[NAME OF TRUST] SPECIAL NEEDS TRUST AGREEMENT

(Wisconsin Irrevocable Third-Party Supplemental Needs Trust)

[// GUIDANCE: Replace bracketed placeholders (e.g., “[SETTLOR NAME]”) with client-specific information. Delete GUIDANCE comments prior to execution.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Establishment of Trust & Funding
4. Dispositive Provisions
5. Trustee Powers & Duties
6. Representations & Warranties
7. Covenants & Restrictions
8. Default, Removal & Remedies
9. Risk Allocation
10. Dispute Resolution
11. General Provisions
12. Execution Block

1. DOCUMENT HEADER

1.1 Title and Parties
This Special Needs Trust Agreement (“Trust Agreement”) is made effective as of [EFFECTIVE DATE] (“Effective Date”) by and between:

a. [SETTLOR NAME], an individual residing at [ADDRESS] (“Settlor”); and
b. [TRUSTEE NAME], whose address is [ADDRESS] (“Trustee”).

1.2 Recitals
a. Settlor desires to establish an irrevocable supplemental needs trust under Wisconsin law to provide for the special needs of [BENEFICIARY NAME] (“Beneficiary”) without disqualifying Beneficiary from means-tested government benefits.
b. This Trust is intended to qualify as a third-party discretionary supplemental needs trust under 42 U.S.C. § 1396p(d)(4)(A) and the Wisconsin Trust Code, Wis. Stat. ch. 701 (the “Code”).
c. The parties enter into this Trust Agreement for good and valuable consideration, the receipt and sufficiency of which are acknowledged.

1.3 Governing Law & Jurisdiction
This Trust shall be governed by and construed in accordance with the substantive laws of the State of Wisconsin (“Governing Law”). Exclusive jurisdiction and venue for all matters relating to the administration or construction of this Trust shall reside in the [NAME OF COUNTY] County Circuit Court, Probate Division (“Forum Court”).

2. DEFINITIONS

For ease of reference, capitalized terms have the meanings set forth below; singular includes plural and vice-versa.

“Administration Expenses” – All ordinary and necessary expenses incurred in administering the Trust, including but not limited to taxes, professional fees, and court costs.

“Arbitration Rules” – The then-current Commercial Arbitration Rules of the American Arbitration Association, as modified by Section 10.3.

“Beneficiary” – [BENEFICIARY NAME], born [DOB], currently diagnosed with [GENERAL DESCRIPTION OF DISABILITY].

“Code” – The Wisconsin Trust Code, Wis. Stat. ch. 701, as amended.

“Government Benefits” – Supplemental Security Income (“SSI”), Medicaid, and any other federal, state, or local means-tested public benefit programs.

“Qualified Disability Expenses” – Expenses for the sole benefit of the Beneficiary that enhance quality of life and are not inconsistent with SSI or Medicaid eligibility, including but not limited to education, recreation, transportation, medical services not covered by Government Benefits, and personal care services.

“Remainder Beneficiaries” – Those persons or entities identified in Section 4.4 entitled to principal upon final termination.

“Trust Estate” – All property, tangible or intangible, transferred to the Trust and all additions and accretions thereto.

“Trustee” – The individual or corporate fiduciary serving from time to time under this Agreement, including any Co-Trustee or Successor Trustee.

3. ESTABLISHMENT OF TRUST & FUNDING

3.1 Creation and Irrevocability
The Settlor hereby irrevocably transfers to the Trustee the property described in Schedule A (attached hereto and incorporated herein) to hold, manage, and distribute in accordance with this Agreement. The Trust is irrevocable; Settlor retains no right to amend, revoke, or control the Trust except as expressly provided herein.

3.2 Additional Contributions
Third parties may, with Trustee’s consent, add property to the Trust by gift, bequest, or beneficiary designation referencing this Trust. The Trustee shall reject any contribution that could disqualify Beneficiary from Government Benefits or impose adverse tax consequences.

3.3 Segregation of Trust Assets
All Trust assets shall be titled in the name “[TRUST NAME], [TRUSTEE NAME], Trustee” and kept separate from Trustee’s individual assets.

4. DISPOSITIVE PROVISIONS

4.1 Sole Benefit & Discretionary Standard
Except as expressly permitted herein, the Trust Estate shall be used solely for the benefit of the Beneficiary. Distributions are wholly within Trustee’s discretion; Beneficiary holds no enforceable right to compel distributions, and no standard of support (e.g., health, education, maintenance, support) shall apply.

