[DRAFT] GEORGIA SPECIAL NEEDS TRUST AGREEMENT

(Third-Party Supplementary (Special) Needs Trust for the Benefit of an Individual with a Disability)

[// GUIDANCE: This is a sophisticated template designed for customization by licensed Georgia counsel. All bracketed items must be completed or revised to reflect the client’s facts and objectives.]

TABLE OF CONTENTS

1. Document Header
2. Recitals
3. Definitions
4. Creation of Trust & Funding
5. Purpose and Governing Standards
6. Distributions for Beneficiary
7. Trustee Provisions
8. Representations & Warranties
9. Covenants & Restrictions
10. Default & Remedies
11. Risk Allocation
12. Dispute Resolution
13. General Provisions
14. Execution Block
15. Exhibits / Schedules

1. DOCUMENT HEADER

SPECIAL NEEDS TRUST AGREEMENT
This Special Needs Trust Agreement (“Trust Agreement”) is made and entered into as of [EFFECTIVE DATE] (“Effective Date”) by and among:

1. [SETTLOR NAME], an individual residing at [Address] (“Settlor”);
2. [TRUSTEE NAME], [individual OR corporate] trustee, whose principal address is [Address] (“Trustee”); and
3. [BENEFICIARY NAME], an individual with a disability as defined herein, residing at [Address] (“Beneficiary”).

2. RECITALS

A. Settlor desires to establish a trust for the sole benefit of Beneficiary to supplement, not supplant, any public assistance benefits to which Beneficiary is or may become entitled.
B. Beneficiary is expected to qualify, or currently qualifies, for means-tested governmental benefits, including but not limited to Supplemental Security Income (“SSI”) and Medicaid.
C. This Trust is intended to comply with, and be interpreted consistently with, federal and Georgia law governing supplemental and special needs trusts, including 42 U.S.C. § 1396p and the Georgia Trust Code, O.C.G.A. § 53-12-1 et seq.
D. Trustee is willing to hold, administer, and distribute the Trust Estate under the terms set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Settlor hereby delivers the initial corpus described in Schedule A to Trustee, to be held, administered, and distributed as follows:

3. DEFINITIONS

For purposes of this Trust Agreement, capitalized terms have the meanings set forth below. Any term not defined herein shall have its ordinary meaning or the meaning assigned by applicable law.

“Applicable Law” means all federal, state, and local statutes, regulations, and rules governing this Trust, including but not limited to 42 U.S.C. § 1396p and O.C.G.A. § 53-12-1 et seq.

“Beneficiary” has the meaning given in the Document Header and includes any court-appointed guardian or personal representative acting on Beneficiary’s behalf.

“Disability” means a physical or mental impairment meeting the definition of disability under 42 U.S.C. § 1382c(a)(3).

“Distributing Fiduciary” means Trustee and any Successor Trustee empowered to make distributions.

“Forbidden Distribution” means any distribution that (i) is made directly to Beneficiary; (ii) is made for food or shelter such that it would constitute countable income or resources under SSI or Medicaid; or (iii) otherwise causes Beneficiary to lose or reduce means-tested benefits, except as expressly permitted herein.

“Government Benefits” means SSI, Medicaid, or any other public assistance program conditioned upon the beneficiary’s income or resource level.

“Qualified Disbursement” means a distribution permitted under Section 6.2.

“Successor Trustee” means any trustee appointed pursuant to Section 7.7.

“Trust” or “Trust Estate” means all property transferred to Trustee pursuant to this Trust Agreement, all reinvestments thereof, and all accumulations and additions thereto.

4. CREATION OF TRUST & FUNDING

4.1 Irrevocable Trust. This Trust is irrevocable. Settlor shall have no power to alter, amend, revoke, or terminate the Trust except as expressly provided herein or as required by Applicable Law.

4.2 Transfer of Property. Settlor hereby transfers to Trustee the property listed in Schedule A, receipt of which Trustee acknowledges. Additional property may be added by Settlor or any third party at any time, subject to Trustee’s acceptance and the terms of this Trust.

4.3 Separate Property. Trust property shall be held separate and apart from the assets of Trustee and Settlor and shall not be commingled.

5. PURPOSE AND GOVERNING STANDARDS

5.1 Primary Purpose. The primary purpose of this Trust is to provide for Beneficiary’s supplemental care and comfort without disqualifying Beneficiary from Government Benefits.

5.2 Governing Standards. Trustee shall administer the Trust in accordance with:
a. Applicable Law;
b. The distribution standards of Section 6; and
c. The prudent investor rule under O.C.G.A. § 53-12-340 et seq.

5.3 No Duty to Distribute. Except as expressly provided, Trustee shall have no duty to make distributions; discretionary powers herein are intended to be exclusive and absolute, subject only to the fiduciary duties imposed by Applicable Law.

