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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : TRADE AND COMMERCE
Chapter : Chapter 402 Investment Guidelines for Eleemosynary Funds and Trust Funds
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1. Unless otherwise limited by the applicable gift instrument,
the governing board of the institution or institutional trustee may
accumulate so much of the annual net income of an institutional endowment
fund as is prudent under the standard established by section 402.035 and
may hold any or all of such accumulated income in an income reserve for
subsequent expenditure for the uses and purposes for which such
institutional endowment fund is established or may add any or all of such
accumulated income to the principal of such institutional endowment fund
as is prudent under such standard.
2. Unless otherwise limited by the applicable instrument, the governing
board of the institution or institutional trustee may appropriate for
expenditure for the uses and purposes for which an institutional
endowment fund is established so much of the net appreciation, realized
and unrealized, in the fair value of the assets of an endowment fund over
the historic dollar value of the fund as is prudent under the standard
established by section 402.035.
3. This section does not limit the authority of the governing board to
accumulate income or to add the same to principal of an institutional
endowment fund or to expend funds as permitted under other law or the
terms of the applicable gift instrument.
4. Subsection 3 of this section shall not apply if the applicable gift
instrument indicates the donor's intention that net appreciation shall
not be expended. A restriction upon the expenditure of net appreciation
may not be implied from a designation of a gift as an endowment, or from
a direction or authorization in the applicable gift instrument which does
not clearly evidence an intention that net appreciation not be expended.
(L. 1976 H.B. 1096 § 2, A.L. 1995 S.B. 178)
In addition to an investment otherwise authorized by law or by
the applicable gift instrument, the governing board, subject to any
specific limitations set forth in the applicable gift instrument or in
the applicable law may:
(1) Invest and reinvest an institutional endowment fund in any real or
personal property deemed advisable by the governing board, whether or not
it produces a current return, including mortgages, stocks, bonds,
debentures, and other securities of profit or nonprofit corporations,
shares in or obligations of associations, partnerships, or individuals,
and obligations of any government or subdivision or instrumentality
thereof;
(2) Retain property contributed by a donor to an institutional endowment
fund for as long as the governing board deems advisable;
(3) Include all or any part of an institutional endowment fund in any
pooled or common fund maintained by the institution or institutional
trustee; and
(4) Invest all or any part of an institutional endowment fund in any
other pooled or common fund available for investment, including shares or
interests in regulated investment companies, mutual funds, common trust
funds, investment partnerships, real estate investment trusts, or similar
organizations in which funds are commingled and investment determinations
are made by persons other than the governing board. (L. 1976 H.B. 1096 §
4, A.L. 1995 S.B. 178)
CROSS REFERENCES: Multinational banks, securities and obligations of,
investment in, when, RSMo 409.950 Savings accounts in insured savings and
loan associations, investment in authorized, RSMo 369.194
Except as otherwise provided by the applicable gift instrument,
the governing board may:
(1) Delegate to its committees, officers or employees of the institution
or the fund, or agents, including investment counsel, the authority to
act in place of the board in investment and reinvestment of institutional
endowment funds;
(2) Contract with independent investment advisors, investment counsel or
managers, banks, or trust companies, to act for the governing board in
investment of institutional endowment funds; and
(3) Authorize the payment of compensation for investment advisory or
management services. (L. 1976 H.B. 1096 § 5, A.L. 1995 S.B. 178)
Except as otherwise set forth in the gift instrument, when
investing, reinvesting, purchasing, acquiring, exchanging, selling,
managing property, appropriating appreciation, developing and applying
investment and spending policies, accumulating income, and delegating
investment management for the benefit of an institution, the members of
the governing board shall act with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent person
acting in like capacity and familiar with these matters would use in the
conduct of an enterprise of like character and with like aims to
accomplish the purposes of the institution receiving the benefit of the
institutional endowment fund. In the course of administering the fund
pursuant to this standard, individual investments shall be considered as
part of an overall investment strategy. In exercising judgment pursuant
to this section, the governing board shall consider long and short term
needs of the institution or the institution which is the beneficiary in
carrying out its educational, religious, charitable, or other
eleemosynary purposes, its present and anticipated financial
requirements, expected total return on its investments, price level
trends, and general economic conditions. (L. 1976 H.B. 1096 § 6, A.L.
