Autism Speaks - Village Voice en Unprecedented Ruling Could Have Major Impact on Special Needs Trusts <div class="field field-sub-title"> Court decision raises awareness about steps families need to take to protect trust beneficiaries </div> <div class="field field-news-teaser"> <p>A recent groundbreaking ruling on special needs trusts could change the way trustees monitor the needs of people with disabilities and </p> </div> <div class="field field-publish-date"> <span class="date-display-single">July 26, 2013</span> </div> <div class="field field-news-image"> <img class="imagefield imagefield-field_news_image" width="250" height="374" alt="" src="" /> </div> <p><img alt="" class="caption" src="" style="margin: 5px; width: 150px; height: 224px; float: left;" title="Judge Kristin Booth Glen" />A recent groundbreaking ruling on special needs trusts could change the way trustees monitor the needs of people with disabilities and spend money on them, influence other court rulings in similar cases and bolster legislative initiatives aimed at protecting the rights of beneficiaries of special needs trusts.</p> <p>Former New York County Surrogate&#39;s Court Judge Kristin Booth Glen ruled last December that banks and other special needs trustees must not only invest trust assets, but also take decisive steps to determine the needs of people with disabilities and spend trust money to improve their lives. The decision drew renewed attention as well as praise from the autism and special needs communities after it was the focus of an article in the <a href="">Village Voice</a> last week.</p> <p>A special needs trust is a trust to hold assets for an individual with special needs who may not be able to manage his or her own finances. These trusts help supplement the beneficiary&rsquo;s income without affecting eligibility for benefits like Medicaid or Supplemental Security Income.</p> <p>Glen&rsquo;s ruling is already having an impact by raising awareness among parents of children with disabilities about the steps they need to take to ensure there is always an advocate to check in on their loved ones after they&rsquo;re gone and that any special needs trusts they create for their children are managed and spent according to their wishes.</p> <p><strong>Some of the steps families can take when setting up a trust are:</strong></p> <ul> <li> <strong>Hire an attorney who is experienced in creating special needs trusts</strong><br /> &nbsp;</li> <li> <strong>Hire an institutional trustee that has a reputation for utilizing social workers and case managers to monitor the welfare of beneficiaries and determine how trust funds should be spent</strong><br /> &nbsp;</li> <li> <strong>Clearly spell out their wishes for the disbursement of trust funds within the trust document</strong><br /> &nbsp;</li> <li> <strong>Appoint a trusted family member who truly cares about the beneficiary as a trustee and/or guardian</strong><br /> &nbsp;</li> <li> <strong>Name a trust protector or advocacy committee to oversee the actions of the trustee</strong></li> </ul> <p>Daniel Unumb, executive director of the <a href="">Autism Legal Resource Center</a> at Autism Speaks, described Glen&rsquo;s ruling as a &ldquo;cautionary tale that underscores the importance of trying to get it right from the beginning in terms of a carefully drafted trust document and a ready, willing, able and informed trustee.&rdquo; He said Glen&rsquo;s decision has drawn attention to the importance of making sure that families&rsquo; &nbsp;wishes are &ldquo;spelled out in the trust to the greatest extent possible in terms of what they want the trust to be used for in caring for the child&rdquo; and that the trust include provisions that are specific to the child&rsquo;s disability and circumstance.&rdquo; &nbsp;</p> <p>Glen&rsquo;s ruling came in a case that was quite unusual not only because Mark Holman, an <img alt="" class="caption" src="" style="margin: 5px; width: 150px; height: 232px; float: right;" title="Mark Holman" />orphaned teen with autism, was left a multimillion dollar trust by his adoptive mother yet no family advocate to check on him, but because special needs trusts rarely come under the scrutiny of a court and usually remain a private matter. The reason Mark&rsquo;s case came to the court&rsquo;s attention was because the attorney, also a co-trustee, applied for guardianship.