trustees, and the governor shall appoint one member from such panel for a term of three years; and
(3) Three persons recognized for their expertise in general business matters and procedures. Of the three business persons to be appointed by the governor, one shall be appointed for one year, one for two years, and one for three years. Thereafter, as the term of a member of the board of trustees appointed under this subdivision expires each year, the governor shall appoint one business person as member for a term of three years.
3. As used in subdivisions (1) and (2) of subsection 2 of this section, "immediate family" includes spouse, parents, parents of spouse, children, spouses of children, and siblings.
4. No member of the board of trustees shall receive compensation for services as a member of the board. The board shall reimburse the members of the board for necessary expenses actually incurred in the performance of their duties.
5. The board of trustees shall be subject to the provisions of sections 610.010 to 610.029 and is considered a public governmental body under section 610.010.
6. The board of trustees shall annually prepare or cause to be prepared an accounting of funds administered by the board and shall transmit a copy of the accounting to the governor, the president pro tempore of the senate and the speaker of the house of representatives.
7. The board of trustees shall establish policies, procedures, and other rules and regulations necessary to implement the provisions of sections 402.199 to 402.208.
8. The board of trustees is authorized to advise, consult with, coordinate and render services to those departments, agencies, political subdivisions, and governmental instrumentalities of Missouri and of the states adjacent to Missouri, and those nonprofit organizations that qualify as organizations under Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, that provide services or support to persons with disabilities who are residents of Missouri or one of the states adjacent to Missouri.
9. The assets of the board of trustees shall not be considered state money, assets of the state or revenue for any purposes of the state constitution or statutes. The property of the board of trustees and its income and operations shall be exempt from all taxation by the state or any of its political subdivisions.
10. No trustee, co-trustee or successor co-trustee serving under the provisions of sections 402.200 to 402.208 shall at any time be held liable for any mistake of law or fact, or of both law and fact, or errors of judgment, nor for any loss sustained as a result thereof.
402.202. 1. Trust accounts, restricted trust accounts, and the charitable trust shall be held and administered in trust as the Missouri family trust. The charitable trust, the restricted accounts and the trust accounts shall each be maintained in trust as separate accounts, but may be pooled for purposes of investment and management. Assets of the Missouri family trust shall not be considered state money, assets of the state or revenue for any purposes of the state constitution or statutes.
2. The board of trustees shall act as the trustee of the Missouri family trust. The board of trustees, as trustee, shall administer the Missouri family trust under the provisions of sections 402.199 to 402.208 and pursuant to the policies, procedures, rules, and regulations of the board of trustees.
3. In addition to the powers and duties granted to the board under sections 402.199 to 402.208, in its capacity as trustee of the trust the board shall have all powers granted to trustees acting under chapter 456, as now in effect or hereafter amended; provided, that section 456.8-813 regarding the duty to inform and report to the beneficiaries shall not apply to the trust, except as mandated under section 456.1-105.
402.203. 1. A beneficiary who is a person with disabilities as defined in Section 1614(a)(3) of the Social Security Act 42 U.S.C. 1382c(a)(3), or the parent, grandparent, or legal guardian of a beneficiary, or a court, as settlor, may contribute assets of the beneficiary in trust to the board as trustee, for the benefit of the beneficiary as part of a pooled trust described by 42 U.S.C. Section 1396p(d)(4)(C). Upon such contribution, the settlor's completion and execution of trust documents provided by the trustee, and the trustee's review, approval and execution of the trust documents, a trust account for the beneficiary shall thereby be created. A trust account to which the assets of a beneficiary are contributed shall be referred to as a "First-Party Trust Account" and shall be held and administered in trust for the benefit of the beneficiary as provided in this section.
2. The settlor may designate a co-trustee, and a successor or successors to the co-trustee, to act together with the trustee as trustees of the first-party trust account; provided that the beneficiary may not act as a co-trustee or successor co-trustee; and provided further that court approval of the beneficiary, co-trustee or successor trustee shall be required in connection with any first-party trust account created under section 473.657 or section 475.093.
3. If the board determines, in its good faith judgment, that a co-trustee has breached his or her fiduciary duties, either as a result of an act of commission or omission, then the board may, by written notice to such co-trustee, remove such co-trustee and may appoint a successor co-trustee or serve as sole trustee.
