A special needs trust is restrictive and the third-party trustee sometimes needs to be replaced. It can be quite challenging for the beneficiary to replace the trustee.
If a special needs trustee is not up to the job or intentionally mishandles the trust, it can be difficult for the beneficiary to change the trustee, according to the Wills, Trusts & Estates Prof Blog in “Can the Beneficiary of a Special Needs Trust Change the Trustee?“.
The advantage of a special needs trust is to allow a beneficiary to have access to income, while remaining eligible for government benefits.
However, in exchange for that benefit, the trusts are very restrictive. They must be created in specific ways and the beneficiary’s ability to control the assets in the trust is limited.
Technically, the beneficiary cannot distribute or manage the trust assets and a third-party trustee is needed.
A beneficiary of a special needs trust can petition a court to have the trustee removed and another appointed. However, this can be a difficult process and many people with special needs are not able to handle the complex legal issues of filing a petition with the court, let alone arguing for a trustee change.
This could potentially stick a beneficiary with a bad trustee and no recourse.
It is, therefore, important that special needs trusts be drafted with this problem in mind.
Reference: Wills, Trusts & Estates Prof Blog (Sep. 27, 2017) “Can the Beneficiary of a Special Needs Trust Change the Trustee?”