</p> <p>While courts around the country can cite Glen&rsquo;s ruling in similar cases and many are hoping her decision will influence other judicial opinions, it is not precedential or binding on any other courts. &ldquo;Judge Glen&rsquo;s decision was groundbreaking and very courageous &hellip; and I think every judge should at least consider doing the same thing in a similar situation,&rdquo; said Howard Krooks, partner at Elder Law Associates and president of the <a href="">National Academy of Elder Law Attorneys (NAELA)</a>, a professional association of attorneys that provide legal services to the elderly and people with special needs. &ldquo;I believe and certainly hope there will be a larger impact from this decision on other courts throughout New York State and across the country.&rdquo;</p> <p>Since many families prefer to keep their financial matters private and avoid guardianship statutes that require intrusive and expensive court accounting, legislation could give courts the authority to intervene on a case-by-case basis to protect special needs trust beneficiaries when needed, Krooks said. &ldquo;The only real solution to this is a statutory change that authorizes judges to do what Justice Glen did &hellip; Without proper jurisdiction over trusts, the guardianship court is limited in terms of making sure the ward is adequately being provided for.&rdquo;</p> <p>For their part, banks and institutional trustees could take notice of Glen&rsquo;s decision, which threatened to reduce or eliminate trustee commissions, and start hiring case managers more frequently to ensure trust funds are being spent on the needs of beneficiaries and that their own commissions are protected.</p> <p>However, since&nbsp;the impact of Glen&rsquo;s decision on the courts, legislatures and banks&nbsp;will take some time and is still uncertain,&nbsp;parents and guardians of people with disabilities are the ones who really need to take action. Hiring an experienced special needs attorney and an appropriate trustee are probably the two most important steps families can take to ensure their children are protected. And demanding that banks and institutional trustees hire case managers could help cement a policy shift and lead to more banks offering these services.</p> <p>As an additional precaution, many special needs attorneys have started advising parents to utilize trust protectors (also referred to as trust advisors and monitors) or trust advisory/advocacy committees to oversee the actions of trustees and ensure people with disabilities are being cared for as intended by their trusts. The trust protectors or advisory committees, who may or may not be paid, can make recommendations to the trustee on how to spend trust money, and ideally should have the power to file motions in court to force trust expenditures or even remove the trustee if necessary. Committees usually consist of a few members and can include parents, care managers, social workers, lawyers and other relatives or friends, and generally meet several times a year to discuss the beneficiaries&rsquo; needs.</p> <p>&ldquo;People can&rsquo;t just make up these trusts and assume that the trustee is going to do the right thing,&rdquo; said Krooks. &ldquo;Are they supposed to do the right thing? Absolutely. But in cases where they don&rsquo;t, there needs to be a mechanism for holding them responsible for making sure they do what the trust was set up for in the first place.&rdquo;</p> <p><strong><a href="">NAELA</a>, <a href="">the Special Needs Alliance</a> and <a href="">the Academy of Special Needs Planners</a> are the three major organizations that can connect parents with highly experienced special needs attorneys. Families can also search for special needs attorneys in their area at <a href=""></a><u>. </u></strong></p> <p>For more information about special needs trusts, check out the Legal Matters section of the Autism Speaks Transition Tool Kit (<a href=""></a><u>.</u> Also look for a new Autism Speaks Financial Planning Tool Kit in October that will include important information about special needs trusts and guardianship issues.</p> <p>&nbsp;</p> News Judge Glen Special Needs Trusts Village Voice Fri, 26 Jul 2013 15:56:18 +0000 Gail Schiller 233026 at Judge Glen on Her Groundbreaking Opinion on Special Needs Trusts <div class="field field-news-teaser"> <p>Judge, hailed as a hero, answers questions about ruling that banks must spend trust money to improve beneficiaries' lives.