4. At the death of the beneficiary, the board of trustees shall provide notice that the trust account has terminated to each state of which the board of trustees has knowledge that such state has provided medical assistance on behalf of the beneficiary under a state plan for medical assistance under Title 42 of the United States Code. After distribution of twenty-five percent of the principal balance of the trust account to the charitable trust, the board of trustees shall pay over and distribute to such states all amounts remaining in the trust account up to an amount equal to the total medical assistance paid by such states on behalf of the beneficiary under the state plan for medical assistance under Title 42 of the United States Code. In the event that the beneficiary has received medical assistance from more than one state with claims on the proceeds for reimbursement of medical assistance payments under Title 42 of the United States Code and there are insufficient assets to pay the entire balance due to each state then the proceeds shall be distributed to each state on a pro rata basis based upon each state's proportionate share of the total medical assistance paid by all states.
5. To the extent any amounts remain in the trust account after distribution to the charitable trust and the state or states for state reimbursement claims, the remainder shall be distributed to such person, entities, or organizations designated as remainder beneficiaries by the settlor in the trust documents. If any individual remainder beneficiary named by the settlor is not then living, then in the absence of contrary instruction in the trust documents completed by the settlor, such remainder beneficiary's distribution shall be made to such remainder beneficiary's heirs at law, as determined by the laws of the state of the beneficiary's residence at the time of the beneficiary's death.
402.204. 1. Any person, as settlor, except a beneficiary or a beneficiary’s spouse, may contribute assets not including assets of the beneficiary or the beneficiary's spouse in trust to the board as trustee, for the benefit of the beneficiary. Upon such contribution, the settlor's completion and execution of trust documents provided by the trustee, and the trustee's review, approval and execution of the trust documents, a trust account for the beneficiary shall thereby be created. A trust account to which assets that do not include assets of a beneficiary or of a beneficiary's spouse are contributed shall be referred to as a "third-party trust account", and shall be held and administered in trust for the benefit of the beneficiary as provided in this section.
2. The settlor may designate a co-trustee, and a successor or successors to the co-trustee, to act together with the trustee as trustees of the third-party trust account; provided that the beneficiary or the beneficiary's spouse may not act as co-trustee or successor co-trustee; and provided further that court approval of the beneficiary, co-trustee or successor trustee shall be required in connection with any third-party trust account created under subsection 2 of section 473.657.
3. If the board determines, in its good faith judgment, that a co-trustee has breached his or her fiduciary duties, either as a result of an act of commission or omission, then the board may, by written notice to such co-trustee, remove such co-trustee, appoint a successor co-trustee, or serve as sole trustee.
4. At the death of the beneficiary, the board of trustees shall promptly determine the principal balance of the trust account and, after payment of any expenses of the beneficiary as the board may authorize and all fees and expenses of the board, shall distribute to the persons, entities, or organizations designated by the settlor as remainder beneficiaries in the trust documents:
(1) An amount equal to one hundred percent of the principal balance if the beneficiary shall not have received any benefits provided by use of trust account income or principal; or
(2) An amount equal to seventy-five percent of the principal balance if the beneficiary shall have received any benefits provided by use of trust account income or principal; and
(3) Any principal not distributed under the provisions of subdivision (2) of this subsection, and any undistributed income shall be distributed to the charitable trust established under the provisions of section 402.207;
(4) If any individual remainder beneficiary named by the settlor is not then living, then in the absence of contrary instructions in the trust documents completed by the settlor, such remainder beneficiary's share shall be distributed to such remainder beneficiary's heirs at law, as determined by the laws of the state of the beneficiary's residence at the time of the beneficiary's death.
5. Notwithstanding the provisions of subsection 4 of this section to the contrary, the settlor may voluntarily agree that a smaller percentage of the principal balance in any trust account established by such settlor than is provided in subsection 4 of this section be distributed to the remainder beneficiaries designated in the trust documents; and that a corresponding larger percentage of the principal balance in such trust account be distributed either to the charitable trust or to a designated restricted account within the charitable trust.
402.205. 1. [The families, friends and guardians of persons who have a disability or are eligible for services provided by the department of mental health, or both, may participate in a trust which may supplement the care, support, and treatment of such persons pursuant to the provisions of sections 402.199 to 402.220. Neither the contribution to the trust for the benefit of a life beneficiary nor the use of trust income to provide benefits shall in any way reduce, impair or diminish the benefits to which such person is otherwise entitled by law; and the administration of the trust shall not be taken into consideration in appropriations for the department of mental health to render services required by law.
