OPINION OF THE COURT
In this рroceeding, the conservator for Bessie Hilda Garbow seeks authorization to establish an irrevocable inter vivas trust for the lifetime benefit of thе conservatee containing further provisions for the continuation of the trust upon her death to provide for the supplemental needs of the conservatee’s mentally retarded adult son.
By order of this court dated November 28, 1988, the petitioner was appointed conservator for Bessie Hilda Garbow, a widow, almost 90 years of age, who by reason of her mental and physical condition was determined to be unable to manage hеr financial affairs following the death of her husband on May 11, 1988. Since the time of her husband’s death, the conservatee has been a resident of Palm Gardеns Nursing Home, located in Brooklyn, New York. The present value of the conservatorship estate is approximately $700,000 consisting of bank accounts and certificates of deposit, the income and part of the principal of which has been utilized to pay for the conservatee’s сare at the nursing home as well as her other living expenses.
The conservatee’s only child, Marvin Garbow, is a 64-year-
Subsequent to the death of the conservаtee’s husband, an investigation and inquiries as to the conservatee’s personal affairs failed to uncover a will executed by the conservatee. A review of the court records indicates that the conservatee does not possess the requisite capacity to execute a will. Consequently, if the conservatee should die, Marvin Garbow, as her sole issue, is a presumptive distributee entitled to receive her entire estate. (EPTL 4-1.1.) Should Marvin or a guardian appointed on his behalf receive this inheritance, his eligibility for public assistance benefits may be jeopardized and his inheritаnce may also be subject to claims for reimbursement for past assistance received, at least upon his death. (See, Social Services Law §§ 104, 369.)
In an effort to preservе the conservatee’s assets for the benefit of Marvin upon the conservatee’s death while still ensuring the care of the conservatee during hеr lifetime, the conservator seeks authority to establish an irrevocable inter vivas trust. Pursuant to its terms, as amended, the entire conservatorship estаte would be transferred to a trustee, the conservator herein, who would apply the income and so much of the principal as is necessary for the benefit of the conservatee during her lifetime. Upon her death, if her son Marvin Garbow should survive, the trust is to continue as a "supplemental neеds trust” where by its terms the trustee shall expend only the income to provide Marvin with goods and services not provided through his government entitlements. Upon Marvin’s dеath or in the event Marvin should predecease the conservatee, the trust is to terminate and the trust property is to be distributed equally amongst the сonservatee’s siblings and a daughter of a predeceased brother per stirpes.
At the outset, it is observed that under the existing laws of this State, no statute exists expressly empowering the court to authorize the creation of trusts on behalf of a person under a disability. However, effective April 1, 1993, the courts will have the statutory authority to create trusts and sanction other types of transfers on behalf of these persons. (L 1992, ch 698, § 3.) Until such date, the judiciаl doctrine of "substituted judgment” provides the governing authority for assessing the propriety of a proposed transfer for the purpose of providing for the needs of one other than the ward/transferor. (Matter
Both of the standards hаve been met herein. The record contains evidence of the conservatee’s prior use of trust arrangements as well as other declаrations indicative of or consistent with an intention to preserve her son’s government entitlements. From an objective perspective, the prоpriety of creating the proposed trust, which ensures the conservatee’s well-being during her lifetime while enabling her son to enjoy an enhanced quаlity of life upon her death without risking his public assistance, cannot be questioned. To that end, supplemental needs type trusts created by a third person who has no obligation to support the beneficiary thereof, will not disqualify the beneficiary from public assistance where, as here, the settlor’s intеntion that the distributions are to supplement and not supplant the beneficiary’s government entitlements is clearly and unequivocally expressed. (See, e.g., Matter of Escher,
All of the interested persons as well as the Department of Social Services have either filed written consents or waived any right to object to the relief requested. Based upon the foregoing, the court determines that the creation of the proposed trust, as amended, is in the best interests of the conservatee and its terms and purpose are in conformity with and effectuate the cоnservatee’s past conduct and declarations. The trust serves as a prudent method of securing the conservatee’s well-being and that of her child while affording both persons the full and/or allowable benefit from the conservatorship fund.
In light of the above, the conservator may, upon the filing of an accounting, move to terminate the conservatorship. (Mental Hygiene Law § 77.35.)