Special Needs Trusts: Developing an Investment Strategy
Transcription
Special Needs Trusts: Developing an Investment Strategy
Special Needs Trusts: Developing an Investment Strategy By Brian Walsh, CFP®, CLU® Summary A Special Needs Trust enables families to provide funding for a loved one’s ongoing necessities without jeopardizing his or her eligibility for government benefits. This function makes a Special Needs Trust the cornerstone of most financial plans for families with children with special needs. Many resources address the intricacies of Special Needs Trusts while relatively few address the importance of developing a suitable investment strategy once the trust is funded. The purpose of this whitepaper is to discuss the important factors to consider when developing an investment strategy for Special Needs Trusts. Types of Special Needs Trusts There are two general categories of Special Needs Trusts: First-Party Special Needs Trusts and Third-Party Special Needs Trusts. A First-Party SNT is created using the beneficiary’s own assets such as personal assets, personal injury settlements or outright inheritances. A Third-Party SNT is created using the assets of others such as lifetime gifts or inheritances paid directly into the trust. The special needs trust should provide the trustee with complete discretion of payments from the trust to provide “supplemental and extra care” over and above that which the government provides. There should also be spendthrift provisions to protect the trust against creditors or government agencies trying to obtain funds to pay for debts of the person or family. The Role of the Trustee The extensive and complex role of the trustee can be segmented into three distinct functions with respect to the assets held within the Special Needs Trust: distribution, administration and investment. The foundation of the distribution function is maintaining a relationship with the beneficiary. After receiving a request for distribution from the beneficiary, the trustee determines its appropriateness by interpreting applicable rules as outlined in the trust document. The administration function of the trustee requires much more technical expertise. This function begins with the trustee taking custody of trust assets, which can vary from investments to tangible assets such as a home. Throughout the duration of the Special Needs Trust, the trustee performs ongoing accounting in order to prepare all applicable filings with third parties for government benefits and taxes. The final function of the trustee related to the investment of trust assets includes the selection of appropriate investments, monitoring investments and ensuring that trust assets are managed in a prudent manner. A written Investment Policy Statement can have a significant impact on keeping the investment function in compliance with prudent investing practices and help mitigate liability. The IPS identifies the appropriate asset allocation, benchmarks, and performance -2- measurement procedures. The guidelines will also provide clear understanding between the trustee, investment consultant and investment managers regarding investment objectives, goals and guidelines. Investment managers can be accessed through pooled investment vehicles such as mutual funds or separately managed accounts. Investment managers invest in securities according to their stated investment philosophy and objectives. For example, a fixed income manager will invest in various fixed income securities. Pooled investment vehicles provide professional management, diversification, liquidity and economies of scale. For this reason, pooled investment vehicles have become the primary method for investing trust assets. Investment consultants take an independent and unbiased approach in assisting the trustee with the investment trust’s assets. Investment consultants help develop the Investment Policy Statement, tailor an asset allocation specifically suited to the beneficiary’s needs and perform ongoing due diligence in relation to the investment managers. Since top-performing investment managers typically specialize in certain asset classes, no one manager is likely to offer superior performance in each asset class. The objectivity of an investment consultant allows him or her to provide the trustee with insight and expertise in the prudent investing of trust assets. The Uniform Prudent Investors Act The rules governing the investment of trust assets are established under the Uniform Prudent Investor Act, which clearly describes the powers and duties of the trustee. The Uniform Prudent Investor Act instituted five fundamental modifications to the investment of trust assets. Developments over the past generation related to investment theory prompted the necessity to adapt the standards of prudent investing. Although not expressly mentioned in the UPIA, the underlying principles of modern portfolio theory are found throughout the act. Based on the fundamental relationship between the UPIA and modern portfolio theory, in order to understand the standards of prudent investing established through the UPIA, one must also understand the basics of modern portfolio theory. The first modification established through the UPIA allows the trustee to evaluate all decisions as part of the entire portfolio rather than as individual investments. This view enables decisions to be made in relation to their impact on the portfolio rather than in isolation, which