2. Unless otherwise prohibited by federal statutes or regulations, all state agencies shall disregard the trust as a resource when determining eligibility of Missouri residents for assistance under chapter 208.
3. The assets of the board of trustees and assets held in trust pursuant to the provisions of sections 402.199 to 402.220 shall not be considered state money, assets of the state or revenue for any purposes of the state constitution or statutes. The property of the board of trustees and its income and operations shall be exempt from all taxation by the state or any of its political subdivisions.] The settlor of a revocable third-party trust account or the co-trustee of a revocable third-party trust account if authorized by the settlor in the trust documents, upon written notice to the board and with the board's consent may, from time to time, withdraw such part of the trust account as the settlor or such authorized co-trustee may determine; provided, however, neither the settlor nor such authorized co-trustee may withdraw an amount that when aggregated with all withdrawals within the prior twelve months shall reduce the remaining principal balance of the trust account below the greater of the amount due the board, if the trust account had terminated at the time of such withdrawal or the minimum amount required by the board, from time to time, for an account.
2. The settlor of a revocable third-party trust account or the co-trustee of a revocable third-party trust account if authorized by the settlor in the trust documents, upon written notice to the board and with the board's consent may revoke and terminate the trust account. Upon receipt of such notice, the board shall promptly determine the principal balance of the trust account and after payment of all fees and expenses of the board shall distribute:
(1) In the case of revocation and termination by the settlor:
(a) An amount equal to one hundred percent of the principal balance to the settlor if the beneficiary shall not have received any benefits provided by use of trust account income or principal; or
(b) An amount equal to seventy-five percent of the principal balance to the settlor if the beneficiary shall have received any benefits provided by use of trust account income or principal; and
(c) Any principal not distributed under the provisions of paragraph (b) of this subdivision, and any undistributed income to the charitable trust;
(2) In the case of revocation and termination by an authorized co-trustee:
(a) An amount equal to one hundred percent of the principal balance shall be distributed to the trustees of the standby trust, if the beneficiary shall not have received any benefits provided by use of trust account income or principal, to be held, administered, and distributed in accordance with the provisions of subsection 3 of this section; or
(b) An amount equal to seventy-five percent of the then principal balance shall be distributed to the trustees of the standby trust, if the beneficiary shall have received any benefits provided by use of trust account income or principal, to be held, administered, and distributed in accordance with the provisions of subsection 3 of this section; and
(c) Any principal not distributed under the provisions of paragraph (b) of this subdivision, and any undistributed income shall be distributed to the charitable trust.
3. The trustee or trustees of the standby trust shall hold, administer, and distribute the principal and income of the standby trust, in the discretion of such trustee, for the support, health, education, and general well-being of the beneficiary during the beneficiary's life, recognizing that it is the purpose of the standby 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 the beneficiary those amenities which cannot otherwise be provided by public assistance or entitlements or other available sources. Permissible expenditures include, but are not limited to, those described in subdivision (2) of section 402.206.
402.206. Each first-party trust account and third-party trust account shall be held and administered in trust as follows:
(1) The board of trustees shall hold, administer, and distribute the principal and income of the trust account, in the discretion of the trustee, in consultation with the co-trustee, for the health, education, and general well-being of the beneficiary, recognizing that the purpose of the trust account is to supplement, not replace, any government benefits for the beneficiary's basic support to which such beneficiary may be entitled;
(2) Expenditure of trust account funds shall be made solely for benefit of the beneficiary, to increase the quality of the beneficiary's life by providing those amenities that cannot otherwise be provided by public assistance or entitlements or other available sources. Permissible expenditures include, but are not limited to, dental, medical, and diagnostic work or treatment that is not otherwise available from public benefits or 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 that will make life more comfortable and enjoyable for the beneficiary but that will not defeat his or her eligibility for public benefits or assistance. The trustee, with consultation of the co-trustee, may make payments 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;
(3) Expenditures of trust account funds shall not be made for the primary support or maintenance of the beneficiary, including basic food or shelter, if, as a result, the beneficiary would no longer be eligible to receive public benefits or assistance to which the beneficiary is then entitled;
(4) The co-trustee, with consent of the trustee, shall not less frequently than annually determine the amount of income or principal or income and principal which may be used to provide noncash benefits and the nature and type of benefits to be provided for the beneficiary. Any net income which is not used shall be added to the principal annually;
(5) In the event that the trustee and the co-trustee shall be unable to agree either on:
(a) The amount of income or principal to be used;
(b) The benefits to be provided; or
(c) The administration of the trust account,
then the co-trustee shall have the right to appeal the decision of the trustee in accordance with the rules and regulations established by the board.
