402.215. Board of trustees, duties--provisions for trust documents.
Board of trustees, duties--provisions for trust documents.
402.215. 1. The board of trustees is authorized and directed toestablish and administer the Missouri family trust and to advise, consultwith, and render services to departments and agencies of the state of Missouriand to other nonprofit organizations which qualify as organizations pursuantto Section 501(c)(3) of the United States Internal Revenue Code of 1986, asamended, and which provide services to Missouri residents with a disability.The board shall be authorized to execute all documents necessary to establishand administer the trust including the formation of a not-for-profitcorporation created pursuant to chapter 355, RSMo, and to qualify as anorganization pursuant to Section 501(c)(3) of the United States InternalRevenue Code of 1986, as amended.
2. The trust documents shall include and be limited by the followingprovisions:
(1) The Missouri family trust shall be authorized to acceptcontributions from any source including trustees, personal representatives,personal custodians pursuant to chapter 404, RSMo, and other fiduciaries, and,subject to the provisions of subdivision (11) of this subsection, from thelife beneficiaries and their respective spouses, to be held, administered,managed, invested and distributed in order to facilitate the coordination andintegration of private financing for individuals who have a disability or areeligible for services provided by the Missouri department of mental health, orboth, while maintaining the eligibility of such individuals for governmententitlement funding. All contributions, and the earnings thereon, shall beadministered as one trust fund; however, separate accounts shall beestablished for each designated beneficiary. The income earned, afterdeducting administrative expenses, shall be credited to the accounts of therespective life beneficiaries in proportion to the principal balance in theaccount for each such life beneficiary, to the total principal balances in theaccounts for all life beneficiaries;
(2) Every donor may designate a specific person as the life beneficiaryof the contribution made by such donor. In addition, each donor may name acotrustee, including the donor, and a successor or successors to thecotrustee, to act with the trustees of the trust on behalf of the designatedlife beneficiary; provided, however, a life beneficiary shall not be eligibleto be a cotrustee or a successor cotrustee; provided, however, that courtapproval of the specific person designated as life beneficiary and ascotrustee or successor trustee shall be required in connection with any trustcreated pursuant to section 473.657, RSMo, or section 475.093, RSMo;
(3) The cotrustee, with the consent of the trust, shall from time totime but not less frequently than annually determine the amount of income orprincipal or income and principal to be used to provide noncash benefits andthe nature and type of benefits to be provided for the life beneficiary. Anynet income which is not used shall be added to principal annually. In theevent that the trust and the cotrustee shall be unable to agree either on theamount of income or principal or income and principal to be used or thebenefits to be provided, then either the trust or the cotrustee shall have theright to request that the matter be resolved by arbitration which shall beconducted in accordance with the Commercial Arbitration Rules of the AmericanArbitration Association. The requesting party shall send a written requestfor arbitration to the responding party and shall in such request set forththe name, address and telephone number of such requesting party's arbitrator.The responding party shall, within ten days after receipt of the request forarbitration, set forth in writing to the requesting party the name, addressand telephone number of the responding party's arbitrator. Copies of therequest for arbitration and response shall be sent to the director of thedepartment. If the two designated arbitrators shall be unable to agree upon athird arbitrator within ten days after the responding party shall haveidentified such party's arbitrator, then the director of the department shalldesignate the third arbitrator by written notice to the requesting andresponding parties' arbitrators. The three arbitrators shall meet, conduct ahearing, and render a decision within thirty days after the appointment of thethird arbitrator. A decision of a majority of the arbitrators shall bebinding upon the requesting and responding parties. Each party shall pay thefees and expenses of such party's arbitrator and the fees and expenses of thethird arbitrator shall be borne equally by the parties. Judgment on thearbitrators' award may be entered in any court of competent jurisdiction;
(4) Any donor, during his or her lifetime, except for a trust createdpursuant to section 473.657, RSMo, or section 475.093, RSMo, may revoke anygift 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 thedonor shall have revoked his or her gift to the trust the life beneficiaryshall not have received any benefits provided by use of trust income orprincipal, then an amount equal to one hundred percent of the principalbalance shall be returned to the donor. Any undistributed net income shall bedistributed to the charitable trust. In the event that at the time the donorshall have revoked his or her gift to the trust the life beneficiary shallhave received any benefits provided by the use of trust income or principal,then an amount equal to ninety percent of the principal balance shall bereturned to the donor. The balance of the principal balance together with allundistributed net income shall be distributed to the charitable trust;
