There are two situations where a disability trust (individual or pooled) must be created by a Conservator:
1. If the beneficiary already has a Conservator, the trust will have to be established by the conservator.
2. If the person does not have a Conservator, but—
- (a) he or she is not competent to sign a legal agreement; and
- (b) he or she has no Durable Power of Attorney, or
- (c) he or she does have a Durable Power of Attorney, but it does not give the Agent the right powers to establish a trust (as determined by Community Trust),
then a Conservator will have to be appointed in order to create the trust.
The type of procedure that is followed to obtain authority as a Conservator depends upon the circumstances:
- If there already is a Conservator, he or she must obtain a Decree of Expanded Authority from the Probate Court. In Massachusetts, this is done by filing a Petition for Expanded Authority, and following court rules for medical evaluation, notice, review by a guardian ad litem, and a hearing. The process can be complicated, and it usually takes several weeks. Most Conservators who are not lawyers will hire a lawyer for this process.
- If the proposed beneficiary does not already have a Conservator, one must be appointed, and the appointment must include authority to establish a special needs trust. In Massachusetts, this is done by filing a Petition for Appointment of Conservator, which allows two kinds of appointments—
- a permanent appointment (which may include a temporary period, prior to permanent appointment, if a Motion for Temporary Conservator is filed with the Petition); or
- a single-transaction appointment, which gives authority to establish a special needs trust, without any other powers, or any ongoing authority after the trust is established.
The procedure for appointing a Conservator is similar to a Petition for Expanded Authority. It requires medical evaluation, notice, review by a guardian ad litem, and a hearing. Most Conservators who are not lawyers will hire a lawyer for this process.
If a Conservator or a Decree for Expanded Authority is needed, but the need for the trust is urgent, Community Trust usually will accept the trust, on condition that a Petition is filed promptly to obtain the necessary authority, retroactively (“*nunc pro tunc”**)* to the date that we accepted the trust. No distributions can be allowed until a Conservator has ratified the trust in this manner.
Many trusts with Community Trust are established by Conservators. The same rules and procedures apply, whether the trust is an individual Special Needs Trust, or a Pooled Trust account. Community Trust cannot provide legal advice, but we will do our best to respond to any questions that you may have about how Conservators can establish trusts.