402.207. 1. The board of trustees shall establish a charitable trust for the benefit of individuals with disabilities.
2. The board of trustees shall accept contributions to the charitable trust at the termination of trust accounts and other contributions from donors in accordance with policies and procedures adopted by the board of trustees.
3. The trustees shall as necessary determine the amount of income and principal of the charitable trust to be used to provide benefits for individuals with disabilities. Benefits provided shall only be those that have no negative effect on the individual's entitlement to government benefits. Any income not used to provide benefits shall be added to the principal annually.
4. Any person with the consent of the board of trustees may establish a restricted account within the charitable trust and may determine, with the consent of the board of trustees, the class of individuals eligible to be recipients of funds from the restricted account, so long as the eligible recipients are individuals with disabilities as set forth in section 402.200.
402.208. 1. The board may establish and collect fees for administering trust accounts established under the provisions of sections 402.199 to 402.220.
2. The board shall establish policies and procedures for providing periodic reports to the co-trustees of each trust account established under the provisions of sections 402.199 to 402.220.
3. (1) No beneficiary shall have any vested or property rights or interests in any trust account, nor shall any beneficiary have the power to anticipate, assign, convey, alienate, or otherwise encumber any interest in the income or principal of any trust account.
(2) The income or the principal or any interest of any beneficiary in the trust account shall not be liable for any debt incurred by such beneficiary, nor shall the principal or income of any trust account be subject to seizure by any creditor or any beneficiary under any writ or proceeding in law or in equity.
4. Except for the right of a settlor to withdraw from or revoke any revocable trust account under section 402.205, and the right of any acting co-trustee, other than the original settlor, to withdraw all or a portion of the principal balance of a revocable trust account under section 402.205, neither the settlor nor any acting co-trustee shall have the right to sell, assign, convey, alienate, or otherwise encumber, for consideration or otherwise, any interest in the income or principal of the trust account. The income or the principal or any interest of any beneficiary of a revocable trust account shall not be liable for any debt incurred by the settlor or any acting co-trustee, nor shall the principal or income of the trust account be subject to seizure by any creditor of any settlor or any acting co-trustee under any writ or proceeding in law or in equity.
473.657. 1. Distribution to a distributee may be made to the distributee or to a person holding a power of attorney properly executed by the distributee in accordance with the law of the place of execution, or to the distributee's personal representative, guardian, or conservator. 2. Distribution may be made to the trustees of a trust account established pursuant to sections 402.199 to [402.225] 402.208 if the court finds that such distribution qualifies as a life beneficiary under subdivision (1) of section 402.200 and that such distribution would be in the best interest of the distributee as prescribed by section 475.093.
475.093. 1. If the court finds that the establishment of a trust would be in the protectee's best interest, the court may authorize the establishment of a trust account for the benefit of a protectee pursuant to sections 402.199 to [402.255] 402.208, if it finds that the protectee qualifies as a life beneficiary pursuant to subdivision (1) of section [402.205] 402.200, or the court may authorize the establishment of such trust for the benefit of a protectee pursuant to section 475.092.
2. A trust account established pursuant to sections 402.199 to [402.225] 402.208 will be in the best interest of the protectee, notwithstanding the fact that a sum not exceeding twenty-five percent of the principal balance as defined in subdivision [(7)] (9) of section 402.200 will be distributed to the charitable trust of the Missouri family trust as prescribed by section [402.215] 402.203.
