HomeMy WebLinkAbout08-30-13 IN RE: ESTATE(3F : IN THE C(3URT t�F COI��I�N PL�;�S � �^a-�
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PETITION FOR AUTHQRIZATION TU CREATE TRUSTS
AND NOW, this 29�h day of August , 2013 come the Petitioners, JOHN
AUGUSTINE and STEVEN AUGUSTINE, Co-Administrators of the Estate of KENNETH
AUGITSTINE, by their attarney,A. MAI�:I�WINTER,ES(IUI�tE, and file this Petitian For
Autharization to Create Trusts and in support thereof aver that:
1. Petitioners are the Co-Administratars of the Estate af their late brother,
I��ENNETH AITGUSTINE.
2. KENNETH AUGUSTINE died intestate on lYiay 31, 2Q12. A true and
correct copy of his death certificate is attached hereto as Exhibit A.
3. Letters of Administration were granted ta the Petitioners on C�ctober�,2{�12.
A true and correct copy of the Shart Certif�cat�is attached hereto a�s Exhibit
B.
' 4. During the lifetime of KENNETH AUGUSTINE, he became mentally
incapacitated, and required the appointment af a plenary guardian.
5. Qn Ap►ril 19, 2004, fallowing a hearing, the Honorable George Haffer, P.J. af
: the Cumberland County Caurt of Cammon Pleas issued an Order appointing
JOHN �ITGi.TSTINE and STE�EN AUGUSTINE as plenary guardians to
manage the financial affairs of I�:ENNETH AU�USTINE. A true and
correct copy of the Final Order is attached hereto as Exhibit C.
b. I�ENNETH AUGUSTINE was �urvived by a daughter, AMANDA
I�ATI�ERINE AU�USTINE, naw 24 years old,and JEFCEMY AUGUSTINE,
now 22 years old.
7. At �he time of his death of May 31, 2012, KENNETH AUGUSTINE owned a
�75,000.(}0 life insurance policy#I�ATJS�f�1441,issued by Universal Guaranty :
Life Insurance of Springfield,Il�inois.
8. The beneficiary of the life insuranc�e policy is JOHN AUGUSTINE, In Trust
for AMANDA�:AT�IERINE AUGITSTINE and JEF�EMY�UGUSTINE.
9. Friar to his death, KENNETH AUGUSTINE asked his brather Jt��IN
AUGUSTINE ta► create Trusts and manage the insurance proceeds for the
benefit of each of his chiidren.
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10. AMANDA KATHERINE AUGUSTINE is autistic and requires a Special
: Needs Trust.
11. Copies of the proposed Trusts are attached hereto as Exhibits D and E.
12. Universal Guaranty Life Insurance requires an Order af Court prior to
making distributian of the Life Insurance proceeds. A copy of the proposed
Order is attached hereto as Exhibit F.
WHEREFORE, Petitioners respectfully request that this Honorable Caurt enter an
Order granting them permission to create and manage Trusts on behalf of the two (2)
children of their�ate brother.
Resp�ectfully submitted,
�
s
A. Mark Winter,Esq. .
314 W.Chocolate Avenue
Hershey,FA 17033
727-533-4868
ID#23178
Attvrney for Petitianers
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EXHIBIT "B"
CQMMONWEALTH QF PENNSYLVANIA SHORT CERTIFIGATE
COUNTY QF CUMBERLAND
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I, GLENDA FARNEFi STR�SBA U�N
Regz s ter �c�r the Proba te af Wz Z I s ar�.d Gra.r�.ting
I,et�e.�s of Admi.z�is�Gration i.rl and for
C'UMBERLAND Cc�un ty, do hereb�r certi fy tha t on
the 5th da,y af G►ctaber, Two Thousand and Twelve
Let�ers of ADMINISTRATION
in common form were granted by the Register of
said �`ounty, on the
esta�e caf KENNETHAU�UST1Nf , .Zate of CARGfSL.EBDROU�H
(Firsi,Midd/e,Lastl
in said county, deceased, to JC7HNAUGUSTINE an�
(Firsr,Middte,Lasr1
STE'VE/V ACI�'USTI/VE
(Frist,Middle,Last)
and tha� same ha,� no� since been revo.ked.