4.2 Distribution Guidelines
a. Permissible Purposes. Trustee may distribute income or principal for Qualified Disability Expenses, considering the effect on Government Benefits.
b. Prohibited Distributions. Trustee shall not distribute cash or in-kind support that would constitute “income” or “resources” under SSI or Medicaid rules unless Trustee, after consultation with qualified benefits counsel, determines the benefit outweighs the potential reduction in Government Benefits.
c. Supplemental Intent. Trust distributions shall supplement, not supplant, benefits otherwise available from any governmental or private source.

4.3 Mandatory Administrative Distributions
Trustee may pay Administration Expenses without court approval.

4.4 Final Termination
Upon Beneficiary’s death or earlier termination pursuant to Section 8.4, and after payment of Administration Expenses, the remaining Trust Estate shall pass to the following Remainder Beneficiaries, per stirpes, [LIST OR “as appointed by Settlor’s Will”].

[// GUIDANCE: For third-party SNTs, no Medicaid payback is required. If drafting a first-party SNT, insert mandatory payback provision to Wisconsin Department of Health Services.]

5. TRUSTEE POWERS & DUTIES

5.1 Standard of Care
The Trustee shall administer the Trust as a prudent person would, consistent with Wis. Stat. § 701.0804, and with a duty of loyalty to Beneficiary.

5.2 Enumerated Powers
Subject to the limitations herein, Trustee may:
1. retain, buy, sell, or exchange investments;
2. delegate investment functions to qualified agents;
3. employ professionals and pay reasonable compensation;
4. execute documents;
5. compromise or settle claims;
6. borrow or lend on secured or unsecured basis;
7. manage real property;
8. create special needs sub-accounts or ABLE account contributions;
9. do all acts necessary for prudent administration.

5.3 Duty to Monitor Eligibility
Trustee shall:
a. maintain current knowledge of relevant SSI/Medicaid rules;
b. obtain annual benefits verification;
c. adjust distribution practices to preserve eligibility.

5.4 Accounting & Reporting
Trustee shall render an annual written accounting to Beneficiary’s legal representative and, if requested, to the Forum Court. Unless a written objection is delivered within 60 days, the accounting shall be deemed approved.

5.5 Bond & Compensation
a. Bond. [“Waived” or specify amount].
b. Compensation. Trustee is entitled to reasonable compensation consistent with Wis. Stat. § 701.0708 or in accordance with the fee schedule attached as Schedule B.

5.6 Successor & Co-Trustees
[PROVIDE SUCCESSOR LIST AND APPOINTMENT MECHANISM.] Co-Trustees must act unanimously unless Section 5.6(c) authorizes majority action.

6. REPRESENTATIONS & WARRANTIES

6.1 Settlor
a. Authority & Capacity. Settlor represents that Settlor has full capacity and authority to create this Trust and transfer assets thereto.
b. Absence of Creditors. No voluntary or involuntary bankruptcy or insolvency proceedings are pending against Settlor.

6.2 Trustee
a. Qualifications. Trustee represents Trustee is qualified and willing to serve.
b. Fiduciary Insurance. Trustee maintains (or shall obtain) fiduciary liability coverage in the minimum amount of [AMOUNT].
c. No Conflicts. Trustee warrants absence of conflicts materially adverse to the Beneficiary.

6.3 Survival
All representations and warranties herein shall survive execution and remain in effect throughout the Trust administration.

7. COVENANTS & RESTRICTIONS

7.1 Spendthrift Clause
Pursuant to Wis. Stat. § 701.0502, the Beneficiary’s interest is not subject to voluntary or involuntary alienation, assignment, or seizure by any creditor.

7.2 Notice Obligations
a. Trustee shall notify Beneficiary’s representative within 30 days of any material change in Trust administration.
b. Beneficiary (or representative) shall notify Trustee within 30 days of any change that may affect eligibility for Government Benefits.

7.3 Compliance Covenant
Trustee shall administer the Trust in a manner consistent with 42 U.S.C. § 1396p(d)(4)(A) and applicable POMS provisions, as amended.

8. DEFAULT, REMOVAL & REMEDIES

8.1 Events of Default
The following constitute “Default”:
a. Trustee’s breach of fiduciary duty;
b. Conviction of Trustee for dishonesty or breach of trust;
c. Trustee’s incapacity or resignation without qualified successor.

8.2 Notice & Cure
Any interested party may deliver written notice citing specific Defaults. Trustee shall have 30 days to cure, except defaults under 8.1(b) are incurable.

8.3 Removal & Appointment of Successor
If Default remains uncured, the Forum Court—or, if allowed, a Protector or Advisory Committee designated in Schedule C—may remove the Trustee and appoint a Successor Trustee.

8.4 Early Termination
The Forum Court may terminate the Trust if (i) asset value falls below [MINIMUM AMOUNT] rendering administration uneconomical, and (ii) termination will not impair Government Benefits.

