New Mexico § 46-12-113 - Trust for beneficiary with disability

§ 46-12-113. Trust for beneficiary with disability

A. As used in this section: (1) “ beneficiary with a disability ” means a beneficiary of a first trust who the special-needs fiduciary believes may

qualify for governmental benefits based on disability, whether or not the beneficiary

currently receives those benefits or is an individual who has been adjudicated incapacitated; (2) “ governmental benefits ” means financial aid or services from a state, federal or other type of public agency; (3) “ special-needs fiduciary ” means, with respect to a trust that has a beneficiary with a disability: (a) a trustee or other fiduciary, other than a settlor, that has discretion to distribute

part or all of the principal of a first trust to one or more current beneficiaries; (b) if no trustee or fiduciary has discretion under Subparagraph (a) of this paragraph,

a trustee or other fiduciary, other than a settlor, that has discretion to distribute

part or all of the income of the first trust to one or more current beneficiaries;

or (c) if no trustee or fiduciary has discretion under Subparagraphs (a) and (b) of this

paragraph, a trustee or other fiduciary, other than a settlor, that is required to

distribute part or all of the income or principal of the first trust to one or more

current beneficiaries; and (4) “ special-needs trust ” means a trust that the trustee believes would not be considered a resource for purposes

of determining whether a beneficiary with a disability is eligible for governmental

benefits. B. A special-needs fiduciary may exercise the decanting power provided by Section

1-111 of the Uniform Trust Decanting Act over the principal of a first trust as if

the fiduciary had authority to distribute principal to a beneficiary with a disability

subject to expanded distributive discretion if: (1) a second trust is a special-needs trust that benefits the beneficiary with a disability;

and (2) the special-needs fiduciary determines that exercise of the decanting power will

further the purposes of the first trust. C. In an exercise of the decanting power provided by this section, the following rules

apply: (1) notwithstanding Paragraph (2) of Subsection C of Section 1-111 of the Uniform

Trust Decanting Act, the interest in the second trust of a beneficiary with a disability

may: (a) be a pooled trust as defined by medicaid law for the benefit of the beneficiary

with a disability under 42 U.S.C. Section 1396p(d)(4)(C) , as amended; or (b) contain payback provisions complying with reimbursement requirements of medicaid

law under 42 U.S.C. Section 1396p(d)(4)(A) , as amended; (2) Paragraph (3) of Subsection C of Section 1-111 of the Uniform Trust Decanting

Act does not apply to the interests of the beneficiary with a disability; and (3) except as affected by any change to the interests of the beneficiary with a disability,

the second trust, or if there are two or more second trusts, the second trusts in

the aggregate, shall grant each other beneficiary of the first trust beneficial interests

in the second trusts that are substantially similar to the beneficiary's beneficial

interests in the first trust.