The Missouri Family Trust May Be Better Than Just Relying
on a Discretionary Special Needs Trust

by Gerald J. Zafft¹

Estate and financial planning for a family with a member who has a disability is quite different from planning for other families. The cost of providing care and benefits for a child with a disability can be very expensive. This is especially true if the child requires residential care. Unlike providing for the college education of a child, where the family has approximately 18 years to get ready for college and incurs costs for four or five years, or a couple of more if graduate school is included, the care for a child with a disability starts immediately and continues for a lifetime. As a result, most parents are forced to rely upon public entitlement programs such as Supplemental Security Income (SSI) and Medicaid to assist with the costs of care. Yet these same parents want to, and do, contribute and supplement their child's care and perhaps make his or her life a little better. However, there are severe limitations on what the parents can do and still preserve their child's eligibility for Medicaid and SSI.

Limitations on Assets/Income

In order to be eligible for or to maintain eligibility for Medicaid, a person with a disability cannot have assets of $1,000 or more.² The federal statute further provides that state agencies may only consider income and resources that are available to the Medicaid applicant.³ In Missouri that agency is the Division of Family Services within the Department of Social Services. The Social Security Administration, which administers the SSI Program for persons with disabilities, is slightly more generous. It will allow assets or resources of up to $2,000 for a single person or $3,000 for a couple before disqualification. But Social Security counts the resources of the individual and his or her spouse.⁴ Any payments to or for the benefit of an SSI beneficiary that provide for the basics (food, clothing and shelter) will reduce or eliminate the benefits to which such person may otherwise be entitled. Also, an SSI recipient cannot have more than $20 per month in unearned income without causing a dollar for dollar reduction in benefits.

These restrictions or limitations do not present serious problems during the parents' lifetime. They can supplement the basic care, food, clothing and shelter provided by SSI, or even provide for basic care, without jeopardizing Medicaid eligibility. As long as the parents' or other family members' or friends' contributions are for supplemental benefits, they are not counted in determining the resources available to the disabled person for SSI purposes. Among permissible expenditures are medical and dental care not provided by public programs, recreation, travel, training or educational programs or rehabilitation.

The problem becomes acute when the family tries to make provisions for continuing these benefits after the death of the providers. It is hoped that the family will consult an attorney for estate planning advice at that time. If there is no planning, then the child with the disability may inherit from the parents at their death. The child may lack the ability to handle the inheritance; and, perhaps more importantly, the inheritance may cause the child to lose his or her eligibility for SSI and/or Medicaid.

Current Planning "Tools"

The attorney, as a professional advisor to the family, has to be aware of the various planning tools currently available. Among them are:

Outright gifts/bequests. These are not attractive when dealing with beneficiaries with a disability because they may lack the capacity to handle the gift or bequest. In addition, the gift or bequest will count as a resource and may disqualify the person from entitlements. The assets or property given or bequeathed will be available to creditors of the person with the disability. In addition, at death the property will pass under the laws of intestate succession, assuming the recipient lacks the capacity to make a will.

Transfers under Uniform Transfers to Minors Law. These are fine during minority, but when the person with a disability attains age 21, he or she acquires control of the custodial property. Again, the person may lack the capacity to handle the property. It will be subject to claims of his or her creditors. Certainly, it will count as a resource and may disqualify the person from eligibility for entitlements; and, at the person's death, the property passes under intestate succession, assuming the recipient lacks the capacity to make a will.

Gift or bequest to a family member. The so-called informal trust is not a viable alternative. The person entrusted with the assets may face various financial and other pressures, making it very difficult to carry out the wishes of the donor. The funds are subject to attachment by the trustee's creditors. The income earned will be taxed to the " trustee." But even more important is the problem created by the death or incapacity of the informal trustee.

Guardianship/conservatorship. Although these types of proceedings are costly and cumbersome, guardianship of the person is probably advisable. However, conservatorship may not be in the best interest of the person with a disability. The assets held in a conservatorship will be considered as a resource of the person with a disability and, therefore, may disqualify him or her from entitlement funding. The creditors of that person may seek reimbursement from the funds held in the conservatorship. It is necessary to secure court approval for most expenditures and to account annually to the court. At death of the person with a disability, the property will probably pass under the laws of intestate succession, assuming the protectee lacks the capacity to make a will.