IN TEST2MONY WHEREaF, I have hereunto set m� hand and affixed �he
seal of sai d c�ffi ee a t CARLI`�LE, P,ENNSY.LVANIA, thi� 9��i da�' c�f aC�°�'e�'
�'wo 'Thousand and Twe.�ve,
Fi.Ze No. 2t��2- Q10�fi
PA Fi1e Na. 21- 12- 1096
Date of Death 5/3�/20�2
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NC7T VALID WITHOUT C7RIG.INAL ,�IGIVATURE AN'D I.MPRESSED SEAL
EXHI$IT "�"
IN RE: KEI�f��TH AIT�GU�TIl'�E : TN TI�+COURT OF COMMON PLEAS
: +DF CU11�BE�iLAI�TD�OZT��T'I`�,
: PEl`�NS�LVANIA
: ORPHA.NS' �OURT DIVISION
a,n incapacitated persa� :NO. 2f�Q4-00�39
On the Petition of S1'EVE AUGUSTZNE and JOHN AUGUSTINE
FINAL C3R�IER+D�"COURT APPOIl'�TTII�TG PLENAR�+�U.A►R.DIA1'� :
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A1`TD NC�►W t�us da of ��` C�... 2U04 a he;arm. in this case hav�.n been
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held on April 19, 20U4 at �-�i � �.� l� . �..m., and it appearing to the Cc�urt that KEI`�N�TH
ALTGIJ�TTI�JE was serv�c3.with a Cita�ia� and Notice t�f this heaaring�n March 2�, 2C1{}4, and the
Court finds that the physical or mental condition of I�EI���3ETH AUGtTS7:'IlU7F would be hanmed by
his pres�ence at hearing,and fiirther finds from the testimany:
1. That �:EI���TH AUGITSTI�`wTE s�ers �`rom brain dama.ge due to anoxic
encephalopathy,a candition which to�a,lly impairs his capacity to re+�eive and evalua.te infonmation
eff`ectively and to make and camm�nicate decisions concerrung his management offmancial affairs
ar ta meet essential requirements fvr his physical h�alth and safet�.
2. That there are insufficient supports available to assist KE1��2�TETH,A.UGUSTIl�TE in
such decisians and that there are no other less restrictive alternative mechanism for decision-ma1�.i.ng,
�i�'lRt��+��'Y ��C3�v1 FiE+��}F�D
��7e�timtx�y wherof, l here�un#�
set r�y harrd anci th�sea!
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3. That based on the ina.bility of K1�NNETH AUGUSTIl�TE to receive and evaluate
information and to make or communicate decisions,a plenary Guardian of the Person and a plenary
Guardian of the Estate are required on a permanent basis.
NOW,THEREFORE,based on the clear and convincing evidence supporting the foregoing
findings it is OItDERED,ADJUDG�D and DECREED that KENNETH AUGUSTINE be and is
hereby adjudged an incapacitated person,and STEVE AUGUSTINE and JOHN AUGUSTINE are
appointed Plenary Permanent Co-Guardians of the Person and Estate. As Plenary Permanent Co-
Guardians of the person, STEVE AUGUSTINE and JOHN AUGUSTINE have the authorifiy to
access all KENNETH AUGUSTIl�TE'S medical records, includi.ng but not limited to psychiatric
records, and to request andlor tenni_n.ate an out-of-hospital do-not-resuscitate order on behalf of
KENNETH AUGUSTIl�TE,in accordance with Pennsylvania law. Further,as Co-Guardians of the
person,STEVE AUGUSTINE and JOHN AUGUSTINE shall have the power and authority to serve
as personal representatives for a11 purposes of the Health Insurance Portability and Accountability
Act of 1996, (Pub.L.104-191), 45 CFR Sections 160 through 164 ("HIPAA"). The Co-Guardians
sha11 be considered the personal representatives for KENNETH AUGUSTIl�TE'S heath care
disclosures under the 2003 federal HIPAA regulations and shall have full authority to review
KENNETH AUGUS'TIl�TE'S medical records and to execute releases of confidential i.nformation
from medical providers and insurers or other third part�y payors.