[402.210. 1. There is hereby created the "Missouri Family Trust Board of Trustees", which shall be a body corporate and an instrumentality of the state. The board of trustees shall consist of nine persons appointed by the governor with the advice and consent of the senate. The members' terms of office shall be three years and until their successors are appointed and qualified. The trustees shall be persons who are not prohibited from serving by sections 105.450 to 105.482 and who are not otherwise employed by the department of mental health. The board of trustees shall be composed of the following:
(1) Three members of the immediate family of persons who have a disability or are the recipients of services provided by the department in the treatment of mental illness. The advisory council for comprehensive psychiatric services, created pursuant to section 632.020, shall submit a panel of nine names to the governor, from which he shall appoint three. One shall be appointed for a term of one year, one for two years, and one for three years. Thereafter, as the term of a trustee expires each year, the Missouri advisory council for comprehensive psychiatric services shall submit to the governor a panel of not less than three nor more than five proposed trustees, and the governor shall appoint one trustee from such panel for a term of three years;
(2) Three members of the immediate family of persons who are recipients of services provided by the department in the habilitation of the mentally retarded or developmentally disabled. The Missouri advisory council on mental retardation and developmental disabilities, created pursuant to section 633.020, shall submit a panel of nine names to the governor, from which he shall appoint three. One shall be appointed for one year, one for two years and one for three years. Thereafter, as the term of a trustee expires each year, the Missouri advisory council on mental retardation and developmental disabilities shall submit to the governor a panel of not less than three nor more than five proposed trustees, and the governor shall appoint one trustee from such panel for a term of three years;
(3) Three persons who are recognized for their expertise in general business matters and procedures. Of the three business people to be appointed by the governor, one shall be appointed for one year, one for two years and one for three years. Thereafter, as the term of a trustee expires each year, the governor shall appoint one business person as trustee for a term of three years. 2. The trustees shall receive no compensation for their services. The trust shall reimburse the trustees for necessary expenses actually incurred in the performance of their duties.
3. As used in this section, the term "immediate family" includes spouse, parents, parents of spouse, children, spouses of children and siblings.
4. The board of trustees shall be subject to the provisions of sections 610.010 to 610.120.
5. The board of trustees shall annually prepare or cause to be prepared an accounting of the trust funds and shall transmit a copy of the accounting to the governor, the president pro tempore of the senate and the speaker of the house of representatives.
6. The board of trustees shall establish policies, procedures and other rules and regulations necessary to implement the provisions of sections 402.199 to 402.220.]
[402.215. 1. The board of trustees is authorized and directed to establish and administer the Missouri family trust and to advise, consult with, and render services to departments and agencies of the state of Missouri and to other nonprofit organizations which qualify as organizations pursuant to Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, and which provide services to Missouri residents with a disability. 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 and to qualify as an organization pursuant to Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended.
2. The trust documents shall include and be limited by the following provisions:
(1) The Missouri family trust shall be authorized to accept contributions from any source including trustees, personal representatives, personal custodians pursuant to chapter 404, and other fiduciaries, and, subject to the provisions of subdivision (11) of this subsection, 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 disability 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 principal balance in the account for each such life beneficiary, to the total principal balances in the accounts 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 section 475.093;
(3) The cotrustee, with the consent of the trust, shall from time to time but not less frequently than annually determine 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 cotrustee 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 which shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. 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, conduct a hearing, 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. Judgment on the arbitrators' award may be entered in any court of competent jurisdiction;
(4) Any donor, during his or her lifetime, except for a trust created pursuant to section 473.657 or section 475.093, 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 or her 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 principal balance 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 or her 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 principal balance shall be returned to the donor. The balance of the principal balance 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 section 475.093, 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 principal balance. In such event, the applicable portion, as set forth in subdivision (7) of this subsection, of the principal balance shall then be distributed to the successor trust and the balance of the principal balance 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 shall cease to be eligible for services provided by the department of mental health and neither the donor nor the then acting cotrustee, except a cotrustee of a trust created pursuant to section 473.657 or section 475.093, shall revoke or withdraw the applicable portion, as set for in subdivision (7) of this subsection, of the principal balance, 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 in subdivision (7) of this subsection, of the principal balance, 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 (12) 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 principal balance shall be distributed to the successor trust, and the balance of the principal balance 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 principal balance shall be distributed to the successor trust, and the balance of the principal balance 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 