</p> </div> <div class="field field-publish-date"> <span class="date-display-single">July 23, 2013</span> </div> <div class="field field-news-image"> <img class="imagefield imagefield-field_news_image" width="100" height="100" alt="" src="" /> </div> <p><img alt="" class="caption" src="" style="padding: 5px; border: 0px currentcolor; width: 200px; height: 299px; margin-right: 5px; float: left;" title="Judge Kristin Booth Glen" />Former New York Judge Kristin Booth Glen is being hailed as a hero in the autism and special needs communities for her bold and unprecedented ruling that banks and other special needs trustees must not only invest trust assets but also take decisive steps to determine the needs of people with disabilities and spend trust money to improve beneficiaries&#39; lives.</p> <p>Glen&#39;s decision, which she went to great lengths to render in the eleventh hour prior to her mandatory retirement at age 70 from New York County Surrogate&#39;s Court in Manhattan (11 p.m. EST on her very last day of work last New Year&#39;s Eve), drew widespread attention in the autism and special needs communities after it was the focus of a front-page article in <a href="" target="_blank">The Village Voice</a> last week.</p> <p>The ruling stemmed from a case in which the attorney who had created a discretionary trust for Mark Holman, a severely autistic orphaned teen who was left a multimillion dollar trust fund by his adoptive mother Marie Holman, petitioned to become the teen&#39;s guardian in an attempt to fulfill Marie&#39;s dying wish. &nbsp;Glen took the attorney as well as co-trustee JP Morgan Chase to task for failing to visit Mark Holman, determine his needs, notify the residential facility in which he lived of the trust, or spend any of Mark&#39;s trust funds on improving his life, all while collecting thousands of dollars in commissions.</p> <p>&ldquo;The history reveals a severely disabled, vulnerable, institutionalized young man, wholly dependent on Medicaid, unvisited and virtually abandoned, despite a multimillion dollar trust left for his care by his deceased mother,&rdquo; Glen wrote in her opinion. &ldquo;It&#39;s not sufficient for the trustees to simply safeguard the Mark Trust&#39;s assets; instead, the trustees have a duty to Mark to inquire into his condition and to apply trust income to improving it.&rdquo; In her opinion, Glen described her decision as a &ldquo;clarion call&rdquo; for all special needs trustees. &ldquo;Courts will intervene not only when the trustee behaves recklessly, but also when the trustee fails to exercise judgment altogether,&rdquo; she wrote.</p> <p>Glen recently spoke to Autism Speaks about her decision and its potential impact for people with autism and other developmental disabilities who are the beneficiaries of special needs or discretionary trusts.</p> <p><strong>Can you explain why you made this courageous ruling and what were you hoping to accomplish?</strong></p> <p>My final opinion on the accounting of the trust, which I had ordered, was an opportunity for me to say that if you are a fiduciary of a trust that is set up for a person with a disability, not just a special needs trust, but any trust where the beneficiary is clearly a person with a disability, you have a responsibility to utilize the funds for the purposes that the grantor, in this case the mom, set up the trust for.&nbsp;</p> <p>Unfortunately, what I wrote in my opinion is dicta as we say in the law, so it doesn&#39;t bind anybody. But what it was intended to do was shine a light on this practice to alert people that this kind of stuff was going on and to alert banks in particular that if they accept the role of trustee that they have an obligation that goes above and beyond just investing the money, which quite frankly they don&#39;t do particularly well either.</p> <p>My opinion says something that nobody had ever said before. And I have to say we had done some research earlier &hellip; and I was sure that there would be all kinds of stuff about fiduciary obligations to beneficiaries and so forth and there was nothing. There was this one case in New York which I cite, a very different situation, and just really nothing else, and I was really shocked by it and I think it just highlights how much trust law &ndash; and it&#39;s funny because the word trust has two meanings &ndash; is just about the money and not about the human beings and their needs and so that&#39;s what happened.