Question Presented
               You asked us to review the Violet P~ Disability Trust (VPDT) to determine whether
                  the representative payee (Community Options) can continue to transfer Social Security
                  disability benefits into the trust.
               
               Short Answer
               We have determined that the representative payee cannot properly transfer Social Security
                  disability benefits into the VPDT because (1) the trust prohibits the use of trust
                  funds for the primary beneficiary’s current needs, such as food and shelter, and (2)
                  pursuant to the trust’s early termination provisions, the trust could cease to be
                  for the sole benefit of the Social Security beneficiary during her lifetime.
               
               DISCUSSION
               The POMS explains that:
               A payee must use benefits to provide for the beneficiary’s current needs such as food,
                  clothing, housing, medical care and personal comfort items, or for reasonably foreseeable
                  needs. If not needed for these purposes or, in title II only, for the support of the
                  beneficiary’s legally dependent spouse, child and/or parent, the payee must conserve
                  or invest benefits on behalf of the beneficiary.
               
               POMS GN 00602.001. Pursuant to the POMS, a representative payee may transfer Title II or Title XVI
                  benefits (or both) to establish a trust or to fund an existing trust if:
               
               We have determined that the representative payee cannot properly transfer Social Security
                  disability benefits into the VPDT because (1) the trust prohibits the use of trust
                  funds for the primary beneficiary’s current needs, such as food and shelter, and (2)
                  pursuant to the trust’s early termination provisions, the trust could cease to be
                  for the sole benefit of the Social Security beneficiary during her lifetime.
               
               * Establishing the trust is in the beneficiary’s best interest;
               * The trust is established exclusively for the use and benefit of the beneficiary
                  to meet the beneficiary’s current and reasonably foreseeable needs; and
               
               * The Social Security beneficiary is the sole beneficiary of the trust during his
                  or her lifetime.
               
               POMS GN 00602.075(C)(1). The trust must provide that funds in the account will be used only for purposes
                  that would be permitted by a representative payee. POMS GN 00602.075(D)(3). A trust will meet this requirement if it provides for “expenditures for food,
                  clothing, housing, medical care, recreation, education, etc.” Id.   A trust will also meet this requirement if it directs that trust assets be used only
                  to meet the beneficiary’s current maintenance needs that are not covered by public
                  assistance, since this does not prevent the use of trust assets to meet the beneficiary’s
                  current maintenance needs.  Id.  However, a trust does not meet this requirement where it prohibits the use of trust funds to meet the beneficiary’s current needs for food, clothing,
                  housing and medical care and provides that trust funds are to be used to enhance the
                  beneficiary’s quality of life in the broadest sense. Id. Thus, a representative payee could not properly transfer benefits to a trust with
                  such provisions. Once the benefits are transferred into the trust, “the benefits are
                  considered ‘expended’ or ‘used’ to meet the beneficiary’s current and reasonably foreseeable
                  needs, just as if the payee used the funds to purchase goods and services to benefit
                  the beneficiary.” POMS GN 00602.075(C)(2).
               
               Violet P~ Disability Trust
               The VPDT appears to conflict with the POMS in two ways. First, it prohibits the trustee
                  from using any trust funds for the basic care and support of the trust beneficiary.
                  Specifically, the VPDT provides that distributions of income and principal can be
                  made only to provide for the “supplemental needs” of the primary beneficiary, and
                  defines “supplemental needs” as “services or goods that are not considered food or shelter.”[1] See Violet P~ Disability Trust, Section 3.01 (emphasis added). Therefore, because the
                  VPDT specifically prohibits the use of trust funds for the beneficiary’s current needs
                  such as food and shelter, [2] the representative payee cannot properly transfer Social Security disability benefits
                  into the trust. See  POMS GN 00602.075(D)(3).
               
               Second, the VPDT could terminate early and cease to be for the sole benefit of the
                  Social Security beneficiary during her lifetime. The VPDT provides that the trust
                  shall terminate (1) upon the death of the beneficiary; (2) when the trust is no longer
                  required for Medicaid eligibility in Colorado; (3) upon order of the court; or (4)
                  upon depletion of the trust assets, whichever occurs first. See Violet P~ Disability Trust, Section 3.05. Upon termination, after paying administrative
                  expenses and reimbursing the state of Colorado for medical assistance, any remaining
                  trust assets will be paid to individuals named in the beneficiary’s will, or if no
                  will is executed, to the parents of the beneficiary (or the parents’ then living issue).
                  See Violet P~ Disability Trust, Section 3.06. Therefore, the trust’s termination provisions
                  create a possibility that the trust could terminate early and the assets to be paid
                  to a third party. Since other individuals could benefit from the trust during the
                  beneficiary’s lifetime, the trust could cease to be for the sole benefit of the Social
                  Security beneficiary during her lifetime. Thus, the representative payee cannot properly
                  transfer Social Security benefits into the trust. See POMS GN 00602.075(C)(1); POMS GN 00602.075(D)(3).
               
               CONCLUSION
               In sum, the representative payee cannot properly transfer Social Security disability
                  benefits to the VPDT.
               
               John J. L~
 Regional Chief Counsel Region VIII
 By: _______________
               
               Laura H~
 Assistant Regional Counsel