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Evaluating Pooled Special Needs Trusts: 2024 ASNP Conference
Renée C. Lovelace of The Lovelace Law Firm, P.C. has been a certified elder law attorney since 1997 as well as a caregiver for a family member with special needs for more than 30 years. At April’s 2024 Academy of Special Needs Planners Conference, she spoke to attendees about the tipping point facing pooled special needs trusts today – and specifically about how attorneys might approach comparing and evaluating these types of trusts.
“One of the objectives of this presentation,” Lovelace told session participants, “is to really promote understanding. We really do need to protect pooled trusts.”
“There are remarkable pooled trusts out there, offering irreplaceable benefits,” she said. “But there have been recent catastrophes that are truly heartbreaking that could bring an end to many pooled trusts and could drastically change the statues we’re dealing with.”
One of these recent scandals involved a class action lawsuit against a special needs trust fund company in Florida. The nonprofit, the Center for Special Needs Trust Administration, is accused of misappropriating tens of millions of dollars from clients with disabilities; more than $100 million in special needs trust assets have gone missing from their accounts.
Why We Need Pooled Trusts
First authorized by the Omnibus Budget Reconciliation Act of 1993, pooled trusts are not only essential, Lovelace said, but also “absolutely the best concept that has ever come along in the disability world for planning.”
They can “literally save lives, save money, enhance quality of life, serve as a launching pad, a safety net, and a springboard,” she added. “We know that people who have extensive care and medical needs generally need special needs trusts. Special needs trusts need trustees. But there isn’t always an experienced corporate trustee or individual trustee available. Sometimes pooled trusts are the only answers. Sometimes they’re not the only answer, but clearly the best answer because of what they can do.”
A major issue right now, she pointed out, is that the pooled trust industry needs to put better regulations in place. “It’s been 30 years,” she said. “Why don’t we have more standards?”
Ultimately, what she wants to see is an audit process developed for pooled trusts as well as consensus on what constitutes best practices in the industry.
Being able to compare pooled trusts is a necessary piece of this puzzle. She acknowledges that not everyone can be an expert in this area. In fact, even those who are experts “can’t predict the future and … can’t independently verify every claim or document.” However, there are steps attorneys can take to gather information when evaluating different pooled trusts.
Bananas vs. Pooled Trusts?
It’s unlikely the “perfect” pooled trust exists, Lovelace said. But in her presentation, she gave a glimpse into what kinds of characteristics might indicate a particularly well-run pooled trust. These include the following:
The pooled trust clearly explains the services it will provide – and provides those services.
The trust does not look to fees or remainder retention as a fundraising system for the organization.
Its officers and directors understand the complexities of running a business and are committed to long-term sustainability.
Contact information is readily available.
The trust focuses on expenses line by line to ensure all dollars spent are allocated, necessary, and reasonable.
The trust has policies and procedures in place that address all facets of operations.
It issues conflicts of interest disclosures and easy-to-understand financial accountings at least annually.
It includes a strong charitable component.
The trust offers tremendous service to its clients.
“We want advisors that constantly monitor laws, regulations, rules, and policies in the best interest of their beneficiaries,” Lovelace said.
She also offered an unexpected analogy regarding the evaluation of pooled trusts: “When you go to the store to buy a banana, do you care what they’re paying the board of directors? Do you care what the president makes? Do you care about their policies and procedures?” she asked the audience.
“We don’t care,” she went on. “We’re just looking at the price of the banana and whether or not it’s a good banana.
“But with pooled trusts, there’s going to have to be a level of transparency that’s far beyond what other organizations or other types of business need to provide. A lot of their internal operations information is going to need to be there on their websites in order for us outsiders … to be able to point these things and say [to clients], ‘This is why you should be comfortable with this pooled trust.’”
Pros and Cons of Pooled Trusts
Lovelace cautions that many clients may resist the idea of pooled trusts until they have a better understanding of their potential risks and upsides.
Whereas pooled trusts can offer public benefits expertise, supportive programs, an improved quality of life, and much more, they also require the client to give up control to some extent. This can mean a level of uncertainty regarding how funds will be administered and the risk of fraud or, simply, disappointment.
And with more pooled trust options on the market than ever, evaluating them all is becoming much more challenging. They can be vastly different, and an attorney needs to be knowledgeable about everything from special needs trusts to employment laws to federal and state tax law to be able to identify the best options.
“We’re trying to evaluate from the outside, not seeing everything that’s going on on the inside,” she said. “The analysis isn’t perfect, but don’t give up. Some people who need trusts will have no other options, and well-run pooled trusts offer life-changing benefits.”
As a starting point for comparing programs, Lovelace pointed session attendees to CPT Institute’s numerically based evaluation tool for pooled trusts.
She also referenced pooled trust websites that currently provide comprehensive information, naming the Arc of Texas Master Pooled Trust and its toolkit as the gold standard.