principal balance 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 principal balance shall be distributed to such person or persons as the donor designated, and the balance of the principal balance, 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 principal balance shall be distributed to such person or persons who are the life beneficiary's heirs at law. Any 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 principal balance shall be distributed to such person or persons who are the life beneficiary's heirs at law. The balance of the principal balance together with all undistributed income shall be distributed to the charitable trust. If there are no heirs at the time of either such distribution, the then-principal balance 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 life beneficiary's account 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 life beneficiary's account, an amount equal to one hundred percent of the principal balance shall be distributed to such person or persons who are the life beneficiary's heirs at law. If there are no heirs, the balance, if any, of the principal balance 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 should 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 life beneficiary's account 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 life beneficiary's account, an amount equal to seventy-five percent of the principal balance shall be distributed to such person or persons who are the life beneficiary's heirs at law and the balance of the principal balance together with all undistributed income shall be distributed to the charitable trust. If there are no heirs, the balance of the principal balance, together with all undistributed income, shall be distributed to the charitable trust;
(11) In the event an account is established with the assets of the beneficiary by the beneficiary, a family member, the beneficiary's guardian, or pursuant to a court order, all in accordance with Title 42 of the United States Code Section 1396p(d)(4)(C), then upon the death of the life beneficiary the state of Missouri shall receive all amounts remaining in the life beneficiary's account 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 life beneficiary's account, an amount equal to seventy-five percent of the principal balance shall be distributed to such person or persons who are the life beneficiary's heirs at law and the balance of the principal balance together with all undistributed income shall be distributed to the charitable trust. If there are no heirs, the balance of the principal balance together with all undistributed income shall be distributed to the charitable trust;
(12) Notwithstanding the provisions of subdivisions (4) to (8) of this subsection to the contrary, the donor may voluntarily agree to a smaller percentage of the principal balance in any account established by such donor than is provided in this subsection to be returned to the donor or distributed to the successor trust, as the case may be; and a corresponding larger percentage of the principal balance in such account to be distributed either to the charitable trust or to a designated restricted account within the charitable trust;
(13) 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 principal balance as set forth in subdivision (7) of this subsection; 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 section 475.093. 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 the beneficiary 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 or her eligibility for public assistance. Expenditures may include payment of the funeral and burial costs of the beneficiary. The designated trustee, in his or her 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;
(14) The charitable trust shall be administered as part of the family trust, but as a separate account. The income attributable to the charitable trust shall be used to provide benefits for individuals who have a disability 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. The trustees may from time to time determine to use part of the principal of the charitable trust to provide such benefits. 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 shall annually determine the amount of charitable trust income or principal to be used to provide benefits and the nature and type of benefits to be provided for each identified beneficiary of the charitable trust. Any income not used shall be added to principal annually;
(15) Any person, with the consent of the board of trustees, may establish a restricted account within the charitable trust and shall be permitted to determine, with the consent of the board of trustees, the beneficiaries of such restricted account provided such beneficiaries qualify as participants of the trust as set forth in subsection 1 of section 402.205.]
[402.217. 1. No beneficiary shall have any vested or property rights or interests in the family trust, nor shall any beneficiary have the power to anticipate, assign, convey, alienate, or otherwise encumber any interest in the income or principal of the family trust, nor shall such income or the principal or any interest of any beneficiary thereunder be liable for any debt incurred by such beneficiary, nor shall the principal or income of the family trust be subject to seizure by any creditor or any beneficiary under any writ or proceeding in law or in equity.
2. Except for the right of a donor to revoke any gift made to the trust, pursuant to subdivision (4) of subsection 2 of section 402.215, and the right of any acting cotrustee, other than the original donor, to withdraw all or a portion of the principal balance, pursuant to subdivision (5) of subsection 2 of section 402.215, neither the donor nor any acting cotrustee shall have the right to sell, assign, convey, alienate or otherwise encumber, for consideration or otherwise, any interest in the income or principal of the family trust, nor shall such income or the principal or any interest of any beneficiary thereunder be liable for any debt incurred by the donor or any acting cotrustee, nor shall the principal or income of the family trust be subject to seizure by any creditor of any donor or any acting cotrustee under any writ or proceeding in law or in equity.]
[402.220. No trustee, cotrustee or successor cotrustee serving pursuant to the provisions of sections 402.200 to 402.220 shall at any time be held liable for any mistake of law or fact, or of both law and fact, or errors of judgment, nor for any loss sustained by the trust estate or by any beneficiary under the provisions of sections 402.200 to 402.220, or by any other person, except through actual fraud or willful misconduct on the part of such trustee, cotrustee or successor cotrustee.]
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