Judicial Creation of Special Needs Trusts Clarified
Governor Bev Perdue recently signed into law Session Law 2009-267, which:
- modifies North Carolina General Statutes Section 36C-2-203(a)(9) to state the proceedings may be brought before the Clerk of Superior Court to create a trust.
- Adds a provision to NCGS Section 36C-4-401 providing that a court may create a trust, including a trust pursuant to 42 USC Section 1396p(d)(4) [Special Needs Trust].
- Adds Section 36C-4-401.2, which provides that any interested party may petition the court to establish a trust pursuant to 42 USC Section 1396p(d)(4.
The changes are effective October 1, 2009.
The new laws will be extremely helpful, as Special Needs Trusts under 42 USC Section 1396p(d)(4) must be established by a parent, grandparent, legal guardian or court. If there is no parent or grandparent is is willing and able, and no guardian, the only way to protect Medicaid and SSI benefits by using a Special Needs Trust is by having one created by the court.
We encourage anyone interested in this issue to take a look at "Allowing Perpetuities in North Carolina," an article that was recently published in the Campbell Law Review. The author is John V. Orth, a professor at the UNC School of Law.
It can be accessed at http://law.campbell.edu/lawreview/articles/31-3-399.pdf.
-Campbell Law Review