1995 S.B. 178)
1. With the written consent of the donor, the governing board
may release, in whole or in part, a restriction imposed by the applicable
gift instrument on the use or investment of an institutional endowment
fund.
2. If written consent of the donor cannot be obtained by reason of his
death, disability, incapacity, unavailability, or impossibility of
identification, or if the gift instrument does not give the institutional
trustee the right to exercise the power of cy-pres, the governing board
may apply in the name of the institution or institutional trustee to the
circuit court for release of a restriction imposed by the applicable gift
instrument on the use or investment of an institutional endowment fund.
The attorney general shall be notified of the application and shall be
given an opportunity to be heard. If the court finds that the restriction
is obsolete, inappropriate, or impracticable, it may, by order, release
the restriction in whole or in part. A release under this subsection may
not change an institutional endowment fund to a fund that is not an
institutional endowment fund.
3. A release under this section may not allow an institutional endowment
fund to be used for purposes other than the educational, religious,
charitable, or other eleemosynary purposes of the institution affected.
4. This section does not limit the application of the doctrine of
cy-pres. (L. 1976 H.B. 1096 § 7, A.L. 1995 S.B. 178)
If any provision of sections 402.010 to 402.060 or the
application thereof to any person or circumstances is held invalid, the
invalidity shall not affect other provisions or applications of sections
402.010 to 402.060 which can be given effect without the invalid
provision or application, and to this end the provisions of sections
402.010 to 402.060 are declared severable. (L. 1976 H.B. 1096 § 9, A.L.
1995 S.B. 178)
All of the provisions of sections 402.010 to 402.055 apply to
gift instruments executed or in effect before or after August 13, 1976.
(L. 1976 H.B. 1096 § 8)
1. Nothing in sections 402.010 to 402.060 shall act to amend the
status of governing boards, or the duties and liabilities of directors
pursuant to other applicable law.
2. Notwithstanding any provision of section 456.012, RSMo, or section
456.013, RSMo, sections 402.010 to 402.060 shall supersede and control in
any case of conflict between sections 402.010 to 402.060 and section
456.012, RSMo, or section 456.013, RSMo. (L. 1995 S.B. 178)
1. The general assembly hereby finds and declares the following:
(1) It is an essential function of state government to provide basic
support for persons with a mental or physical impairment that
substantially limits one or more major life activities, whether the
impairment is congenital or acquired by accident, injury or disease;
(2) The cost of providing basic support for persons with a mental or
physical impairment is difficult for many to afford and they are forced
to rely upon the government to provide such support;
(3) Families and friends of persons with a mental or physical impairment
desire to supplement, but not replace, the basic support provided by
state government and other governmental programs;
(4) The cost of medical, social or other supplemental services is often
provided by families and friends of persons with mental or physical
impairments, for the lifetime of such persons;
(5) It is in the best interest of the people of this state to encourage,
enhance and foster the ability of families and friends of Missouri
residents and residents of adjacent states with mental or physical
impairments to supplement, but not to replace, the basic support provided
by state government and other governmental programs and to provide for
medical, social or other supplemental services for such persons;
(6) Permitting and assisting families and friends of Missouri residents
and residents of adjacent states with mental or physical impairments to
supplement, but not to replace, the basic support provided by state
government and other governmental programs and to provide medical, social
or other supplemental services for such persons as necessary and
desirable for the public health, safety and welfare of this state.
2. In light of the findings and declarations described in subsection 1 of
this section, the general assembly declares the purpose of the Missouri
family trust to be the encouragement, enhancement and fostering of the
provision of medical, social or other supplemental services for persons
with a mental or physical impairment by family and friends of such
persons.