Discretionary or special needs trust. Except for the informal trust, use of any of the other tools would jeopardize the eligibility of the beneficiary for entitlement programs. This has led attorneys and other family and estate planners to use discretionary trusts in an effort to protect eligibility. The discretionary trust is often called a " special needs trust" (SNT). Although this is not really a separate device, it is one that is becoming increasingly popular. An SNT is often an irrevocable trust, which provides supplemental benefits, sometimes referred to as a backup or emergency fund. However, an SNT does not have to be irrevocable.

In Missouri, attorneys rely upon the case of Tidrow v. Director, Missouri State Division of Family Services.⁵ That case involved the creation of a testamentary discretionary spendthrift trust for the benefit of testator's severely retarded son, Bruce, and secondarily for testator's other son, Kim, with remainder to Kim upon Bruce's death. The trust corpus was valued at approximately $175,000. The Division of Family Services determined that the assets of the trust were available to Bruce and denied him eligibility for medical assistance (i.e., Medicaid). The circuit court upheld the division. The Court of Appeals, Eastern District, held that the trust was wholly discretionary, did not require payment of any amount of principal or interest, and the testator (Bruce's father) intended the payments from the trust to supplement, not supplant, other benefits to which Bruce was entitled. The court recognized that the trustee's refusal to make any payments for Bruce's benefit might constitute an abuse of discretion because it could be in conflict with the testator's intent. However, because there had not been any showing of abuse by the trustee, the court held Bruce did not then have the legal ability to make trust assets available for his support and maintenance and, therefore, the determination that the trust assets were immediately available to Bruce was erroneous. The court remanded the case to the circuit court " with directions to remand the matter to the Director [of the Division of Family Services] for reconsideration of his decision. . . ." ⁶ There is nothing further reported showing what happened to Bruce. Tidrow was supported and followed by Missouri Div. of Family Servs. v. Wilson.⁷

The Supreme Court of Missouri has determined that certain provisions of a discretionary trust for the benefit of a person with a disability caused the corpus of the trust to be available to that person, thereby disqualifying her for Medicaid assistance. Masterson v. Department of Social Servs.⁸ In Masterson, Ms. Masterson's brother created a revocable trust for her benefit. She transferred nearly all of her assets to the trust, representing the entire trust corpus of approximately $140,000. The trust contained the usual provisions that the trustee had sole and absolute discretion for distribution of principal and income for the limited purpose of supplementing benefits provided by available governmental programs. However, the trust also provided that the trustee, in his absolute discretion, could revoke, amend or modify the trust, and upon revocation all undistributed income and principal was to be paid over and distributed to the beneficiary (the person with a disability). The Supreme Court concluded that because the trustee could exercise his discretion and pay the entire principal to her, it was then available for her benefit. This exceeded $1,000 and therefore disqualified her for Medicaid eligibility.

The author concurs with the Supreme Court's decision, but believes the rationale should be based upon the simple fact that all assets in the trust belonged to the beneficiary. One cannot dispose of his or her assets in trust and then claim poverty and eligibility for entitlement funding. Rather than deciding the case on that simple issue, the Supreme Court looked to the trustee's discretionary powers. It may be a relatively short leap in logic to next conclude that the discretionary use of principal and income makes the principal and income available to a beneficiary, thereby effectively rendering discretionary special needs trusts ineffective for accomplishing their desired purpose.

Even before the decision in Masterson, there was some risk in using discretionary trusts and SNTs because they are not based upon enabling legislation. They should not be regarded as a safe way to protect entitlement eligibility. As one author put it, " Prudent planning requires well-defined statutes." ⁹ Not only are SNTs not protected by well-defined statutes, they have become less safe as a result of Masterson.