is a basic tenet of modern portfolio theory. The second modification established through the UPIA is that the tradeoff between risk and return is the central consideration of the trustee. There is a fundamental relationship between risk and return. Risk is segmented into three components: market risk, -3- industry risk, and company-specific risk. Market risk is common to all investments, and it takes into consideration the impact of events that affect the entire economy. Industry risk is specific to firms in a particular industry, such as the risk faced from a shortage in supplies. Company-specific risk reflects the factors that specifically impact a particular company, such as the risk faced from a defect in one of their products. The third modification established through the UPIA and another one of the core tenets of modern portfolio theory is diversification. While diversification does not guarantee against loss or ensure a profit, it helps to reduce risk because all investments do not move in a uniform manner. Diversification is achieved by spreading the portfolio into assets that have varying degrees of correlation. Correlation is essentially how investments behave in relation to one another under the same economic condition. When two investments move in the same direction, they are highly correlated. Conversely, when two investments move in a different direction, they are inversely correlated. Studies have shown that market risk accounts for 30 percent, industry risk accounts for 50 percent, and firm risk accounts for 20 percent of the overall risk of an investment.1 Since market risk is common to all investments, it cannot be eliminated through diversification. Industry and company-specific risk, which account for roughly 70 percent of total risk, may be reduced significantly through a well-diversified portfolio. Therefore underdiversification of the trust assets expose the portfolio to risk without the corresponding higher expected return. Since understanding the tradeoff between risk and return is the central consideration of the trustee, it may be imprudent for the portfolio to take on uncompensated risk. Achieving proper diversification led to the fourth modification established through the UPIA – allowing the trustee to assess the appropriateness of individual investments within a goal of achieving the risk/return objectives of the trust. While it may seem counterintuitive to invest in asset classes with high levels of risk, such as international or alternative investments, diversification is achieved by investing in many different kinds of asset classes. Therefore, a portfolio that includes risky assets with investments with historically lower risk can have the effect of lowering the overall risk profile of the portfolio. The historic superior long-term return of equities may justify the increased volatility in short-term price movements as long as the total risk of the portfolio is suitable. Since international markets comprise a significant proportion of the overall global economy, it may be impossible to achieve proper diversification without international investments. Studies have shown that, in spite of the unique risks associated with international investments, a welldiversified portfolio containing them is about a third less risky than a portfolio only containing domestic -4- investments. That is because international investments tend to have a lower correlation to domestic investments, therefore providing greater diversification and potential reduction of risk.2 The same justification can be used for including alternative investments when developing a well-diversified portfolio. Alternative investments take a non-traditional approach that allows them the potential to enhance returns while reducing risk. Alternative investments such as private equity, commodities, currencies, real estate, high-yield bonds and derivatives may have a low-to-inverse correlation with traditional investments such as equities and fixed income. While detractors have noted that these investments may be illiquid, untransparent and have high fees, alternative investments also have the ability to be more flexible and invest in a broader array of assets, which may enhance overall portfolio returns. These factors have led to the use of alternative investments in prudent investing to potentially achieve diversification and enhance returns. The fifth and final modification established through the UPIA is that delegation of duties related to the role of the trustee is now permitted subject to safeguards. As the investment function of the trustee grows more complex, there is a greater need for specialized expertise to prudently invest the assets of the trust. Delegation allows trustees to leverage the unique expertise of investment professionals while they focus on serving the needs of the beneficiary. In order to fulfill their fiduciary responsibility, a trustee should establish safeguards specifically related to delegation in the Investment Policy Statement. Considerations in Developing an Investment Strategy for a Special Needs Trust When developing the investment strategy of the Special Needs Trust, it is imperative to understand the unique circumstances specifically related to this type of trust. These circumstances can be separated into four broad categories: time horizon, spending policy, risk tolerance and tax status. An investor’s time horizon takes into consideration the length of time before