(L. 1991 S.B. 311, A.L. 1993 H.B. 136 merged with S.B. 338, A.L. 1999
S.B. 211, A.L. 2004 H.B. 923)
As used in sections 402.199 to 402.220, the following terms mean:
(1) "Board of trustees", the Missouri family trust board of trustees;
(2) "Charitable trust", the trust established to provide benefits for
individuals, as set forth in section 402.215;
(3) "Department", the department of mental health;
(4) "Disability", a mental or physical impairment that substantially
limits one or more major life activities, whether the impairment is
congenital or acquired by accident, injury or disease, and where the
impairment is verified by medical findings;
(5) "Life beneficiary" or "beneficiary", a designated beneficiary of the
Missouri family trust;
(6) "Net income", the earnings received on investments less
administrative expenses and fees;
(7) "Principal balance", the fair market value of all contributions made
to a particular account, less distributions, determined as of the end of
the calendar month immediately preceding the occurrence giving rise to
any determination of principal balance;
(8) "Requesting party", the party desiring arbitration;
(9) "Responding party", the other party in arbitration of a dispute
regarding benefits to be provided by the trust;
(10) "Successor trust", the trust established upon distribution by the
board of trustees pursuant to notice of withdrawal or termination and
administered as set forth in section 402.215;
(11) "Trust", the Missouri family trust established pursuant to sections
402.200 to 402.220;
(12) "Trustee", a member of the Missouri family trust board of trustees.
(L. 1989 H.B. 318 § 1, A.L. 1991 S.B. 311, A.L. 1993 H.B. 136 merged with
S.B. 338, A.L. 1998 S.B. 852 & 913, A.L. 1999 S.B. 211, A.L. 2004 H.B.
923)
1. The families, friends and guardians of persons who have a
disability or are eligible for services provided by the department of
mental health, or both, may participate in a trust which may supplement
the care, support, and treatment of such persons pursuant to the
provisions of sections 402.199 to 402.220. Neither the contribution to
the trust for the benefit of a life beneficiary nor the use of trust
income to provide benefits shall in any way reduce, impair or diminish
the benefits to which such person is otherwise entitled by law; and the
administration of the trust shall not be taken into consideration in
appropriations for the department of mental health to render services
required by law.
2. Unless otherwise prohibited by federal statutes or regulations, all
state agencies shall disregard the trust as a resource when determining
eligibility of Missouri residents for assistance under chapter 208, RSMo.
3. The assets of the board of trustees and assets held in trust pursuant
to the provisions of sections 402.199 to 402.220 shall not be considered
state money, assets of the state or revenue for any purposes of the state
constitution or statutes. The property of the board of trustees and its
income and operations shall be exempt from all taxation by the state or
any of its political subdivisions. (L. 1989 H.B. 318 § 2, A.L. 1991 S.B.
311, A.L. 1999 S.B. 211, A.L. 2004 H.B. 923)
1. There is hereby created the "Missouri Family Trust Board of
Trustees", which shall be a body corporate and an instrumentality of the
state. The board of trustees shall consist of nine persons appointed by
the governor with the advice and consent of the senate. The members'
terms of office shall be three years and until their successors are
appointed and qualified. The trustees shall be persons who are not
prohibited from serving by sections 105.450 to 105.482, RSMo, and who are
not otherwise employed by the department of mental health. The board of
trustees shall be composed of the following:
(1) Three members of the immediate family of persons who have a
disability or are the recipients of services provided by the department
in the treatment of mental illness. The advisory council for
comprehensive psychiatric services, created pursuant to section 632.020,
RSMo, shall submit a panel of nine names to the governor, from which he
shall appoint three. One shall be appointed for a term of one year, one
for two years, and one for three years. Thereafter, as the term of a
trustee expires each year, the Missouri advisory council for
comprehensive psychiatric services shall submit to the governor a panel
of not less than three nor more than five proposed trustees, and the
governor shall appoint one trustee from such panel for a term of three
years;
(2) Three members of the immediate family of persons who are recipients
of services provided by the department in the habilitation of the
mentally retarded or developmentally disabled. The Missouri advisory
council on mental retardation and developmental disabilities, created
pursuant to section 633.020, RSMo, shall submit a panel of nine names to
the governor, from which he shall appoint three. One shall be appointed
for one year, one for two years and one for three years. Thereafter, as
the term of a trustee expires each year, the Missouri advisory council on
mental retardation and developmental disabilities shall submit to the
governor a panel of not less than three nor more than five proposed
trustees, and the governor shall appoint one trustee from such panel for
a term of three years;
(3) Three persons who are recognized for their expertise in general
business matters and procedures. Of the three business people to be
appointed by the governor, one shall be appointed for one year, one for
two years and one for three years. Thereafter, as the term of a trustee
expires each year, the governor shall appoint one business person as
trustee for a term of three years.