(5) Any acting cotrustee, except a cotrustee of a trust created pursuantto section 473.657, RSMo, or section 475.093, RSMo, other than the originaldonor of a life beneficiary's account, shall have the right, for good andsufficient reason upon written notice to the trust and the department statingsuch reason, to withdraw all or a portion of the principal balance. In suchevent, the applicable portion, as set forth in subdivision (7) of thissubsection, of the principal balance shall then be distributed to thesuccessor trust and the balance of the principal balance together with anyundistributed net income shall be distributed to the charitable trust;
(6) In the event that a life beneficiary for whose benefit acontribution or contributions shall have been made to the family trust shallcease to be eligible for services provided by the department of mental healthand neither the donor nor the then acting cotrustee, except a cotrustee of atrust created pursuant to section 473.657, RSMo, or section 475.093, RSMo,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 tosuch beneficiary and thereupon shall distribute the applicable portion, as setforth in subdivision (7) of this subsection, of the principal balance, to thetrustee of the successor trust to be held, administered and distributed bysuch trustee in accordance with the provisions of the successor trustdescribed in subdivision (12) of this subsection;
(7) If at the time of withdrawal or termination as provided insubdivision (6) of this subsection of a life beneficiary's account from thetrust either the life beneficiary shall not have received any benefitsprovided by the use of the trust income or principal or the life beneficiaryshall have received benefits provided by the use of trust income or principalfor a period of not more than five years from the date a contribution shallhave first been made to the trust for such life beneficiary, then an amountequal to ninety percent of the principal balance shall be distributed to thesuccessor trust, and the balance of the principal balance together with allundistributed net income shall be distributed to the charitable trust;provided, however, if the life beneficiary at the time of such withdrawal bythe cotrustee or termination as provided above shall have received anybenefits provided by the use of trust income or principal for a period of morethan five years from the date a contribution shall have first been made to thetrust for such life beneficiary, then an amount equal to seventy-five percentof the principal balance shall be distributed to the successor trust, and thebalance of the principal balance together with all undistributed net incomeshall be distributed to the charitable trust;
(8) Subject to the provisions of subdivision (9) of this subsection, ifthe life beneficiary dies before receiving any benefits provided by the use oftrust income or principal, then an amount equal to one hundred percent of theprincipal balance shall be distributed to such person or persons as the donorshall have designated. Any undistributed net income shall be distributed tothe charitable trust. If at the time of death of the life beneficiary, thelife beneficiary shall have been receiving benefits provided by the use oftrust income or principal or income and principal, then, in such event, anamount equal to seventy-five percent of the principal balance shall bedistributed to such person or persons as the donor designated, and the balanceof the principal balance, together with all undistributed net income, shall bedistributed to the charitable trust;
(9) In the event the trust is created as a result of a distribution froma personal representative of an estate of which the life beneficiary is adistributee, then if the life beneficiary dies before receiving any benefitsprovided by the use of trust income or principal, an amount equal to onehundred percent of the principal balance shall be distributed to such personor persons who are the life beneficiary's heirs at law. Any undistributedincome shall be distributed to the charitable trust. If at the time of deathof the life beneficiary the life beneficiary shall have been receivingbenefits provided by the use of trust income or principal or income andprincipal, then, an amount equal to seventy-five percent of the principalbalance shall be distributed to such person or persons who are the lifebeneficiary's heirs at law. The balance of the principal balance togetherwith all undistributed income shall be distributed to the charitable trust.If there are no heirs at the time of either such distribution, thethen-principal balance together with all undistributed income shall bedistributed to the charitable trust;
(10) In the event the trust is created as a result of the recovery ofdamages by reason of a personal injury to the life beneficiary, then if thelife beneficiary dies before receiving any benefits provided by the use oftrust income or principal, the state of Missouri shall receive all amountsremaining in the life beneficiary's account up to an amount equal to the totalmedical assistance paid on behalf of such life beneficiary under a state planunder Title 42 of the United States Code, and then to the extent there is anyamount remaining in the life beneficiary's account, an amount equal to onehundred percent of the principal balance shall be distributed to such personor persons who are the life beneficiary's heirs at law. If there are noheirs, the balance, if any, of the principal balance together with allundistributed income shall be distributed to the charitable trust. If at thetime of death of the life beneficiary the life beneficiary should have beenreceiving benefits provided by the use of trust income or principal or incomeand principal then the state of Missouri shall receive all amounts remainingin the life beneficiary's account up to an amount equal to the total medicalassistance paid on behalf of such life beneficiary under a state plan underTitle 42 of the United States Code, and then to the extent there is any amountremaining in the life beneficiary's account, an amount equal to seventy-fivepercent of the principal balance shall be distributed to such person orpersons who are the life beneficiary's heirs at law and the balance of theprincipal balance together with all undistributed income shall be distributedto the charitable trust. If there are no heirs, the balance of the principalbalance, together with all undistributed income, shall be distributed to thecharitable trust;