Disinheritance

Perhaps the most drastic measure taken by some families is to disinherit the person with a disability so he or she will not have any assets. This is an overreaction to the concern that if anything is left to or for the benefit of the person with a disability there would need to be a spend down to reduce the total assets below the $1,000 Medicaid or $2,000 SSI limits before the person becomes eligible.

Missouri Family Trust

The Missouri family trust (Sections 402.199-402.217, RSMo Cum. Supp. 1999) offers a way for families to contribute to the care and quality of life of their loved ones without risking the loss of vital government funding, such as Medicaid and SSI. The Missouri family trust is designed to provide persons with a mental and/or physical disability a better quality of life from funds received through the trust without endangering governmental entitlements for which they are or may become eligible.

The idea of the family trust is to accept contributions from any source other than the beneficiaries or their respective spouses, because the receipt of such contributions could cause disqualification. The basic concept of the Missouri family trust is to facilitate the coordination and integration of private financing for individuals who have a disability, while maintaining their eligibility for entitlement programs. Included within the definition are people who are eligible for services provided by the Missouri Department of Mental Health.

Participation

The family trust has defined a person with a " disability" as any person who has a mental or physical impairment that substantially limits one or more major life activities, whether the impairment is congenital or resulted from disease or an accident.¹⁰ This definition is broad enough to include persons with mental illness, mental retardation, developmental disabilities or people who, as a result of illness or accident, have impaired ability to take care of themselves. Families, friends and guardians of persons with a disability, as defined, or who are eligible for services provided by the Department of Mental Health, may participate in the Missouri family trust.¹¹ At the time of the establishment of an account with the Missouri family trust, the beneficiary must be a Missouri resident.

A structured settlement of a medical malpractice or other personal injury claim could provide for the defendant's insurance carrier to make either a lump sum payment or periodic payments to an account established for the plaintiff's benefit. The amount so deposited, and the earnings thereon, may not be considered in determining the plaintiff's eligibility for entitlement programs. This can be very critical where a person requires extensive and expensive rehabilitation that may not be covered by Medicaid or SSI. The Missouri family trust could fund such benefits while relying upon SSI for the basics, thereby making each funding source go a little further.

All state agencies are required to disregard the Missouri family trust as a resource when determining eligibility for disability assistance under Chapter 208, RSMo.¹² The Division of Family Services has determined not to count any amounts in the Missouri family trust as available resources. The U.S. Health Care Financing Administration has ruled that principal and income of the Missouri family trust should not count in determining Medicaid eligibility. And the Social Security Administration has ruled that the Missouri family trust assets should not count as resources in determining eligibility under the SSI program.

Trustees

The Missouri family trust is administered by a board of nine trustees, divided into three categories. Three of the trustees must be members of the immediate family of a person with mental illness, and three trustees must be members of the immediate family of a person who is receiving services provided by the department. These trustees are appointed by the governor for three-year terms on a staggered basis from panels recommended by state advisory councils on mental illness and mental retardation, respectively. The third category of trustee consists of three people who are also selected and appointed by the governor. However, the only restriction or qualification for these trustees is that they are " recognized for their expertise in general business matters and procedures." ¹³

All of the appointees are subject to confirmation by the Senate. Six of the nine trustees are people who have a sensitivity to those eligible to be beneficiaries of the family trust and three of the trustees represent, in effect, the public sector. The requirement of staggered terms assures continuity of policies and programs of the board.

The Missouri family trust is not part of state government. Although it is independent of state government, the board of trustees of the family trust is a " body corporate and an instrumentality of the state." ¹⁴ As a result, the income of the Missouri family trust is exempt from tax under § 115 of the Internal Revenue Code.

The members of the board of trustees receive no compensation, but staff members are paid. The cost of administration of the Missouri family trust is paid out of the net earnings of the trust. The Missouri family trust charges a fee based upon the income earned by each of the accounts and also receives grants from various entities.

Contributions

The Missouri family trust can accept contributions from any source, other than the beneficiaries and their spouses. Contributions from them may violate federal law.¹⁵ Under the statute, there is no restriction on the type of property that can be contributed to the Missouri family trust. In addition to cash contributions, donors can also name the Missouri family trust as the beneficiary of an insurance or annuity policy.