2. The trustees shall receive no compensation for their services. The
trust shall reimburse the trustees for necessary expenses actually
incurred in the performance of their duties.
3. As used in this section, the term "immediate family" includes spouse,
parents, parents of spouse, children, spouses of children and siblings.
4. The board of trustees shall be subject to the provisions of sections
610.010 to 610.120, RSMo.
5. The board of trustees shall annually prepare or cause to be prepared
an accounting of the trust funds and shall transmit a copy of the
accounting to the governor, the president pro tempore of the senate and
the speaker of the house of representatives.
6. The board of trustees shall establish policies, procedures and other
rules and regulations necessary to implement the provisions of sections
402.199 to 402.220. (L. 1989 H.B. 318 § 3, A.L. 1991 S.B. 311, A.L. 1993
H.B. 136 merged with S.B. 338, A.L. 1999 S.B. 211)
1. The board of trustees is authorized and directed to establish
and administer the Missouri family trust and to advise, consult with, and
render services to departments and agencies of the state of Missouri and
to other nonprofit organizations which qualify as organizations pursuant
to Section 501(c)(3) of the United States Internal Revenue Code of 1986,
as amended, and which provide services to Missouri residents with a
disability. The board shall be authorized to execute all documents
necessary to establish and administer the trust including the formation
of a not-for-profit corporation created pursuant to chapter 355, RSMo,
and to qualify as an organization pursuant to Section 501(c)(3) of the
United States Internal Revenue Code of 1986, as amended.
2. The trust documents shall include and be limited by the following
provisions:
(1) The Missouri family trust shall be authorized to accept contributions
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
the life beneficiaries and their respective spouses, to be held,
administered, managed, invested and distributed in order to facilitate
the coordination and integration of private financing for individuals who
have a disability or are eligible for services provided by the Missouri
department of mental health, or both, while maintaining the eligibility
of such individuals for government entitlement funding. All
contributions, and the earnings thereon, shall be administered as one
trust fund; however, separate accounts shall be established for each
designated beneficiary. The income earned, after deducting administrative
expenses, shall be credited to the accounts of the respective life
beneficiaries in proportion to the principal balance in the account for
each such life beneficiary, to the total principal balances in the
accounts for all life beneficiaries;
(2) Every donor may designate a specific person as the life beneficiary
of the contribution made by such donor. In addition, each donor may name
a cotrustee, including the donor, and a successor or successors to the
cotrustee, to act with the trustees of the trust on behalf of the
designated life beneficiary; provided, however, a life beneficiary shall
not be eligible to be a cotrustee or a successor cotrustee; provided,
however, that court approval of the specific person designated as life
beneficiary and as cotrustee or successor trustee shall be required in
connection with any trust created pursuant to section 473.657, RSMo, or
section 475.093, RSMo;
(3) The cotrustee, with the consent of the trust, shall from time to time
but not less frequently than annually determine the amount of income or
principal or income and principal to be used to provide noncash benefits
and the nature and type of benefits to be provided for the life
beneficiary. Any net income which is not used shall be added to principal
annually. In the event that the trust and the cotrustee shall be unable
to agree either on the amount of income or principal or income and
principal to be used or the benefits to be provided, then either the
trust or the cotrustee shall have the right to request that the matter be
resolved by arbitration which shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
requesting party shall send a written request for arbitration to the
responding party and shall in such request set forth the name, address
and telephone number of such requesting party's arbitrator. The
responding party shall, within ten days after receipt of the request for
arbitration, set forth in writing to the requesting party the name,
address and telephone number of the responding party's arbitrator. Copies
of the request for arbitration and response shall be sent to the director
of the department. If the two designated arbitrators shall be unable to
agree upon a third arbitrator within ten days after the responding party
shall have identified such party's arbitrator, then the director of the
department shall designate the third arbitrator by written notice to the
requesting and responding parties' arbitrators. The three arbitrators
shall meet, conduct a hearing, and render a decision within thirty days
after the appointment of the third arbitrator. A decision of a majority
of the arbitrators shall be binding upon the requesting and responding
parties. Each party shall pay the fees and expenses of such party's
arbitrator and the fees and expenses of the third arbitrator shall be
