§ 868. Terms of Management Trust
868. Terms of Management Trust
(a) Except as provided by Subsection (d) of this section, a trust created under Section 867 of this code must provide that:
(1) the ward, incapacitated person, or person who has only a physical disability is the sole beneficiary of the trust;
(2) the trustee may disburse an amount of the trust's principal or income as the trustee determines is necessary to expend for the health, education, support, or maintenance of the person for whom the trust is created;
(3) the income of the trust that the trustee does not disburse under Subdivision (2) of this subsection must be added to the principal of the trust;
(4) if the trustee is a corporate fiduciary, the trustee serves without giving a bond; and
(5) the trustee, subject to the court's approval, is entitled to receive reasonable compensation for services that the trustee provided to the person for whom the trust is created as the person's trustee that is:
(A) to be paid from the trust's income, principal, or both; and
(B) determined, paid, reduced, and eliminated in the same manner as compensation of a guardian under Section 665 of this code.
(b) The trust may provide that a trustee make a distribution, payment, use, or application of trust funds for the health, education, support, or maintenance of the person for whom the trust is created or of another person whom the person for whom the trust is created is legally obligated to support, as necessary and without the intervention of a guardian or other representative of the ward or of a representative of the incapacitated person or person who has only a physical disability, to:
(1) the ward's guardian;
(2) a person who has physical custody of the person for whom the trust is created or another person whom the person for whom the trust is created is legally obligated to support; or
(3) a person providing a good or service to the person for whom the trust is created or another person whom the person for whom the trust is created is legally obligated to support.
(c) A provision in a trust created under Section 867 that relieves a trustee from a duty, responsibility, or liability imposed by this subpart or Subtitle B, Title 9, Property Code, is enforceable only if:
(1) the provision is limited to specific facts and circumstances unique to the property of that trust and is not applicable generally to the trust; and
(2) the court creating or modifying the trust makes a specific finding that there is clear and convincing evidence that the inclusion of the provision is in the best interests of the beneficiary of the trust.
(d) When creating or modifying a trust, the court may omit or modify terms required by Subsection (a)(1) or (2) of this section only if the court determines that the omission or modification:
(1) is necessary and appropriate for the person for whom the trust is created to be eligible to receive public benefits or assistance under a state or federal program that is not otherwise available to the person; and
(2) is in the best interests of the person for whom the trust is created.
(e) The court may include additional provisions in a trust created or modified under this section if the court determines an addition does not conflict with Subsection (a) and, if appropriate, Subsection (d) of this section.
(f) If the trustee determines that it is in the best interest of the ward or incapacitated person, the trustee may invest funds of the trust in the Texas tomorrow fund established by Subchapter F, Chapter 54, Education Code. [FN1]
[FN1] Education Code § 54.6001 et seq.