(11) In the event an account is established with the assets of thebeneficiary by the beneficiary, a family member, the beneficiary's guardian,or pursuant to a court order, all in accordance with Title 42 of the UnitedStates Code Section 1396p(d)(4)(C), then upon the death of the lifebeneficiary the state of Missouri shall receive all amounts remaining in thelife beneficiary's account up to an amount equal to the total medicalassistance paid on behalf of such life beneficiary under a state plan underTitle 42 of the United States Code, and then to the extent there is any amountremaining in the life beneficiary's account, an amount equal to seventy-fivepercent of the principal balance shall be distributed to such person orpersons who are the life beneficiary's heirs at law and the balance of theprincipal balance together with all undistributed income shall be distributedto the charitable trust. If there are no heirs, the balance of the principalbalance together with all undistributed income shall be distributed to thecharitable trust;
(12) Notwithstanding the provisions of subdivisions (4) to (8) of thissubsection to the contrary, the donor may voluntarily agree to a smallerpercentage of the principal balance in any account established by such donorthan is provided in this subsection to be returned to the donor or distributedto the successor trust, as the case may be; and a corresponding largerpercentage of the principal balance in such account to be distributed eitherto the charitable trust or to a designated restricted account within thecharitable 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 trusteesthat the reason for such withdrawal is good and sufficient, or upon theissuance of notice of termination by the board of trustees, the board oftrustees shall distribute and pay over to the designated trustee of thesuccessor trust the applicable portion of the principal balance as set forthin subdivision (7) of this subsection; provided, however, that court approvalof distribution to a successor trustee shall be required in connection withany trust created pursuant to section 473.657, RSMo, or section 475.093, RSMo. The designated trustee of the successor trust shall hold, administer anddistribute the principal and income of the successor trust, in the discretionof such trustee, for the maintenance, support, health, education and generalwell-being of the beneficiary, recognizing that it is the purpose of thesuccessor trust to supplement, not replace, any government benefits for thebeneficiary's basic support to which such beneficiary may be entitled and toincrease the quality of such beneficiary's life by providing the beneficiarywith those amenities which cannot otherwise be provided by public assistanceor entitlements or other available sources. Permissible expenditures include,but are not limited to, more sophisticated dental, medical and diagnostic workor treatment than is otherwise available from public assistance, privaterehabilitative training, supplementary education aid, entertainment, periodicvacations and outings, expenditures to foster the interests, talents andhobbies of the beneficiary, and expenditures to purchase personal property andservices which will make life more comfortable and enjoyable for thebeneficiary but which will not defeat his or her eligibility for publicassistance. Expenditures may include payment of the funeral and burial costsof the beneficiary. The designated trustee, in his or her discretion, maymake payments from time to time for a person to accompany the beneficiary onvacations and outings and for the transportation of the beneficiary or offriends and relatives of the beneficiary to visit the beneficiary. Anyundistributed income shall be added to the principal from time to time.Expenditures shall not be made for the primary support or maintenance of thebeneficiary, including basic food, shelter and clothing, if, as a result, thebeneficiary would no longer be eligible to receive public benefits orassistance to which the beneficiary is then entitled. After the death andburial of the beneficiary, the remaining balance of the successor trust shallbe distributed to such person or persons as the donor shall have designated;
(14) The charitable trust shall be administered as part of the familytrust, but as a separate account. The income attributable to the charitabletrust shall be used to provide benefits for individuals who have a disabilityor who are eligible for services provided by or through the department and whoeither have no immediate family or whose immediate family, in the reasonableopinion of the trustees, is financially unable to make a contribution to thetrust sufficient to provide benefits for such individuals, while maintainingsuch individuals' eligibility for government entitlement funding. Thetrustees may from time to time determine to use part of the principal of thecharitable trust to provide such benefits. As used in this section, the term"immediate family" includes parents, children and siblings. The individualsto be beneficiaries of the charitable trust shall be recommended to thetrustees by the department and others from time to time. The trustees shallannually determine the amount of charitable trust income or principal to beused to provide benefits and the nature and type of benefits to be providedfor each identified beneficiary of the charitable trust. Any income not usedshall be added to principal annually;
(15) Any person, with the consent of the board of trustees, mayestablish a restricted account within the charitable trust and shall bepermitted to determine, with the consent of the board of trustees, thebeneficiaries of such restricted account provided such beneficiaries qualifyas participants of the trust as set forth in subsection 1 of section 402.205.
(L. 1989 H.B. 318 § 4, A.L. 1991 S.B. 311, A.L. 1993 H.B. 136 merged with S.B. 338, A.L. 1996 S.B. 768, A.L. 1998 S.B. 852 & 913, A.L. 1999 S.B. 211, A.L. 2004 H.B. 923)