9. RISK ALLOCATION

9.1 Trustee Indemnification
The Trustee and its agents shall be indemnified from the Trust Estate against all claims, liabilities, and expenses (including attorneys’ fees) arising out of Trust administration, except for acts of willful misconduct or gross negligence.

9.2 Limitation of Liability
Liability of the Trustee, in any event, shall be limited to the extent of Trust assets administered by the Trustee at the time the liability is determined (“Liability Cap”). No personal assets of the Trustee shall be subject to satisfaction of Trust liabilities.

9.3 Insurance
Trustee shall maintain errors & omissions or fiduciary liability insurance in an amount not less than [AMOUNT]. Premiums may be paid from the Trust Estate.

9.4 Force Majeure
Trustee shall not be liable for failure to perform resulting from events beyond reasonable control, including acts of God, governmental orders, or market closures, provided Trustee acts diligently to mitigate.

10. DISPUTE RESOLUTION

10.1 Governing Law
This Agreement and any dispute shall be governed by the laws of the State of Wisconsin, without regard to conflict-of-laws principles.

10.2 Forum Selection
The Forum Court shall retain exclusive jurisdiction. Nothing herein waives the probate court’s statutory jurisdiction.

10.3 Limited Arbitration
a. Scope. Non-fiduciary disputes between Settlor and Trustee arising prior to Beneficiary’s death and not affecting Government Benefits may, at the election of either party, be resolved by binding arbitration.
b. Procedure. Arbitration shall be conducted in [CITY, WI] under the Arbitration Rules, with one neutral arbitrator having at least 10 years’ trust law experience.
c. Court Oversight. Issues relating to construction, modification, or termination of the Trust, or approval of accounts, shall remain within the exclusive purview of the Forum Court.

10.4 Jury Waiver
The parties acknowledge that probate proceedings in Wisconsin are tried to the court; accordingly, no jury trial right exists or is waived.

10.5 Injunctive Relief
Nothing in this Section shall limit a party’s right to seek injunctive or equitable relief from the Forum Court to enforce fiduciary duties or protect Trust assets.

11. GENERAL PROVISIONS

11.1 Amendment & Reformation
The Trust is irrevocable. However, the Forum Court may, upon petition and notice to all interested parties, modify this Trust to (i) conform with changes in Governing Law or (ii) preserve Beneficiary’s eligibility for Government Benefits, consistent with Wis. Stat. § 701.0412.

11.2 Assignment
Except as otherwise provided, no party may assign rights or delegate duties under this Agreement without written consent of the other parties and, if required, approval of the Forum Court.

11.3 Successors & Assigns
This Agreement binds and benefits the parties and their lawful successors and assigns.

11.4 Severability
If any provision is held invalid, the remainder shall be enforced to the maximum extent permitted, and the invalid provision shall be reformed to achieve its intent consistent with Governing Law and Government Benefits rules.

11.5 Integration
This Agreement constitutes the entire agreement concerning the Trust and supersedes all prior statements. No oral statements shall vary its terms.

11.6 Counterparts & Electronic Signatures
This Agreement may be executed in counterparts, each deemed an original. Signatures transmitted by electronic means shall have the same force and effect as originals.

12. EXECUTION BLOCK

IN WITNESS WHEREOF, the parties have executed this Trust Agreement as of the Effective Date first written above.

SETTLOR

[SETTLOR NAME]

TRUSTEE – ACCEPTANCE OF TRUST

The undersigned accepts the Trust and agrees to administer it in accordance with its terms and applicable law.

[TRUSTEE NAME], Trustee

NOTARY ACKNOWLEDGMENT

State of Wisconsin )
County of ____ ) ss.

On this _ day of _, 20__, before me, a Notary Public, personally appeared [SETTLOR NAME] and [TRUSTEE NAME], known to me or satisfactorily proven to be the persons whose names are subscribed to the foregoing instrument, and acknowledged that they executed the same for the purposes therein contained.

Notary Public, State of Wisconsin
My Commission Expires: ____

SCHEDULE A – INITIAL TRUST PROPERTY

1. [DESCRIPTION OF ASSET 1]
2. [DESCRIPTION OF ASSET 2]

SCHEDULE B – TRUSTEE FEE SCHEDULE

[Insert percentage or hourly rates.]

SCHEDULE C – PROTECTOR / ADVISORY COMMITTEE

[Optional – detail appointment, powers, and removal.]

[// GUIDANCE: Review Wisconsin Medicaid eligibility rules, Wis. Stat. ch. 49, and Social Security POMS SI 01120.200 et seq. to ensure distributions remain non-countable. Confirm that beneficiary is not a self-settled trust; if self-settled, insert mandatory Medicaid payback clause and revise citations accordingly.]