As co-guardians of the esta.te,STEVE AUGUSTIl�TE and JOHN AUGUST�TE shall have the
authority to make distributions from principal for the payment of care expenses,all medical needs,
attomey's fees,and child support pursuant to court order. An Inventory must be filed within ninety
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�90)days. A report b�the Co-Gua.rdians shall be fiied withi.n I�months and annually thereaf�er.
Bond in�h.e amount af �' �C� G��,�,�°� sha11 be posted by the Co-Guardians.
�:�fiTI��E'I"H AUGUSTI��E, an incapacitated persc�n, has the right to appeal �ais Order vf
Court by fi�ing exceptions within ten {10� days of this date or to petition this Caurt fi�r a review
hearing to modify or terminate the�uardianship herein established.
If k:EI���:�TH AIJGUSTZttiTE,cavas nat pres��t at this hearing on appoin�nent of a guardian
�hen petitioner shatl serve upon and read to KE���TETH AUGUS'TI�TE the Statement of Rights, a
�apy of which is attached to this C)xder as E�ibit"A",and file proof of such service with this Court
wit��.in ten�ays.
BY THE CO►URT:
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� ' ' EXHIBIT "D"
THE JEREMY AUGUSTINE
TRUST AGREEMENT
This Agreement,made this day of ,2013,by and
between JOHN AUGUSTINE and STEVEN AUGUSTINE,Administrators of the
Estate of Kenneth Augustine, deceased, Late of Cumberland County, Pennsylvania,
Settlors,and JOHN AUGUSTINE,of Bainbridge,Pennsylvania, and STEVEN
AUGUSTINE,of Mechanicsburg,Pennsylvania,Trustees,
WITNESSETH:
The Settlors,desiring to create an irrevocable trust for the benefit of the surviving
son of Kenneth Augustine,JEREMY AUGUSTINE,to be used for his support,
maintenance,and higher education, as defined.and on the terms and conditions
hereinafter set forth,hereby transfer to the Trustees the property described in Schedule A
annexed hereto,which,together with the investment and reinvestments thereof and all
additions thereto,is hereinafter referred to as the`Trust Res,"in Trust,to invest and
reinvest the same and to dispose of the net income and principal for the uses and purposes
specified herein.
FIRST: The Trustees sha11 hold,manage, control, invest, and reinvest the Trust
Res and sha11 pay to or apply for the benefit of the said JEREMY AUGUSTINE the
whole or any part of the Trust principal, net annual income, or accumulated income for
his support,maintenance,and higher education and which higher education, as used in
this Agreement, shall mean the cost of tuition,room and board, and books, and fees
incurred in the pursuit of an associate,baccalaureate, or advanced degree, at any
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accredited institution of the said JEREMY AUGUSTINE'S choice. The balance of the
corpus of the Trust Fund,plus any undistributed income, sha11 be paid over to the said
JEREMY AUGUSTINE,one half thereof upon his attaining the age of twenty-five(25)
years, and the balance thereof upon his attaining the age of thirty(30)years,upon which
payment said trust shall terminate.
SECOND: In the event that the said JEREMY AUGUSTINE sha.11 die before
the full distribution of the Trust Fund shall have been accomplished,the principal of the
Trust Res,including any additions which may have been made to the Trust Res,
together with a11 accumulated and accrued income, sha11 be transferred, assigned, and
conveyed.to his issue,but in default thereof to the then e�sting Special Needs Trust
created for the benefit of A►�VIANDA KATHERINE AUGUSTINE,which Trust was
created by the Settlors by Trust Agreement bearing even date herewith,to be
administered in accordance with that Agreement. In the event that the said A
KATHERINE AUGUSTINE sha11 pred.ecease her brother,JEREMY AUGUSTINE,
and the said JEREMY AUGUSTINE shall die without issue,then the remainder of said
Trust Res shall be distributed to a charitable organization, the purpose of which is to
benefit people with autism,to be chosen by the Trustees.