The Missouri family trust also accepts non-cash contributions, such as marketable securities. There may be situations where real estate will be left to the Missouri family trust. Any non-cash contribution, other than insurance, will probably be sold and the proceeds invested. However, the person or persons who establish the account (called the donor) can specifically require the trustees to hold designated securities as an investment.

Contributions can be made over a period of time. The board of trustees has set $500 as the minimum contribution necessary to open an active account and $100 as the minimum amount for periodic contributions. An inactive account can be opened with an initial contribution of $100.

The monies contributed will be co-mingled and held as one trust, but with " separate accounts . . . for each designated beneficiary." ¹⁶ All moneys and proceeds from the sale of non-cash contributions will be invested. The person who establishes the account (donor) currently can select from two money market funds and from five mutual funds offered through Central Bank of Jefferson City, the depository used by the Missouri family trust. Alternatively, a donor can leave investment decisions to the board of trustees. " The income earned, after deducting administrative expenses," is allocated to each of the accounts " in proportion to the principal balance in the account for each . . . beneficiary" to the aggregate balances for all beneficiaries.¹⁷ In this respect, the allocation of income and the accounting for contributions, income earned and distributions made will be similar to that for profit sharing and pension plans.

Designation of Beneficiary and Co-Trustee

At the time the account for the beneficiary is established, the donor designates the beneficiary and a co-trustee to serve with the board of trustees. The co-trustee may be the donor or the donor can name someone else, other than the beneficiary.¹⁸ The purpose for having a co-trustee is to provide an individual advocate and representative for the beneficiary. The donor may and should designate one or more successor co-trustees so there will always be someone, preferably a family member, to represent the interests of the beneficiary.

Annual Decision On Use of Trust Fund Income

The designated co-trustee and a representative of the Missouri family trust will confer annually and " agree on the amount of income or principal" or both to be used and " the benefits to be provided." ¹⁹

Through the co-trustee, the family can control how the money will be used to benefit the beneficiary. One co-trustee may want to use the money to provide speech pathology and physical therapy for his or her beneficiary, while another co-trustee may want to use income to provide specialized transportation services for the beneficiary either to a day program, to therapy, or to work in a sheltered workshop. Other co-trustees may wish to provide dental care that is not covered by Medicaid, or even perhaps buy a VCR or stereo.

Depending upon the needs of the particular beneficiary, some co-trustees may want to use income and/or principal to provide for day programs or other benefits while the donor is still alive. After the death of the donor, it may be necessary to provide for the appropriate placement of the beneficiary. It is possible that some parents may want to make to open an account with the Missouri family trust, let the income accumulate and not draw on the income for the benefit of their child until they have passed away. At that time, their successor co-trustee will become the beneficiary's advocate and will work with the board of trustees to select appropriate services and benefits. There is tremendous flexibility and discretion available to the co-trustees.

If the donor and the board of trustees cannot agree on the use of income and/or principal, no funds are used.²⁰ The donor has absolute veto power. However, if the board of trustees and a successor co-trustee (i.e., a co-trustee other than the original donor) reach an impasse, then either the board of trustees or the successor co-trustee can request arbitration.²¹ Under those circumstances, there will be a three-member arbitration panel. The board of trustees will designate one arbitrator; the co-trustee will designate a second; and the director of the Department of Mental Health will designate the third. The decision of the majority of the arbitrators will control. This procedure avoids the situation where money is available and a beneficiary needs services, but the trustees cannot agree upon the appropriate use of the fund.

Revocation By Donor

The original donor will be permitted to revoke the gift during his or her lifetime.²² The amount of the original gift to be returned to the donor will depend upon whether or not the beneficiary has received any benefits by use of Missouri family trust income or principal. If the beneficiary has received no benefits as a result of the use of Missouri family trust income or principal, an amount equal to 100% of the then-principal balance of the account will be returned to the donor. The statute defines principal balance to be " 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." ²³ Any undistributed income will be distributed to the charitable trust, discussed below.²⁴

In the event the beneficiary has received some benefits as a result of the use of Missouri family trust income or principal, then upon revocation the donor will receive 90% of the then-principal balance of the account. The remaining balance of the account, plus undistributed income, would be distributed to the charitable trust.