borne equally by the parties. Judgment on the arbitrators' award may be
entered in any court of competent jurisdiction;
(4) Any donor, during his or her lifetime, except for a trust created
pursuant to section 473.657, RSMo, or section 475.093, RSMo, may revoke
any gift 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 the donor shall have revoked his or her gift to the trust the life
beneficiary shall not have received any benefits provided by use of trust
income or principal, then an amount equal to one hundred percent of the
principal balance shall be returned to the donor. Any undistributed net
income shall be distributed to the charitable trust. In the event that at
the time the donor shall have revoked his or her gift to the trust the
life beneficiary shall have received any benefits provided by the use of
trust income or principal, then an amount equal to ninety percent of the
principal balance shall be returned to the donor. The balance of the
principal balance together with all undistributed net income shall be
distributed to the charitable trust;
(5) Any acting cotrustee, except a cotrustee of a trust created pursuant
to section 473.657, RSMo, or section 475.093, RSMo, other than the
original donor of a life beneficiary's account, shall have the right, for
good and sufficient reason upon written notice to the trust and the
department stating such reason, to withdraw all or a portion of the
principal balance. In such event, the applicable portion, as set forth in
subdivision (7) of this subsection, of the principal balance shall then
be distributed to the successor trust and the balance of the principal
balance together with any undistributed net income shall be distributed
to the charitable trust;
(6) In the event that a life beneficiary for whose benefit a contribution
or contributions shall have been made to the family trust shall cease to
be eligible for services provided by the department of mental health and
neither the donor nor the then acting cotrustee, except a cotrustee of a
trust 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 to such beneficiary and thereupon shall
distribute the applicable portion, as set forth in subdivision (7) of
this subsection, of the principal balance, to the trustee of the
successor trust to be held, administered and distributed by such trustee
in accordance with the provisions of the successor trust described in
subdivision (12) of this subsection;
(7) If at the time of withdrawal or termination as provided in
subdivision (6) of this subsection of a life beneficiary's account from
the trust either the life beneficiary shall not have received any
benefits provided by the use of the trust income or principal or the life
beneficiary shall have received benefits provided by the use of trust
income or principal for a period of not more than five years from the
date a contribution shall have first been made to the trust for such life
beneficiary, then an amount equal to ninety percent of the principal
balance shall be distributed to the successor trust, and the balance of
the principal balance together with all undistributed net income shall be
distributed to the charitable trust; provided, however, if the life
beneficiary at the time of such withdrawal by the cotrustee or
termination as provided above shall have received any benefits provided
by the use of trust income or principal for a period of more than five
years from the date a contribution shall have first been made to the
trust for such life beneficiary, then an amount equal to seventy-five
percent of the principal balance shall be distributed to the successor
trust, and the balance of the principal balance together with all
undistributed net income shall be distributed to the charitable trust;
(8) Subject to the provisions of subdivision (9) of this subsection, if
the life beneficiary dies before receiving any benefits provided by the
use of trust income or principal, then an amount equal to one hundred
percent of the principal balance shall be distributed to such person or
persons as the donor shall have designated. Any undistributed net income
shall be distributed to the charitable trust. If at the time of death of
the life beneficiary, the life beneficiary shall have been receiving
benefits provided by the use of trust income or principal or income and
principal, then, in such event, an amount equal to seventy-five percent
of the principal balance shall be distributed to such person or persons
as the donor designated, and the balance of the principal balance,
together with all undistributed net income, shall be distributed to the
charitable trust;
(9) In the event the trust is created as a result of a distribution from
a personal representative of an estate of which the life beneficiary is a
distributee, then if the life beneficiary dies before receiving any
benefits provided by the use of trust income or principal, an amount
equal to one hundred percent of the principal balance shall be
distributed to such person or persons who are the life beneficiary's
heirs at law. Any undistributed income shall be distributed to the
charitable trust. If at the time of death of the life beneficiary the
life beneficiary shall have been receiving benefits provided by the use
of trust income or principal or income and principal, then, an amount
equal to seventy-five percent of the principal balance shall be
