Can you change your mind about having a trust, once it’s established and funded? It depends. If the trust is revocable, the settlor can change it, or close it down, at any time. If the trust is irrevocable, however, it is very difficult to change. Most trusts allow “administrative” amendment by either the settlor or the trustee. But changing beneficiaries is not within the powers usually reserved for the settlor or trustee. With only or two exceptions, all of the trusts that Community Trust manages are irrevocable.
A major reason that our trusts are irrevocable is that it is a requirement for all Medicaid-exempt trusts. The state considers irrevocability important, so that someone cannot remove the requirement for paying back the Medicaid program, or give all of the assets back to the settlor, after the beneficiary has received the medical benefits that were made possible by the Medicaid exemption.
As this suggests, one of the most important consequences of irrevocability is that the settlor cannot simply demand the property back from the trustee. If problems or disagreements arise over how to use the property, Community Trust is committed to a problem-solving approach aimed at maintaining the relationship.
When a trust is irrevocable, unforeseen circumstances can develop that the settlor wishes had been known when he or she created the trust. For example, a trust might name someone (called a “remainderman”) who has no children to receive the remainder, and gives it to someone else if the remainderman does not outlive the beneficiary. But suppose the remainderman later has children. The settlor might wish that she had named those children to receive the trust remainder if the remainderman dies.
A Trust Protector can be given the power to change provisions like the one described above, as long as they don’t violate the intentions of the settlor. Many of the individual SNTs that Community Trust manages have Trust Protectors.
Trust Protectors cannot, however, be given the power to remove Medicaid payback provisions if the trust is intended to qualify as an exempt asset for purposes of Medicaid or Supplemental Security Income (SSI). Both Medicaid and SSI require the payback provisions to be unchangeable in order to allow the beneficiary to qualify for benefits.