Ultimately, Lovelace believes there is a need to establish an “audit that will actually go all the way down to the component parts and certify that things exist if you can’t get to everything.
“You can’t foil all burglars,” she added, “but at least lock the doors.”
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Evaluating Pooled Special Needs Trusts: 2024 ASNP Conference
Renée C. Lovelace of The Lovelace Law Firm, P.C. has been a certified elder law attorney since 1997 as well as a caregiver for a family member with special needs for more than 30 years. At April’s 2024 Academy of Special Needs Planners Conference, she spoke to attendees about the tipping point facing pooled special needs trusts today – and specifically about how attorneys might approach comparing and evaluating these types of trusts.
“One of the objectives of this presentation,” Lovelace told session participants, “is to really promote understanding. We really do need to protect pooled trusts.”
“There are remarkable pooled trusts out there, offering irreplaceable benefits,” she said. “But there have been recent catastrophes that are truly heartbreaking that could bring an end to many pooled trusts and could drastically change the statues we’re dealing with.”
One of these recent scandals involved a class action lawsuit against a special needs trust fund company in Florida. The nonprofit, the Center for Special Needs Trust Administration, is accused of misappropriating tens of millions of dollars from clients with disabilities; more than $100 million in special needs trust assets have gone missing from their accounts.
Why We Need Pooled Trusts
First authorized by the Omnibus Budget Reconciliation Act of 1993, pooled trusts are not only essential, Lovelace said, but also “absolutely the best concept that has ever come along in the disability world for planning.”
They can “literally save lives, save money, enhance quality of life, serve as a launching pad, a safety net, and a springboard,” she added. “We know that people who have extensive care and medical needs generally need special needs trusts. Special needs trusts need trustees. But there isn’t always an experienced corporate trustee or individual trustee available. Sometimes pooled trusts are the only answers. Sometimes they’re not the only answer, but clearly the best answer because of what they can do.”
A major issue right now, she pointed out, is that the pooled trust industry needs to put better regulations in place. “It’s been 30 years,” she said. “Why don’t we have more standards?”
Ultimately, what she wants to see is an audit process developed for pooled trusts as well as consensus on what constitutes best practices in the industry.
Being able to compare pooled trusts is a necessary piece of this puzzle. She acknowledges that not everyone can be an expert in this area. In fact, even those who are experts “can’t predict the future and … can’t independently verify every claim or document.” However, there are steps attorneys can take to gather information when evaluating different pooled trusts.
Bananas vs. Pooled Trusts?
It’s unlikely the “perfect” pooled trust exists, Lovelace said. But in her presentation, she gave a glimpse into what kinds of characteristics might indicate a particularly well-run pooled trust. These include the following:
The pooled trust clearly explains the services it will provide – and provides those services.
The trust does not look to fees or remainder retention as a fundraising system for the organization.
Its officers and directors understand the complexities of running a business and are committed to long-term sustainability.
Contact information is readily available.
The trust focuses on expenses line by line to ensure all dollars spent are allocated, necessary, and reasonable.
The trust has policies and procedures in place that address all facets of operations.
It issues conflicts of interest disclosures and easy-to-understand financial accountings at least annually.
It includes a strong charitable component.
The trust offers tremendous service to its clients.
“We want advisors that constantly monitor laws, regulations, rules, and policies in the best interest of their beneficiaries,” Lovelace said.
She also offered an unexpected analogy regarding the evaluation of pooled trusts: “When you go to the store to buy a banana, do you care what they’re paying the board of directors? Do you care what the president makes? Do you care about their policies and procedures?” she asked the audience.
“We don’t care,” she went on. “We’re just looking at the price of the banana and whether or not it’s a good banana.
“But with pooled trusts, there’s going to have to be a level of transparency that’s far beyond what other organizations or other types of business need to provide. A lot of their internal operations information is going to need to be there on their websites in order for us outsiders … to be able to point these things and say [to clients], ‘This is why you should be comfortable with this pooled trust.’”
Pros and Cons of Pooled Trusts
Lovelace cautions that many clients may resist the idea of pooled trusts until they have a better understanding of their potential risks and upsides.
Whereas pooled trusts can offer public benefits expertise, supportive programs, an improved quality of life, and much more, they also require the client to give up control to some extent. This can mean a level of uncertainty regarding how funds will be administered and the risk of fraud or, simply, disappointment.
And with more pooled trust options on the market than ever, evaluating them all is becoming much more challenging. They can be vastly different, and an attorney needs to be knowledgeable about everything from special needs trusts to employment laws to federal and state tax law to be able to identify the best options.
“We’re trying to evaluate from the outside, not seeing everything that’s going on on the inside,” she said. “The analysis isn’t perfect, but don’t give up. Some people who need trusts will have no other options, and well-run pooled trusts offer life-changing benefits.”