Revocation By Co-Trustee Other Than Donor

A co-trustee other than the donor may revoke the gift to the trust.²⁵ Suppose that at the time a donor establishes an account and makes a contribution to the Missouri family trust for the benefit of his or her child, the donor names himself as co-trustee and the donor's other children as successor co-trustees. During the donor's lifetime he or she can revoke the gift, as previously explained. However, the donor generally does not want his or her other children, who probably are the ultimate recipients of any remaining balance in the account, to have the ability to revoke the gift and receive a portion of the balance - especially during the lifetime of the child with a disability, the designated beneficiary. But there needs to be a mechanism in the event that the child with a disability no longer needs the services or for any other reason is not eligible to participate in the Missouri family trust. For example, the donor's other children may move to another state and wish to have their brother/sister with a disability reside in that state, where they can keep and maintain closer contacts with him/her.

Under those circumstances the successor co-trustee(s), who probably will be siblings of the beneficiary, should not have a financial incentive to withdraw their brother or sister with a disability from the program. Therefore, at the time of the original contribution, the donor will be required to provide for a successor trust that, in effect, exists in the event that any money is withdrawn from the Missouri family trust during the life of the beneficiary.²⁶

The amount withdrawn from the Missouri family trust by the successor co-trustees will be required to be held in the successor trust to be used only for the benefit of the beneficiary for his or her life.²⁷ As a result, there will not be any financial incentive for the successor co-trustees to withdraw the beneficiary from the program.

The successor co-trustee, however, needs to state a " good and sufficient reason" for such withdrawal.²⁸ The board of trustees has determined that the sufficiency of the reason is subject to arbitration in accordance with the provisions of § 402.215.2(3).²⁹

If, after the death of the original donor, the gift is revoked and the beneficiary either has not received any benefits by use of Missouri family trust income and/or principal, or has received such benefits for five or fewer years, then 90% of the principal balance of the account will be distributed to the successor trust and the remaining portion of the account, plus " undistributed net income [will] be distributed to the charitable trust." ³⁰

If, at the time of revocation by the successor co-trustee, the beneficiary has received benefits by use of Missouri family trust income and/or principal for more than five years, then 75% of the principal balance of the account will be distributed to the successor trust and the remaining portion of the account, plus undistributed income, will be distributed to the charitable trust.³¹

Termination by the Board of Trustees

The board of trustees may terminate the trust in the following situations:³² if there is a judicial or administrative determination that Missouri family trust principal or income adversely affects a beneficiary's entitlement;³³ if the beneficiary ceases to be eligible to participate and neither the donor nor the successor co-trustee terminates the account;³⁴ or if the board of trustees determines that it is not practical or economical to continue the trust for a beneficiary.³⁵ In the latter case, the board's determination is subject to arbitration.³⁶

Death of a Beneficiary

If a " beneficiary dies before receiving any benefits," then 100% of the " principal balance [of the account] shall be distributed" to whomever the donor has designated; undistributed " income [will] be distributed to the charitable trust." ³⁷ Upon the death of any beneficiary who has been receiving benefits as a result of the use of family trust income and/or principal, regardless of the length of time, then 75% of the principal balance of the account will go to those persons who were designated as recipients by the original donor at the time the account for the beneficiary was established. The remaining portion of the account, plus undistributed income, will be distributed to the charitable trust.³⁸

Charitable Trust

" The charitable trust will be administered as part of the [Missouri] family trust, but as a separate [share]." ³⁹ The charitable trust will receive portions of principal and undistributed income when designated beneficiaries have either withdrawn from the program and the accounts have been revoked or the beneficiaries have died. The charitable trust may also receive contributions from individuals, businesses and foundations. The income from the charitable trust shall be used to provide benefits for those persons who either have no immediate family or whose families are financially unable to make a contribution that would provide benefits for them. The people to be benefitted by the charitable trust will be recommended to the board of trustees either by the Department of Mental Health or by others.