distributions begin and how long those distributions will last. A thorough understanding of the time horizon is extremely important when developing a suitable investment strategy. Based on a comprehensive financial plan, including the beneficiary’s life care plan, distributions can begin immediately or defer until a future date. The duration of the distributions are impacted by the anticipated life expectancy of the beneficiary, and with advancing innovations in medical technology, many individuals with special needs have a life expectancy that is comparable to the general population. Once the time horizon is established, the focus can be shifted to understanding the spending policy of the Special Needs Trust. Typically a beneficiary will receive annual distributions to fund the gap between the costs of living and the -5- income received from employment and/or government benefits. The trustee has full discretion regarding distributions, and it is important for the trustee to consider the impact of distributions on government benefit eligibility. In addition to annual distributions, many beneficiaries will need to make major purchases such as replacing vehicles, renovations in equipment or improvements in their living facility to accommodate their disability. Properly planning for significant future expenditures will ensure that money is available when it is needed most. The final consideration in the spending policy is factoring in any remainder beneficiary interest as part of a comprehensive estate plan. Remainder beneficiaries may impact the investment strategy but should never take precedence over the primary beneficiary. The time horizon and spending policy of the Special Needs Trust are important factors, but careful analysis of the trade-off between risk and return in the portfolio is the central consideration of the trustee under the Uniform Prudent Investor Act. An investor’s risk tolerance is often described as their ability to handle volatility in their portfolio. Historically there is a fundamental relationship between the long-term return of an investment and the degree of short-term price volatility. Past investment experience and the availability of assets other than the Special Needs Trust will also contribute to the suitable amount of risk of the portfolio. As the investment strategy develops, it is vital to understand the income tax treatment of the Special Needs Trust. The difference between individual income tax rates and trust tax rates is dramatic. The tax rate of the trust’s income may impact the choice of underlying investments held by the trust. Depending on the type of Special Needs Trust and how it was established, the taxation may be based on the grantor, beneficiary or trust. The details regarding the type of tax treatment for Special Needs Trusts and how that is determined is beyond the scope of this whitepaper, but once that is understood, it must be factored into the investment strategy. Time horizon, spending policy, risk tolerance and tax status all play a unique role as they are integrated into the investment strategy. The time horizon determines the capital growth necessary while balancing volatility constraints from the risk tolerance. The spending policy governs the importance of income generation as the tax efficiency of that income is determined by the tax status of the Special Needs Trust. Integrating these factors when forming the appropriate asset allocation is the single most important decision related to investing and accounts for nearly 94 percent of historical returns.2 After all factors are considered, a suitable investment strategy will enable the Special Needs Trust to remain the cornerstone of the beneficiary’s financial plan throughout their lifetime. About the Author Brian Walsh, CFP®, CLU® is a Financial Advisor. He began his career in the financial services industry in 2006, providing general financial planning services specializing in risk management solutions. After becoming a CERTIFIED FINANCIAL PLANNER™ practitioner, Brian transitioned to Baird in 2011. Brian earned his Bachelor of Science degree in finance from Valparaiso University. In his free time, Brian serves the community as the corporate development director for Autism Speaks Wisconsin, treasurer for the Wings Academy for Students Who Learn Differently, board member for the Young Nonprofit Professional Network and associate board member for Bethesda Lutheran Communities. Brealey, Richard. An Introduction to Risk and Return from Common Stocks. 2nd. x. Cambridge, Mass.: MIT Press, 1983. 188. Print 1 Brinson, Gary P., L. Randolph Hood and Gilbert L. Beebower. “Determinants of Portfolio Performance” (1986). Financial Analysts Journal, vol. 42, no. 4 (July/August):39–44. 2 Langbein, John H., “The Uniform Prudent Investor Act and the Future of Trust Investing” (1996). Faculty Scholarship Series. Paper 486. http://digitalcommons.law.yale.edu/fss_papers/486. Uniform Prudent Investor Act, drafted by the National Conference of Commissioners of Uniform State Laws. Certified Financial Planner Board of Standards Inc. owns the certification marks CFP®, CERTIFIED FINANCIAL PLANNER™ and federally registered awards to individuals who successfully complete CFP Board’s initial and ongoing certification requirement. ©2012 Robert W. Baird & Co. Incorporated. rwbaird.com. 800-RW-BAIRD. First use: 10/2012. MC-36745. -6- in the U.S., which it
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