As a starting point for comparing programs, Lovelace pointed session attendees to CPT Institute’s numerically based evaluation tool for pooled trusts.
She also referenced pooled trust websites that currently provide comprehensive information, naming the Arc of Texas Master Pooled Trust and its toolkit as the gold standard.
Ultimately, Lovelace believes there is a need to establish an “audit that will actually go all the way down to the component parts and certify that things exist if you can’t get to everything.
“You can’t foil all burglars,” she added, “but at least lock the doors.”
Evaluating Pooled Special Needs Trusts: 2024 ASNP Conference
<p><img alt="Renee Lovelace presents on pooled trusts at the 2024 Academy of Special Needs Planners Conference." src="https://cdn.elderlawanswers.com/common/uploads/photos/20526-Renee Lovelace presents at ASNP National Conference 2024 IMG_7418.JPG" style="float:right; height:200px; margin-left:10px; margin-right:10px; width:277px" /><span style="font-size:14.0pt">Renée C. Lovelace of The Lovelace Law Firm, P.C. has been a certified elder law attorney since 1997 as well as a caregiver for a family member with special needs for more than 30 years. At April’s <a href="https://wealthcounsel.swoogo.com/asnp2024" target="_self">2024 Academy of Special Needs Planners Conference</a>, she spoke to attendees about the tipping point facing pooled special needs trusts today – and specifically about how attorneys might approach comparing and evaluating these types of trusts.</span></p>
<p><span style="font-size:14.0pt">“One of the objectives of this presentation,” Lovelace told session participants, “is to really promote understanding. We really do need to protect pooled trusts.”</span></p>
<p><span style="font-size:14.0pt">“There are remarkable pooled trusts out there, offering irreplaceable benefits,” she said. “But there have been recent catastrophes that are truly heartbreaking that could bring an end to many pooled trusts and could drastically change the statues we’re dealing with.”</span></p>
<p><span style="font-size:14.0pt">One of these recent scandals involved a <a href="https://www.classaction.org/media/chamberlin-et-al-v-boston-finance-group-llc-et-al.pdf" target="_self">class action lawsuit</a> against a special needs trust fund company in Florida. The nonprofit, the Center for Special Needs Trust Administration, is accused of misappropriating tens of millions of dollars from clients with disabilities; more than <a href="https://attorney.elderlawanswers.com/corporate-trustee-accused-of-misappropriating-100m-in-snts-20332" target="_self">$100 million in special needs trust assets</a> have gone missing from their accounts.</span></p>
<h2><strong><span style="font-size:14.0pt">Why We Need Pooled Trusts</span></strong></h2>
<p><span style="font-size:14.0pt">First authorized by the Omnibus Budget Reconciliation Act of 1993, pooled trusts are not only essential, Lovelace said, but also “absolutely the best concept that has ever come along in the disability world for planning.”</span></p>
<p><span style="font-size:14.0pt">They can “literally save lives, save money, enhance quality of life, serve as a launching pad, a safety net, and a springboard,” she added. “We know that people who have extensive care and medical needs generally need special needs trusts. Special needs trusts need trustees. But there isn’t always an experienced corporate trustee or individual trustee available. Sometimes pooled trusts are the only answers. Sometimes they’re not the only answer, but clearly the best answer because of what they can do.”</span></p>
<p><span style="font-size:14.0pt">A major issue right now, she pointed out, is that the pooled trust industry needs to put better regulations in place. “It’s been 30 years,” she said. “Why don’t we have more standards?” </span></p>
<p><span style="font-size:14.0pt">Ultimately, what she wants to see is an audit process developed for pooled trusts as well as consensus on what constitutes best practices in the industry.</span></p>
<p><span style="font-size:14.0pt">Being able to compare pooled trusts is a necessary piece of this puzzle. She acknowledges that not everyone can be an expert in this area. In fact, even those who are experts “can’t predict the future and … can’t independently verify every claim or document.” However, there are steps attorneys can take to gather information when evaluating different pooled trusts.</span></p>
<h2><strong><span style="font-size:14.0pt">Bananas vs. Pooled Trusts?</span></strong></h2>
<p><span style="font-size:14.0pt">It’s unlikely the “perfect” pooled trust exists, Lovelace said. But in her presentation, she gave a glimpse into what kinds of characteristics might indicate a particularly well-run pooled trust. These include the following:</span></p>
<ul>
<li><span style="font-size:14.0pt">The pooled trust clearly explains the services it will provide – and provides those services.</span></li>
<li><span style="font-size:14.0pt">The trust does not look to fees or remainder retention as a fundraising system for the organization.</span></li>
<li><span style="font-size:14.0pt">Its officers and directors understand the complexities of running a business and are committed to long-term sustainability.</span></li>
<li><span style="font-size:14.0pt">Contact information is readily available.</span></li>