Spendthrift Provision

No beneficiary of the Missouri family trust can assign his or her interest, and such interest is not liable for any debt of the beneficiary.⁴⁰ Except for the rights of the donor and the successor co-trustee to revoke and to withdraw all or a portion of the account pursuant to the provisions of §§ 402.215.2(4) and 402.215.2(5), respectively, neither the income nor principal of the Missouri family trust fund shall be assignable by them or attachable by their respective creditors.⁴¹

Missouri Family Trust Fund Documents

Among the documents adopted by the board of trustees for use in implementing the Missouri family trust are the " Terms and Conditions Of The Missouri Family Trust," setting forth the main features of the trust.

The board of trustees has also developed a document entitled " Missouri Family Trust Agreement," which is similar to an adoption agreement. It incorporates the terms and conditions by reference. The agreement identifies the donor, beneficiary, co-trustee, successor co-trustee, and recipients of the distribution upon the death of the beneficiary. The donor completes the agreement, which is then signed by the donor and also signed on behalf of the board of trustees. The donor will be given an investment options agreement that will permit him or her to select from the various money market and mutual funds available. However, until there is more than $5,000 in a particular beneficiary's account, the board of trustees determines how the funds will be invested.

Income Tax

A contribution to the Missouri family trust fund generally, and not for the benefit of any particular person, is deductible pursuant to Section 170 of the Internal Revenue Code. However, contributions to the Missouri family trust for the benefit of a specific beneficiary are not deductible even though the Missouri family trust may be exempt from tax on the receipt of its income. Because the donor can designate the beneficiary and has the power to revoke, he or she is not entitled to a deduction for contributions made a beneficiary's account.

The net income allocated to each account, in the author's opinion, will be taxed to the donor because it is, in effect, a grantor trust. What happens after the donor's death is not so clear. The income probably will be taxed to the account of the respective beneficiary. If a donor irrevocably waives the right to revoke, then the tax liability for the income thereafter allocated to such donor's beneficiary's account should be taxed to the account and not the donor.

Any gifts made generally to the charitable trust will be deductible in the year made.

Estate Tax

Upon the death of a donor, the balance in the beneficiary's account established by that donor will be included in the gross estate of the donor, probably as a revocable transfer pursuant to Internal Revenue Code § 2038. But what about the distribution to the charitable trust after the death of a beneficiary? In order to be deductible, such gifts have to qualify as either charitable remainder annuity trusts or unitrusts. Because the amount to be expended for the beneficiary may vary from year to year and may include all the income and some principal, the distribution to the charitable trust may not qualify for the charitable remainder deduction. However, the donor, when completing the agreement to establish an account, may direct the distribution of income so as to qualify as an annuity trust or unitrust.

Planning

In considering whether to recommend the use of a regular or discretionary trust or the Missouri family trust, an attorney has to weigh several factors, including the relative costs of each. In addition to the administrative costs that would be incurred by each type of trust, the Missouri family trust has an additional cost -- the portion distributable to the charitable trust. Although the administrative costs of the Missouri family trust may be comparable to, or even lower than, any other special needs trust, the forfeiture feature may make the Missouri family trust more costly.

One has to weigh the advantages, also. The Missouri family trust offers all the protection of any other special needs trust -- plus two unique features. First, the Missouri family trust guarantees protection of eligibility for entitlement programs. With that comes peace of mind; for many parents of children with a disability, that benefit outweighs the cost. Second, the Missouri family trust is administered by people who are sensitive to the needs of persons with disabilities and their families. These factors make the Missouri family trust most attractive to all families with a member who has a disability.

Conclusion

The Missouri family trust assures maximum family control, while maintaining flexibility to provide for different events as they occur in the future.

For that large group of low- and middle-income families who have a modest amount to be left for their family member with a disability, the Missouri family trust offers a unique opportunity not previously available. These people have not been able to afford a separate trust for their family member. The cost of establishing and administering such a trust would have been unreasonably high compared to the size of the trust. Until now, the use of such a trust would have jeopardized the eligibility of the family member for entitlement programs.

