North Carolina § 36C-4-401 - 2. Creation of trust by a court.

§ 36C-4-401. 2. Creation of trust by a court.

A court may create or establish a trust by judgment or decree, including a trust pursuant to section 1396p(d)(4) of Title 42 of the United States Code, upon petition of an interested party in accordance with the provisions of this Chapter or in any other matter properly before the court. History (2009-267, s. 3; 2010-97, s. 5(a).) SUPPLEMENTAL NORTH CAROLINA COMMENT (2009) This section specifies a non-exclusive method of establishing a trust pursuant to section 1396(p)(d)(4) of Title 42 of the United States Code upon petition by any interested party in accordance with the provisions of the North Carolina Uniform Trust Code. Section 1396(p)(d)(4) provides for two types of trusts, commonly referred to as "special needs trusts," to which a disabled individual's assets may be transferred to preserve the individual's eligibility to receive means-tested governmental benefits, such as supplemental security income or Medicaid. The most frequently used of these is the (d)(4)(A) trust which is established by a parent, grandparent, guardian or court for the benefit of a disabled individual under age 65 and provides that upon the death of the individual the remaining property will go to the State up to the amount of total benefits paid. The section clarifies that the court has authority to create or establish any trust, including a section 1396(p)(d)(4) trust, by means of judgment, order or decree in any matter properly before the court. SUPPLEMENTAL NORTH CAROLINA COMMENT (2010) Effective July 20, 2010, this section is amended to clarify the court's authority to create or establish a trust applies to any trust and is not restricted to a trust created or established pursuant to section 1396p(d)(4) of Title 42 of the United States Code. Editor's Note. - Session Laws 2010-96, s. 22, provides: "The Revisor of Statutes may cause to be printed all explanatory comments of the drafters of S.L. 2009-222, 2009-267, and 2009-318 as the Revisor deems appropriate." Effect of Amendments. - Session Laws 2010-97, s. 5(a), effective July 20, 2010, rewrote the section catchline, which formerly read: "Trust pursuant to 46 U.S.C § 1396p(d)(4)"; and rewrote the section.