distributed to such person or persons who are the life beneficiary's
heirs at law. The balance of the principal balance together with all
undistributed income shall be distributed to the charitable trust. If
there are no heirs at the time of either such distribution, the
then-principal balance together with all undistributed income shall be
distributed to the charitable trust;
(10) In the event the trust is created as a result of the recovery of
damages by reason of a personal injury to the life beneficiary, then if
the life beneficiary dies before receiving any benefits provided by the
use of trust income or principal, the state of Missouri shall receive all
amounts remaining in the life beneficiary's account up to an amount equal
to the total medical assistance paid on behalf of such life beneficiary
under a state plan under Title 42 of the United States Code, and then to
the extent there is any amount remaining in the life beneficiary's
account, an amount equal to one hundred percent of the principal balance
shall be distributed to such person or persons who are the life
beneficiary's heirs at law. If there are no heirs, the balance, if any,
of the principal balance together with all undistributed income shall be
distributed to the charitable trust. If at the time of death of the life
beneficiary the life beneficiary should have been receiving benefits
provided by the use of trust income or principal or income and principal
then the state of Missouri shall receive all amounts remaining in the
life beneficiary's account up to an amount equal to the total medical
assistance paid on behalf of such life beneficiary under a state plan
under Title 42 of the United States Code, and then to the extent there is
any amount remaining in the life beneficiary's account, an amount equal
to seventy-five percent of the principal balance shall be distributed to
such person or persons who are the life beneficiary's heirs at law and
the balance of the principal balance together with all undistributed
income shall be distributed to the charitable trust. If there are no
heirs, the balance of the principal balance, together with all
undistributed income, shall be distributed to the charitable trust;
(11) In the event an account is established with the assets of the
beneficiary by the beneficiary, a family member, the beneficiary's
guardian, or pursuant to a court order, all in accordance with Title 42
of the United States Code Section 1396p(d)(4)(C), then upon the death of
the life beneficiary the state of Missouri shall receive all amounts
remaining in the life beneficiary's account up to an amount equal to the
total medical assistance paid on behalf of such life beneficiary under a
state plan under Title 42 of the United States Code, and then to the
extent there is any amount remaining in the life beneficiary's account,
an amount equal to seventy-five percent of the principal balance shall be
distributed to such person or persons who are the life beneficiary's
heirs at law and the balance of the principal balance together with all
undistributed income shall be distributed to the charitable trust. If
there are no heirs, the balance of the principal balance together with
all undistributed income shall be distributed to the charitable trust;
(12) Notwithstanding the provisions of subdivisions (4) to (8) of this
subsection to the contrary, the donor may voluntarily agree to a smaller
percentage of the principal balance in any account established by such
donor than is provided in this subsection to be returned to the donor or
distributed to the successor trust, as the case may be; and a
corresponding larger percentage of the principal balance in such account
to be distributed either to the charitable trust or to a designated
restricted account within the charitable 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
trustees that the reason for such withdrawal is good and sufficient, or
upon the issuance of notice of termination by the board of trustees, the
board of trustees shall distribute and pay over to the designated trustee
of the successor trust the applicable portion of the principal balance as
set forth in subdivision (7) of this subsection; provided, however, that
court approval of distribution to a successor trustee shall be required
in connection with any trust created pursuant to section 473.657, RSMo,
or section 475.093, RSMo. The designated trustee of the successor trust
shall hold, administer and distribute the principal and income of the
successor trust, in the discretion of such trustee, for the maintenance,
support, health, education and general well-being of the beneficiary,
recognizing that it is the purpose of the successor trust to supplement,
not replace, any government benefits for the beneficiary's basic support
to which such beneficiary may be entitled and to increase the quality of
such beneficiary's life by providing the beneficiary with those amenities
which cannot otherwise be provided by public assistance or entitlements
or other available sources. Permissible expenditures include, but are not
limited to, more sophisticated dental, medical and diagnostic work or
treatment than is otherwise available from public assistance, private
rehabilitative training, supplementary education aid, entertainment,
periodic vacations and outings, expenditures to foster the interests,
