Navigating the landscape of special needs trusts requires careful consideration of funding parameters, and the question of requiring evaluations before funding new therapies is a critical one for trustees and families alike. A well-drafted trust *can* absolutely stipulate that evaluations, assessments, or professional opinions are required *before* funding specific therapies or treatments. This isn’t about being restrictive; it’s about responsible stewardship of trust assets and ensuring the beneficiary receives the *most* effective care, aligning with the grantor’s intentions and maximizing the long-term benefit. Approximately 65% of special needs trusts include provisions for professional oversight of care, demonstrating a growing trend toward responsible funding practices. This can range from requiring physician approval to mandating evaluations by qualified therapists or specialists, tailored to the specific therapy in question.
What happens if a therapy isn’t working, and the trust is paying for it?
I remember Mrs. Davison, a woman whose son, Mark, had autism. She had established a trust to ensure Mark’s ongoing care. For years, she championed a specific equine therapy, convinced it was the key to unlocking his potential. The trust dutifully funded these sessions, even as Mark showed minimal progress. It wasn’t until a new trustee, guided by the trust document’s provision for periodic evaluations, requested a comprehensive behavioral assessment that the truth came out. The assessment revealed that Mark wasn’t responding to equine therapy and, in fact, was becoming increasingly anxious during the sessions. Redirecting those funds toward speech therapy and occupational therapy, based on the evaluator’s recommendations, brought about noticeable improvements in his communication skills and daily living abilities. This illustrates how critical it is to have an objective evaluation process in place—even when a parent or grantor has strong beliefs about a particular approach. According to a study by the National Disability Rights Network, approximately 20% of special needs trusts encounter situations where funding for ineffective therapies continues due to a lack of oversight.
How can a trust document specify evaluation requirements?
The trust document should clearly outline the types of therapies that require pre-funding evaluations, the qualifications of the professionals who should conduct those evaluations, and the criteria used to determine whether a therapy should be funded. For example, it might state, “No funding will be provided for Applied Behavioral Analysis (ABA) therapy without a current assessment conducted by a Board Certified Behavior Analyst (BCBA) demonstrating a reasonable expectation of benefit.” It’s also helpful to include a process for appealing evaluation decisions, ensuring fairness and transparency. Often, these evaluations are required for therapies that are considered experimental or non-standard, or those with a high cost. The idea isn’t to create bureaucratic hurdles, but to protect the beneficiary and the trust assets from wasteful spending. A clear evaluation framework, with specific criteria and timelines, can prevent disagreements and ensure that funds are used effectively.
What if the beneficiary refuses an evaluation?
This is a tricky situation that requires careful handling. The trust document should address this possibility, outlining the consequences of refusing a required evaluation. In some cases, funding for the therapy may be suspended until the evaluation is completed. However, it’s important to balance the need for evaluation with the beneficiary’s right to autonomy and self-determination. One family I worked with had a trust that required annual psychological evaluations for their adult son, who had a developmental disability. He initially resisted, viewing it as intrusive and unnecessary. We worked with him, explaining that the evaluation wasn’t about control, but about ensuring he continued to receive the best possible care. We involved him in the process, allowing him to choose the psychologist and discuss his concerns beforehand. This collaborative approach not only secured the evaluation but also strengthened the trust between the family, the trustee, and the beneficiary. “Trust is earned through consistent actions,” as my mentor, a seasoned estate planning attorney, often said, and that rings especially true when managing a special needs trust.
Can the trustee be held liable if they fund a therapy *without* a required evaluation?
Absolutely. Trustees have a fiduciary duty to act in the best interests of the beneficiary and to adhere to the terms of the trust document. Failing to follow the prescribed evaluation process could be considered a breach of that duty. If a therapy proves ineffective or even harmful, and the trustee didn’t obtain a required evaluation before funding it, they could be held personally liable for any resulting losses. This underscores the importance of diligent record-keeping and documentation. Trustees should maintain copies of all evaluations, assessments, and funding requests, demonstrating that they followed the proper procedures. It’s estimated that legal challenges related to special needs trust administration occur in approximately 5% of cases, and failure to adhere to the trust document’s terms is a common reason for these disputes. Ultimately, incorporating evaluation requirements into a special needs trust isn’t about adding complexity; it’s about ensuring responsible stewardship, maximizing benefits for the beneficiary, and fulfilling the grantor’s vision for long-term care.
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