Effective 28 Aug 2011

402.203. Contribution of assets, by whom — trust account to be created — cotrustees and successors — breach of fiduciary duty, effect of — death of beneficiary, procedure — remainder distribution. — 1. A beneficiary who is a person with disabilities as defined in Section 1614(a)(3) of the Social Security Act, 42 U.S.C. 1382c(a)(3), or the parent, grandparent, or legal guardian of a beneficiary, or a court, as settlor, may contribute assets of the beneficiary in trust to the board as trustee, for the benefit of the beneficiary as part of a pooled trust described by 42 U.S.C. Section 1396p(d)(4)(C). Upon such contribution, the settlor's completion and execution of trust documents provided by the trustee, and the trustee's review, approval and execution of the trust documents, a trust account for the beneficiary shall thereby be created. A trust account to which the assets of a beneficiary are contributed shall be referred to as a "first party trust account" and shall be held and administered in trust for the benefit of the beneficiary as provided in this section.

2. The settlor may designate a cotrustee, and a successor or successors to the cotrustee, to act together with the trustee as trustees of the first party trust account; provided that the beneficiary may not act as a cotrustee or successor cotrustee; and provided further that court approval of the beneficiary, cotrustee or successor trustee shall be required in connection with any first party trust account created pursuant to section 473.657 or section 475.093.

3. If the board determines, in its good faith judgment, that a cotrustee has breached his or her fiduciary duties, either as a result of an act of commission or omission, then the board may seek removal of such cotrustee and the appointment of a successor cotrustee upon application to a court of competent jurisdiction.

4. At the death of the beneficiary, the board of trustees shall provide notice that the trust account has terminated to each state of which the board of trustees has knowledge that such state has provided medical assistance on behalf of the beneficiary under a state plan for medical assistance under Title 42 of the United States Code. After distribution of twenty-five percent of the principal balance of the trust account to the charitable trust, the board of trustees shall pay over and distribute to such states all amounts remaining in the trust account up to an amount equal to the total medical assistance paid by such states on behalf of the beneficiary under the state plan for medical assistance under Title 42 of the United States Code. In the event that the beneficiary has received medical assistance from more than one state with claims on the proceeds for reimbursement of medical assistance payments under Title 42 of the United States Code and there are insufficient assets to pay the entire balance due to each state then the proceeds shall be distributed to each state on a pro rata basis based upon each state's proportionate share of the total medical assistance paid by all states.

5. To the extent any amounts remain in the trust account after distribution to the charitable trust and the state or states for state reimbursement claims, the remainder shall be distributed to such person, entities, or organizations designated as remainder beneficiaries by the settlor in the trust documents. If any individual remainder beneficiary named by the settlor is not then living, then in the absence of contrary instruction in the trust documents completed by the settlor, such remainder beneficiary's distribution shall be made to such remainder beneficiary's heirs at law, as determined by the laws of the state of the beneficiary's residence at the time of the beneficiary's death.

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(L. 2011 S.B. 70)