</p> <p><strong>What type of feedback have you received on your opinion in this case? </strong></p> <p>When the decision first came out, there was a lot of discussion in the legal community. I know it was out on a lot of blogs. I was at The Association of American Law Schools conference and a lot of people were talking about it. Many people who are advocates for people with disabilities thought it was great and people who represent banks didn&#39;t think it was so great. But obviously it was something that the general public didn&#39;t know about. Then the Village Voice article whipped up a lot of interest. I&#39;ve received many wonderful emails from parents and people with disabilities saying thank you for caring and thank you for bringing this problem to the attention of the world.</p> <p><strong>Is Mark Holman&#39;s case considered unusual because it wound up in court? Don&#39;t most special needs trusts remain a private matter?</strong></p> <p>The problem is if the trust is for a person with a significant intellectual disability and the person who created the trust, the parent, or whoever, is dead, and the trustee is not acting appropriately, who is going to challenge it? Not the person with the significant intellectual disability who has a serious communicative disorder and is in an institution. They&#39;re not going to make it to the Surrogate&#39;s Court in New York County to say, &ldquo;I want an accounting of my trust.&rdquo; So that&#39;s one of the real problems here. It was just kind of a fluke that this came to my attention and as I think the (Village Voice) article indicated there are huge numbers of these special needs trusts and billions of dollars in these trusts and who&#39;s looking at them?</p> <p><strong>Do you think your decision will have an impact on special needs trusts beyond this case?</strong></p> <p>Two things could happen. One thing that could happen is that banks look at this and say, &lsquo;You know, it&#39;s true; either we should put ourselves in a position to do what we need to do for people with special needs or we shouldn&#39;t take on these trusts, and if we decide that we&#39;re going to do what we need to do, we need to hire people like social workers to monitor these trusts and to make sure that the beneficiaries are getting what they need and that we&#39;re spending the money appropriately.&#39; And as I understand it from people on the bar, and I&#39;m certainly not making any recommendations here, but there are some banks that do that. So number one, if you are a parent or someone setting up a trust, you might really investigate if you&#39;re going to have a bank as a trustee whether it actually has that capacity and is doing that work or not.</p> <p>The other thing that can happen because except by fluke the courts are not going to be involved in this is that there is a new concept called &lsquo;trust protectors.&#39; &nbsp;I don&#39;t think we have a statute yet about it in New York; some states do. While you appoint A to be the trustee to manage the money and spend it, you appoint B to make sure A is doing it right. You could appoint a bank to do the money management and you could appoint a sibling or friend or neighbor, someone who cares about your kid, to make sure the money is being spent. They could check in on a quarterly or biannual basis to make sure the trustee is actually taking care of your child&#39;s needs. The trust protector would have power to go into court if the trustee is not acting appropriately.</p> <p>When I first heard about it, I thought here&#39;s one more mouth feeding at the trough of the trust, but it occurred to me after I wrote this opinion that this might actually be a place where you can use a trust protector. I don&#39;t know whether a trust protector automatically can get you into court without a statute that says you have standing in court if you are a trust protector. But that doesn&#39;t mean you can&#39;t put in a trust protector. I think that the states in which the trust protector law is fairly mature and robust probably have new statutes that you can bring a proceeding if you are the trust protector.</p> <p><strong>Do you think other courts in New York or even nationwide could follow your ruling, or do you think your decision could lead to any type of legislation on special needs trusts?</strong></p> <p>Will other courts follow my decision &hellip; I hope so. But again the problem is a court won&#39;t see this sort of thing except by a fluke. So the real question is will the banks change their behavior and/or can we figure out a way for somebody to be watching the trustee because it&#39;s not going to be the courts. It doesn&#39;t get to court unless there&#39;s a problem. You need to have someone who&#39;s watching the trust. In the world as it exists today the trust protector is the best device to do that.