THIRD: The Trustees herein named, or their successor or successors, sha11 have
full and unrestricted discretionary power and authority to hold,manage, control, improve,
grant, convey,deliver, assign,transfer, option,pledge,borrow upon the credit of or
otherwise deal with or dispose of,without application to or order of any Court, the
property constituting the Trust Res, it being the Settlors' express intention to confer upon
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said Trustees every power of management which might be conferred upon them by an
express enumeration of separate powers, including,but without limiting the generality of
the above powers, discretionary authority to:
(a) except when a division is necessary for the purposes of distribution,
hold separate funds in one consolidated fund in which the separate funds shall have
undivided interest;
(b) invest and reinvest all or part of the Trust Res in corporate bonds,
debentures, stocks(common or preferred),real estate,mortgage bonds or notes or
participations therein, and other investments,including convnon trust funds and
investment trusts,in their discretion,without limiting such investrnent to the classes or
securities or property which are now or may hereafter be prescribed by law or those in
which trust funds sha11 be invested;
(c) vote any corporate stock by proxy, and to execute general or restricted
proxies to one or more nomi.nees; and to exercise any options or rights issued in
connection with bonds or stocks;
(d) determine how all receipts and disbursements shall be credited,
charged,or apportioned as between income and principal; provided,however(1)that
upon the death of said beneficiary, all undistributed income to which some beneficiary
would have been entitled had such beneficiar�lived until the next distribution date, shall
be treated as if it had accrued immediately following the death of such beneficiary;
(2)that all dividends which are payable only in shares of the corporation declaring same
shall be apportioned between principal and income under applicable statutory provisions,
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but absent such provision shall be deemed principal, except that amounts paid on
account of cash dividends declared before liquidation or as arrears of preferred or
guaranteed cash dividends including extraordinary dividends and dividends payable in .
stock or corporations other than the declaring corporation shall be deemed income;
(3) that a11 rights to subscribe to the shares or other obligations of a corporation and the
proceeds of the sales of such rights, shall be deemed principal; and(4)the Trustees shall
not be required to amortize or otherwise provide for the gradual extinguishment of the
difference between face and market value of securities,but may amortize such differences
from income if they should choose.
(e) maintain the sole responsibility for the custody and safekeeping of the Trust
Res and for the collection of interest and principal and for keeping accounts of the Trust;
(� apportion between principal and income, as the Trustees may in their
discretion determine, all charges and expenses properly payable from the trust estate;
(g) compromise, settle, arbitrate, or release any claim in favor of or against the
trust estate;
(h) The Trustees shall be entitled to reimbursement for a11 their necessary costs
and disbursements,including charges for accounting and legal services, and for their
services shall receive such reasonable compensation as is commensurate with the services
actually performed.
FOURTH: The Trustees hereinbefore named by joining in the execution of this
Agreement signify their acceptance of the Trust hereby created and do agree and consent
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to faithfully perform the duties of Trustees hereunder.
FIFTH: The Trustees sha11 have the authority to accept additions to this Trust
from any source at any time and any such property so received shall become part of the
� Trust Res and sha11 be held, administered., and disposed of in accordance with the
provisions of this Agreement.
SIXTH: If any contingent or remainder beneficiary shall die as a result of a
common disaster or under circumstances giving rise to any questions as to whether such
beneficiary or JEREMY AUGUSTINE died first, it shall be presumed for the purposes
of this Agreement that such person or persons predeceased the said JEREMY
AUGUSTINE, and that this Trust sha11 be administered accordingly.
SEVENTH: In the event either Trustee administering this Trust shall for any
reason cease to act as a Trustee,it is directed that the surviving Trustee shall continue to
act as a Trustee with a11 of the rights,powers and duties of a Trustee as if he had been .
solely appointed at the creation of this Trust. If both of the Trustees named herein shall
for any reason cease to act as Trustees,then a successor Trustee shall be appointed by the
Court of Common Pleas of Cumberland County, Pennsylvania. Any successor Trustee
appointed hereunder shall have all of the powers,rights, obligations, and immunities of a
Trustee under this Agreement as if such successor Trustee had been originally appointed
as a Trustee.