<li><span style="font-size:14.0pt">The trust focuses on expenses line by line to ensure all dollars spent are allocated, necessary, and reasonable.</span></li>
<li><span style="font-size:14.0pt">The trust has policies and procedures in place that address all facets of operations.</span></li>
<li><span style="font-size:14.0pt">It issues conflicts of interest disclosures and easy-to-understand financial accountings at least annually.</span></li>
<li><span style="font-size:14.0pt">It includes a strong charitable component.</span></li>
<li><span style="font-size:14.0pt">The trust offers tremendous service to its clients.</span></li>
</ul>
<p><span style="font-size:14.0pt">“We want advisors that constantly monitor laws, regulations, rules, and policies in the best interest of their beneficiaries,” Lovelace said.</span></p>
<p><span style="font-size:14.0pt">She also offered an unexpected analogy regarding the evaluation of pooled trusts: “When you go to the store to buy a banana, do you care what they’re paying the board of directors? Do you care what the president makes? Do you care about their policies and procedures?” she asked the audience. </span></p>
<p><span style="font-size:14.0pt">“We don’t care,” she went on. “We’re just looking at the price of the banana and whether or not it’s a good banana. </span></p>
<p><span style="font-size:14.0pt">“But with pooled trusts, there’s going to have to be a level of transparency that’s far beyond what other organizations or other types of business need to provide. A lot of their internal operations information is going to need to be there on their websites in order for us outsiders … to be able to point these things and say [to clients], ‘This is why you should be comfortable with this pooled trust.’”</span></p>
<h2><strong><span style="font-size:14.0pt">Pros and Cons of Pooled Trusts</span></strong></h2>
<p><span style="font-size:14.0pt">Lovelace cautions that many clients may resist the idea of pooled trusts until they have a better understanding of their potential risks and upsides.</span></p>
<p><span style="font-size:14.0pt">Whereas pooled trusts can offer public benefits expertise, supportive programs, an improved quality of life, and much more, they also require the client to give up control to some extent. This can mean a level of uncertainty regarding how funds will be administered and the risk of fraud or, simply, disappointment. </span></p>
<p><span style="font-size:14.0pt">And with more pooled trust options on the market than ever, evaluating them all is becoming much more challenging. They can be vastly different, and an attorney needs to be knowledgeable about everything from special needs trusts to employment laws to federal and state tax law to be able to identify the best options.</span></p>
<p><span style="font-size:14.0pt">“We’re trying to evaluate from the outside, not seeing everything that’s going on on the inside,” she said. “The analysis isn’t perfect, but don’t give up. Some people who need trusts will have no other options, and well-run pooled trusts offer life-changing benefits.”</span></p>
<p><span style="font-size:14.0pt">As a starting point for comparing programs, Lovelace pointed session attendees to CPT Institute’s numerically based <a href="https://www.cptinstitute.org/wp-content/uploads/2022/12/CPT-PSNT-Evaluation-Tool-QR-8.19.21.pdf" target="_self">evaluation tool for pooled trusts</a>. </span></p>
<h2><strong><span style="font-size:14.0pt">Recommendations</span></strong></h2>
<p><span style="font-size:14.0pt">For the special needs planning attorneys in attendance, Lovelace recommended numerous resources – from the book <a href="https://www.amazon.com/Third-Party-Self-Created-Trusts-Clifton-Kruse/dp/1590310373" target="_self">Third-Party and Self-Created Trusts</a> by Clifton Kruse to Stetson University’s <a href="https://www.stetson.edu/law/academics/elder/home/media/Best_Practices_Guidelines_Final_42022.pdf" target="_self">Life Passages PSNT Best Practices Guidelines</a>.</span></p>
<p><span style="font-size:14.0pt">She also referenced pooled trust websites that currently provide comprehensive information, naming the <a href="https://www.thearcoftexas.org/mpt/" target="_self">Arc of Texas Master Pooled Trust</a> and its <a href="https://www.thearcoftexas.org/wp-content/uploads/MPT-TOOLKIT-2022-UPDATE.pdf" target="_self">toolkit</a> as the gold standard.</span></p>
<p><span style="font-size:14.0pt"><span style="color:black">Ultimately, Lovelace believes there is a need to establish an “audit that will actually go all the way down to the component parts and certify that things exist if you can’t get to everything.</span></span></p>
<p><span style="font-size:14.0pt"><span style="color:black">“You can’t foil all burglars,” she added, “but at least lock the doors.”</span></span></p>
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Renée C. Lovelace of The Lovelace Law Firm, P.C. has been a certified elder law attorney since 1997 as well as a caregiver for a family member with special needs for more than 30 years. At April’s 2024 Academy of Special Needs Planners Conference, she spoke to attendees about the tipping point facing pooled special needs trusts today – and specifically about how attorneys might approach comparing and evaluating these types of trusts.
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