6. DISTRIBUTIONS FOR BENEFICIARY

6.1 Distribution Standard. Trustee may, in Trustee’s sole and absolute discretion, make or withhold Qualified Disbursements for Beneficiary’s special needs—that is, needs not met by Government Benefits—taking into account other resources available to Beneficiary.

6.2 Qualified Disbursements. Subject to Section 6.3, Trustee may pay for:
1. Medical, dental, vision, and hearing services not covered by Government Benefits;
2. Rehabilitation, therapies, and assistive technologies;
3. Educational, vocational, or recreational activities;
4. Transportation, including adaptive vehicles;
5. Caregivers and personal‐care assistants;
6. Insurance premiums;
7. Legal, accounting, and advocacy services; and
8. Any other goods or services enhancing Beneficiary’s quality of life, provided such disbursement is not a Forbidden Distribution.

6.3 Limitations.
a. Trustee shall not make Forbidden Distributions without obtaining advance written confirmation from qualified counsel that the distribution will not adversely affect Beneficiary’s eligibility for Government Benefits.
b. Trustee may make in-kind purchases or direct payments to third-party vendors to avoid countable income.
c. Trustee shall document each disbursement in compliance with Medicaid and SSI reporting requirements.

6.4 Trust Termination. This Trust shall terminate upon (i) Beneficiary’s death, or (ii) exhaustion of the Trust Estate, whichever occurs first.

6.5 Residual Distribution. Upon termination, Trustee shall distribute the remaining Trust Estate:
1. First, to satisfy any enforceable lien or claim by the State of Georgia or any state providing Medicaid benefits to Beneficiary, but only to the extent required by Applicable Law for a third-party trust; and
2. Second, to the remainder beneficiaries named on Schedule B, per stirpes; or, if none, to Settlor’s heirs at law.

[// GUIDANCE: If drafting a first-party (d)(4)(A) trust, replace Section 6.5 with a mandatory Medicaid payback clause.]

7. TRUSTEE PROVISIONS

7.1 Powers of Trustee. Trustee shall have all powers granted to trustees under O.C.G.A. § 53-12-261, as amended, and any other powers reasonably necessary to carry out the purposes of this Trust, including without limitation:
a. To invest and reinvest Trust assets;
b. To retain, sell, or exchange property;
c. To employ professionals and delegate duties;
d. To compromise claims and litigation; and
e. To execute documents and perform all acts deemed necessary or advisable.

7.2 Fiduciary Duties. Trustee shall act in good faith, in Beneficiary’s best interest, and in accordance with Applicable Law.

7.3 Trustee Compensation. Trustee shall be entitled to reasonable compensation in accordance with O.C.G.A. § 53-12-210 or as otherwise agreed in writing.

7.4 Trustee Indemnification. Trustee shall be indemnified out of, and to the extent of, the Trust Estate against any claim, loss, or liability (including reasonable attorneys’ fees) arising from Trustee’s administration of the Trust, except for loss or liability resulting from Trustee’s gross negligence, willful misconduct, or fraud.

7.5 Liability Cap. In no event shall Trustee be personally liable in excess of the value of the Trust Estate for any act or omission in the administration of the Trust.

7.6 Bond. No bond shall be required of any Trustee unless mandated by a court of competent jurisdiction.

7.7 Successor Trustees.
a. Designation. [NAME OR METHOD OF APPOINTMENT] shall serve as Successor Trustee upon the resignation, incapacity, or removal of the Trustee.
b. Acceptance. A Successor Trustee shall accept the trusteeship in writing and shall thereafter be vested with all powers granted herein.
c. Resignation. Trustee may resign by providing 30 days’ written notice to Settlor (if living) and to Beneficiary or Beneficiary’s legal representative.

7.8 Removal. A court of competent jurisdiction may remove Trustee for cause consistent with O.C.G.A. § 53-12-304.

7.9 Trustee Records & Reporting. Trustee shall maintain accurate books and records and provide annual accountings to Beneficiary (or Beneficiary’s guardian) and, upon request, to the Georgia Division of Family & Children Services (“DFCS”).

8. REPRESENTATIONS & WARRANTIES

8.1 Settlor. Settlor represents and warrants that:
a. Settlor has full legal authority to transfer the property described in Schedule A;
b. All transferred property is free of liens and encumbrances except as disclosed in Schedule C; and
c. Settlor understands and intends that this Trust is irrevocable.

8.2 Trustee. Trustee represents and warrants that:
a. Trustee is qualified and willing to serve;
b. Trustee has reviewed the terms of this Trust and Applicable Law; and
c. Trustee shall administer the Trust in strict compliance with the purpose stated herein.

8.3 Survival. The representations and warranties set forth in this Section 8 shall survive execution of this Trust Agreement.

9. COVENANTS & RESTRICTIONS

9.1 Compliance with Government Benefits Rules. Trustee shall (i) monitor applicable SSI and Medicaid regulations; (ii) consult with qualified counsel as needed; and (iii) timely report Trust activity as required by Government Benefits agencies.

