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NS-Keeping Unfit Parent From Trust
Jan L. Warner & Jan Collins

Question: My son and his live-in girlfriend had a daughter out of wedlock, who, now age 16, spends most of the time with me. I generally get her to school, buy her clothes, etc.
Her mother, now age 45, has never supported her, leaving that up to my son who, until his death last year, gave me money every week. Her mother has not worked to any extent over the past few years, has moved more than 14 times (mostly evicted), and has had a live-in boyfriend for the past four years who has a bad criminal record for theft, etc.

My granddaughter relies upon me for everything -- clothes, school supplies, transportation, etc. Her mother has neither an automobile nor driver's license. But since my son was killed in a motor vehicle accident, her mother has become her Representative Payee with Social Security and receives more than a thousand dollars each month for my granddaughter. Since my son died, even though my granddaughter is with me, I have received only $175.00 from the mother in 18 months.

Additionally, my granddaughter is the beneficiary of one half of my son's estate, which is negligible except for a rather large wrongful-death claim settlement. My granddaughter, who is very bright, wants me to handle the money as her trustee because she knows her mother will take it from her. She wants me to use this money and pay for her college and then give her any remaining money, half at age 30, and the rest at age 40. She wants to make sure that if she dies before the money is finally distributed, her half-brother gets the money in a trust. She loves her mother, but can't trust her.

We live in a relatively small town, and no lawyers can help me with this problem. Can you give me any ideas?

Answer: First, as to the Social Security. According to SSA Publication No. 05-10076, January 2009, ICN 468025 (go to www.ssa.gov/pubs/10076.html#how), please note the following quote:
"First, you must make sure the beneficiary's day-to-day needs for food and shelter are met. Then, the money can be used for any of the beneficiary's medical and dental care that is not covered by health insurance, and for personal needs, such as clothing and recreation. If there is money left after you pay for the beneficiary's needs, it must be saved, preferably in an interest-bearing account or U.S. Savings Bonds."

This means that if the Representative Payee is using funds for other than your granddaughter, she is breaching her fiduciary duties and, in addition to being replaced, she can be sanctioned.

Second, as to the trust, in order to do what your granddaughter wants, because she is a minor, a probate or surrogate court in your county of residence should be approached for the purpose of creating the trust your granddaughter wants. Also because she is a minor, a guardian ad litem must be appointed for her. Proceedings must be brought to put you in the position of being her fiduciary. Her mother must be served and notified of the hearing.

However, since a minor (under age 18) can't make a will, the court can't make a will for the minor - just like it can't do so for an incapacitated adult.

Likewise, the court can't make the functional equivalent of a will for a minor -- like by putting the minor's assets into a court-created trust that disposes of those assets at the minor's death in a manner that differs from the intestacy statutes - just like an incapacitated adult.

At age 18, your granddaughter can make a will that uses the Testamentary Power of Appointment given to her by the trust agreement. By doing so, she will be able to direct the final distribution of the trust assets if she dies before everything is distributed to her.

This is not easy work, and you need to find a lawyer who can carry the mail.



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