talents and hobbies of the beneficiary, and expenditures to purchase
personal property and services which will make life more comfortable and
enjoyable for the beneficiary but which will not defeat his or her
eligibility for public assistance. Expenditures may include payment of
the funeral and burial costs of the beneficiary. The designated trustee,
in his or her discretion, may make payments from time to time for a
person to accompany the beneficiary on vacations and outings and for the
transportation of the beneficiary or of friends and relatives of the
beneficiary to visit the beneficiary. Any undistributed income shall be
added to the principal from time to time. Expenditures shall not be made
for the primary support or maintenance of the beneficiary, including
basic food, shelter and clothing, if, as a result, the beneficiary would
no longer be eligible to receive public benefits or assistance to which
the beneficiary is then entitled. After the death and burial of the
beneficiary, the remaining balance of the successor trust shall be
distributed to such person or persons as the donor shall have designated;
(14) The charitable trust shall be administered as part of the family
trust, but as a separate account. The income attributable to the
charitable trust shall be used to provide benefits for individuals who
have a disability or who are eligible for services provided by or through
the department and who either have no immediate family or whose immediate
family, in the reasonable opinion of the trustees, is financially unable
to make a contribution to the trust sufficient to provide benefits for
such individuals, while maintaining such individuals' eligibility for
government entitlement funding. The trustees may from time to time
determine to use part of the principal of the charitable trust to provide
such benefits. As used in this section, the term "immediate family"
includes parents, children and siblings. The individuals to be
beneficiaries of the charitable trust shall be recommended to the
trustees by the department and others from time to time. The trustees
shall annually determine the amount of charitable trust income or
principal to be used to provide benefits and the nature and type of
benefits to be provided for each identified beneficiary of the charitable
trust. Any income not used shall be added to principal annually;
(15) Any person, with the consent of the board of trustees, may establish
a restricted account within the charitable trust and shall be permitted
to determine, with the consent of the board of trustees, the
beneficiaries of such restricted account provided such beneficiaries
qualify as 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)
1. No beneficiary shall have any vested or property rights or
interests in the family trust, nor shall any beneficiary have the power
to anticipate, assign, convey, alienate, or otherwise encumber any
interest in the income or principal of the family trust, nor shall such
income or the principal or any interest of any beneficiary thereunder be
liable for any debt incurred by such beneficiary, nor shall the principal
or income of the family trust be subject to seizure by any creditor or
any beneficiary under any writ or proceeding in law or in equity.
2. Except for the right of a donor to revoke any gift made to the trust,
pursuant to subdivision (4) of subsection 2 of section 402.215, and the
right of any acting cotrustee, other than the original donor, to withdraw
all or a portion of the principal balance, pursuant to subdivision (5) of
subsection 2 of section 402.215, neither the donor nor any acting
cotrustee shall have the right to sell, assign, convey, alienate or
otherwise encumber, for consideration or otherwise, any interest in the
income or principal of the family trust, nor shall such income or the
principal or any interest of any beneficiary thereunder be liable for any
debt incurred by the donor or any acting cotrustee, nor shall the
principal or income of the family trust be subject to seizure by any
creditor of any donor or any acting cotrustee under any writ or
proceeding in law or in equity. (L. 1991 S.B. 311, A.L. 1999 S.B. 211,
A.L. 2004 H.B. 923)
No trustee, cotrustee or successor cotrustee serving pursuant to
the provisions of sections 402.200 to 402.220 shall at any time be held
liable for any mistake of law or fact, or of both law and fact, or errors
of judgment, nor for any loss sustained by the trust estate or by any
beneficiary under the provisions of sections 402.200 to 402.220, or by
any other person, except through actual fraud or willful misconduct on
the part of such trustee, cotrustee or successor cotrustee. (L. 1989 H.B.
318 § 5)
Effective 9-29-89
The provisions of sections 402.200 to 402.220 shall be effective
upon a determination by the department of mental health and notification
to the revisor of statutes that there has been federal legislative or
administrative assurance that participation in the trust as established
herein will not jeopardize a beneficiary's eligibility for public
assistance and will not reduce the payment of covered services for which
the beneficiary is eligible, and not otherwise. (L. 1989 H.B. 318 § A)
*Required notification received 9-29-89 causing sections 402.200 to
402.220 to become effective on that date.
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