9.2 No Commingling. Trust assets shall not be commingled with the personal assets of Trustee or any other person, except in a pooled investment vehicle permissible under Applicable Law.

9.3 Spendthrift Protection. To the maximum extent permitted by law, Beneficiary’s interest in the Trust shall not be subject to anticipation, assignment, encumbrance, or voluntary or involuntary transfer, nor shall it be liable for Beneficiary’s debts.

9.4 Notice of Change in Circumstances. Beneficiary (or Beneficiary’s guardian) shall notify Trustee in writing within 30 days of any change in Beneficiary’s eligibility for Government Benefits.

10. DEFAULT & REMEDIES

10.1 Events of Default. The following constitute events of default:
a. Trustee’s breach of fiduciary duty;
b. Material mismanagement or misappropriation of Trust assets; or
c. Trustee’s failure to provide required accountings within 60 days after written notice.

10.2 Cure Period. Trustee shall have 30 days from receipt of written notice to cure any default, unless the default is incapable of cure or has resulted in material harm to Beneficiary.

10.3 Remedies. Upon an uncured default, any interested party may petition the [COUNTY] Probate Court of Georgia for injunctive relief, removal of Trustee, surcharge, or other equitable relief as permitted by law.

10.4 Attorneys’ Fees. The prevailing party in any action to enforce this Trust shall be entitled to recover reasonable attorneys’ fees and costs, payable out of the Trust Estate except as otherwise ordered by the court.

11. RISK ALLOCATION

11.1 Indemnification. See Section 7.4 (Trustee Indemnification).

11.2 Limitation of Liability. See Section 7.5 (Liability Cap).

11.3 Insurance. Trustee shall maintain fiduciary liability insurance with coverage limits not less than [$_____] per claim, payable from Trust assets.

11.4 Force Majeure. Trustee shall not be liable for delay or failure in performance caused by events beyond Trustee’s reasonable control, provided Trustee exercises commercially reasonable diligence to resume performance.

12. DISPUTE RESOLUTION

12.1 Governing Law. This Trust Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflict-of-law principles.

12.2 Forum Selection. Exclusive jurisdiction and venue for any proceeding arising under or related to this Trust shall lie in the Probate Court of [COUNTY], Georgia.

12.3 Limited Arbitration. Notwithstanding Section 12.2, disputes exclusively involving accounting issues under $50,000 may, upon mutual written agreement, be submitted to arbitration administered by [Arbitration Organization] pursuant to its rules then in effect. The arbitrator’s award shall be enforceable in the Probate Court.

12.4 Injunctive Relief. Nothing in this Section 12 shall limit the right of any party to seek temporary, preliminary, or permanent injunctive relief from the Probate Court to protect the Trust Estate or enforce fiduciary duties.

12.5 Jury Waiver. Consistent with Georgia Probate Court practice, the parties acknowledge that matters concerning the administration of a trust are generally resolved without a jury. No specific jury-trial waiver is intended or required.

13. GENERAL PROVISIONS

13.1 Amendment & Reformation. This Trust may be reformed by court order to conform to Applicable Law or to preserve Beneficiary’s eligibility for Government Benefits, but only to the extent such reformation does not contravene the primary purpose of the Trust.

13.2 No Assignment. Neither this Trust nor any interest herein may be assigned or delegated except as expressly provided.

13.3 Successors & Assigns. This Trust shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

13.4 Severability. If any provision of this Trust is held invalid or unenforceable, such invalidity shall not affect the remaining provisions, which shall remain in full force and effect.

13.5 Entire Agreement. This Trust Agreement, together with its Schedules and any written amendments, constitutes the entire agreement among the parties with respect to the subject matter hereof.

13.6 Counterparts; Electronic Signatures. This Trust may be executed in counterparts, each of which shall be deemed an original. Signatures transmitted electronically (e.g., via PDF or reputable e-signature platform) shall be deemed originals for all purposes.

14. EXECUTION BLOCK

IN WITNESS WHEREOF, the parties hereto have executed this Special Needs Trust Agreement as of the Effective Date.

Settlor:

[SETTLOR NAME]

Trustee:

[TRUSTEE NAME], Trustee

Beneficiary (acknowledgment only):

[BENEFICIARY NAME]

STATE OF GEORGIA )
COUNTY OF _ )

On this _ day of _, 20_, before me, the undersigned Notary Public, personally appeared ______, known to me or satisfactorily proven to be the person(s) whose name(s) is/are subscribed to the foregoing instrument, and acknowledged that he/she/they executed the same for the purposes therein contained.

Notary Public
My Commission Expires: _____

[// GUIDANCE: Georgia generally does not require witnesses for trust instruments, but local practice or recording requirements may differ. Consult O.C.G.A. § 53-12-23 and county procedures.]

15. SCHEDULES

Schedule A – Initial Trust Corpus
Schedule B – Remainder Beneficiaries
Schedule C – Liens and Encumbrances (if any)

[END OF DOCUMENT]