</p> <p>I&#39;ve actually seen that at the annual meetings of trust and estate lawyers that there&#39;s been discussion about trust protectors and whether it&#39;s a good idea or a bad idea, or whether there should be legislation or not. I don&#39;t know where that is right now.&nbsp;</p> <p><strong>Many people in the special needs community are calling you a hero. Do you feel you deserve this title or perhaps that every judge around the country should be making similar rulings on this type of case?</strong></p> <p>No, I certainly don&#39;t think I&#39;m a hero but what I am is a person who by both study and connections to people with disabilities has a broader understanding of people with disabilities, their rights and their deeds. Disability is the invisible discrimination in our court system. We have looked at and educated people about gender bias, race and ethnicity bias. Judges now see these issues pretty clearly. But I think most judges are not knowledgeable about a wide range of disabilities, particularly intellectual disabilities. I think that there are huge numbers of stereotypes and I think that educating the judiciary about disabilities and about the rights of people with disabilities would mean that I&#39;m not a hero for this opinion because everybody would have this on their radar screen and would have done the same thing if it came before them.&nbsp;</p> <p><strong>What advice would you give to parents to ensure that what happened to Mark Holman doesn&#39;t happen to their children? </strong></p> <p>If they&#39;re going to set up trusts and they&#39;re going to use a bank, see if it is a bank that has the capability of doing what needs to be done. In America we seem to believe strongly in the marketplace and how the marketplace fixes everything, &nbsp;so if every person who is creating a special needs trust asked the questions and insisted that the financial institutions have appropriate resources to utilize the income from trusts in a way that benefited the beneficiary with a disability, then the banks would do just that.</p> News Judge Kristin Booth Glen Special Needs Trusts Village Voice Tue, 23 Jul 2013 15:09:21 +0000 Andrew Leonard 232641 at Ruling That Could Change Everything For Disabled People With Trusts <div class="field field-news-teaser"> <p>When Judge Kristen Booth Glen walked into her Manhattan Surrogate's courtroom one day in 2007.</p> </div> <div class="field field-publish-date"> <span class="date-display-single">July 15, 2013</span> </div> <div class="field field-news-image"> <img class="imagefield imagefield-field_news_image" width="100" height="60" alt="" src="" /> </div> <p>When&nbsp;Judge Kristin Booth Glen&nbsp;walked&nbsp;into her Manhattan Surrogate&#39;s courtroom one day in 2007, she had no idea she was about to challenge the nation&#39;s top banks on behalf of tens of thousands of disabled people.</p> <p>Before her stood lawyer&nbsp;Harvey J. Platt, who was petitioning to become the legal guardian of&nbsp;Mark Christopher Holman, a severely autistic teen who lived in an institution upstate.</p> <p>Holman had been left an orphan nearly three years earlier after the eccentric millionaire who adopted him passed away. According to doctors, he had the communication skills of a toddler, unable to bathe, dress, or eat by himself.</p> <p>But before Judge Glen would grant this seemingly perfunctory petition, she had a few questions for Platt.</p> <p>&quot;How often have you visited Mark Holman?&quot; she asked the lawyer.</p> <p>&quot;Since his mother died, I have not visited him,&quot; said Platt.</p> <p>&quot;And when you say you haven&#39;t visited him since then, how often had you visited him prior to that?&quot;</p> <p>To continue reading, visit <a href="">here</a>.</p> <p class="rtecenter" style=""><img alt="" src="" style="width: 200px; height: 310px; " /><br /> <em><a href="">Courtesy Sharon Awad</a></em><br /> Mark Holman, millionaire orphan</p> <p><strong>Check out some of our related resources:</strong></p> <p><a href="">Your Child&#39;s Rights</a></p> <p><a href="">Adult Services</a></p> <p><a href="">Legal Resource Center</a></p> <p><a href="">Search our Resource Guide for&nbsp;Advocacy, Financial and Legal Resources</a></p> <p> &nbsp;</p> News Adults autism Autism Speaks Inheritance Judge Kristin Booth Glen Village Voice Mon, 15 Jul 2013 15:31:14 +0000 alison.dyer 229036 at