Now, they have a trust which they can afford -- one that will accept modest contributions and will not adversely affect eligibility. Furthermore, it will be a trust in which they can actively participate in the decisions on the use of Missouri family trust income and/or principal for the benefit of their family member.

For those people who have already created trusts or made other arrangements for their family members with a disability, they will probably leave those plans in place, although they may want to review them with their attorneys and see whether they prefer to use the Missouri family trust. For those who have existing revocable trusts, they may want to open an account with the Missouri family trust for the minimum amount and amend then existing trust to authorize the trustee to make a contribution to the Missouri family trust, should that be in the beneficiary's best interest. In that way, they can assure more flexibility in the future.

Overall, using the Missouri family trust may be a better and safer way to protect Medicaid and/or SSI eligibility than a discretionary or special needs trust.

Endnotes

¹ Mr. Zafft is a principal in the firm of Blumenfeld, Kaplan & Sandweiss, P.C., St. Louis. He received his A.B. and J.D. from Washington University and has an LLM (in taxation) from New York University.

² 42 U.S.C. § 1396a.

³ 42 U.S.C. § 1396a(a)(17)(B).

⁴ 42 U.S.C. § 1382(g).

⁵ 688 S.W.2d 9 (Mo. App. E.D. 1985).

⁶ 688 S.W.2d at 14.

⁷ 849 S.W.2d 104 (Mo. App. W.D. 1993).

⁸ 969 S.W.2d 746 (Mo. banc 1998).

⁹ Richard J. Bergstrom, Special Needs Trust: Financial And Estate Planning For The Disabled: How to Structure an Estate Plan That Won't Jeopardize a Disabled Child's Eligibility for Public Assistance, Journal Of Accountancy, July 1991, at 57.

¹⁰ Section 402.200(4), RSMo Supp. 1999.

¹¹ Section 402.205.1, RSMo Supp. 1999.

¹² Section 402.205.2, RSMo Supp. 1999.

¹³ Section 402.210.1(3), RSMo Supp. 1999.

¹⁴ Section 402.210.1, RSMo Supp. 1999

¹⁵ Section 402.215.2(1), RSMo Supp. 1999. See also footnote 3.

¹⁶ Section 402.215.2(1), RSMo Supp. 1999.

¹⁷ Id.

¹⁸ Section 402.215.2(2), RSMo Supp. 1999.

¹⁹ Section 402.215.2(3), RSMo Supp. 1999.

²⁰ Id.

²¹ Id.

²² Section 402.215.2(4), RSMo Supp. 1999.

²³ Section 402.200(7), RSMo Supp. 1999.

²⁴ Section 402.215.2(4), RSMo Supp. 1999.

²⁵ Section 402.215.2(5), RSMo Supp. 1999.

²⁶ Sections 402.200(10) and 402.215.2(5), RSMo Supp. 1999.

²⁷ Section 402.215.2(11), RSMo Supp. 1999.

²⁸ Section 402.215.2(5), RSMo Supp. 1999.

²⁹ See 21 C.S.R. 10-2.010, Paragraph 5 of the Terms and Conditions of the Missouri Family Trust, as adopted by the Board of Trustees on December 15, 1990 and amended on November 2, 1996 and April 17, 1999 (hereinafter referred to as the " Terms and Conditions" ).

³⁰ Section 402.215.2(7), RSMo Supp. 1999.

³¹ Id.

³² Section 402.215.2(6), RSMo Supp. 1999.

³³ See 21 C.S.R. 10-2.010, Paragraph 6(a) of the Terms and Conditions.

³⁴ Section 402.215.2(6), RSMo Supp. 1999.

³⁵ 21 C.S.R. 10-.2010, Paragraph 6(b) of the Terms and Conditions.

³⁶ Ibid.

³⁷ Section 402.215.2(8), RSMo Supp. 1999.

³⁸ Id.

³⁹ Section 402.215.2(12), RSMo Supp. 1999.

⁴⁰ Section 402.217.1, RSMo Supp. 1999.

⁴¹ Section 402.217.2, RSMo Supp. 1999.