EIGHTH: The Trustees sha11 be responsible only for due diligence in the
administration and disbursement of the Trust Res and shall not be responsible for any loss .
or subject to any liability except by reason of their own gross negligence or willful deceit
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or default. Every election, determination, or other exercise by the Trustees of any
discretion granted to them, expressly or by implication in this Agreement or by law,made
in good faith, sha11 fully protect such Trustees and sha11 be binding upon a11 persons
having an interest in the Trust Res.
NINTH: The unanimous consent of the Trustees is required for any action to be
taken in the exercise of any of the rights and powers of a Trustee under this Trust. Any
action taken without th�unanimous consent of the Trustees shall be void and shall not be
binding on the Trust or upon any party in interest.
TENTH: No beneficiary of this Trust shall have the right to alienate, encumber,
assign,pledge or otherwise transfer any interest that a beneficiary may have to the Trust
Res,whether of income or principal. Any such transfer or attempted transfer by any
beneficiary shall be void and of no effect,and no distribution or payment shall be made to
any such transferee or assignee. _
ELEVENTH: For so long as the said JEREMY AUGUSTINE is alive,the
Trustees and any successor Trustee shall provide the said JEREMY AUGUSTINE with
an annual accounting of the funds in the Trust,to be given within thirty(30) days after the
annual armiversary of the date of this agreement for the year preceding and which
� accounting shall show the income or losses, distributions made, and the balance of the
funds remaining a.t the end of such year in the Trust Fund.
TWELFTH: Having been advised by�counsel and fu11y understanding the nature
and consequence of our act, the Settlors expressly declare this Agreement and the Trust
hereby created to be irrevocable and unamendable, except as provided herein.
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THIRTEENTH: As used in this agreement,the neuter gender shall include the
masculine or feminine where appropriate and the singular shall include the plural.
FOURTEENTH: T'his Trust shall take effect only upon the execution of this .
A eement by both the Settlors and the Trustees and when approved by the Court of
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Common Pleas of Cumberland County,Pennsylvania, and it shall be in a11 respects
governed by the laws of the Commonwealth of Pennsylvania.
FIFTEENTH: The Settlors direct that no Trustee or Successor Trustee be
required to give any bond as Trustee for any purpose or in any jurisdiction. .
SIXTEENTH: With respect to any assets delivered to the Trustees, all dividends
declared but not paid, or income accrued prior to the delivery of such assets to the
Trustees, shall be deemed income. The Trustees herewith acknowledge receipt of the
initial trust res and agree to faithfully discharge the duties herein conferred upon
them.
SEVENTEENTI3: 5hould any provision of this Agreement be or become
invalid or unenforceable,the remaining provisions of this Agreernent shall continue to be
fully effective.
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IN WITNESS WHEREOF, the Settlors and the Trustees have hereunto set their
hands and seals and have caused this instrurrient to be fully executed as of the date first
above stated.
JOHN AUGUSTINE
Settlor
STEVEN AUGUSTINE
Settlor
JOHN AUGUSTINE
Trustee
STEVEN AUGUSTINE
Trustee
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COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF CUMBERLAND )
�n this day of , 2013,before me personally
appeared John Augustine and Steven Augustine,known to be the persons described in
and who executed the foregoing instrument in their capacity as Settlors and Trustees, and
acknowledged that they executed the same as their free act and deed.
Notary Public
My commission expires:
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SCHEDULE A
The following Schedule is attached to and made a part of a certain agreement dated
,2013 between the undersigned JOHN AUGUSTINE and
STEVEN AUGUSTINE, as Settlors, and JOHN AUGUSTINE and STEVEN
AUGUSTINE, as Trustees, and lists those assets transferred to said Trust on
� , 2013.
CASH $
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EXHIBIT "E"
THE AMAI�DA KATNEFtINE AUGU�TI�VE
SPECIAL NEEDS TRUST
This Trust A�reement is made#his day of , 2013, by
John Augustine and Steven Augustine, Administrat�rs of the Estate af Kenne#h
Augustine, €ather of Amanda Kat�erine Augustine, hereinafter Settlars. This is an
irrevocable trust for the sale benefit of Amanda Katherine Auc�ustine {DC�B 7-14-88},
Settlars' niece, a disabled person as defined in 42 USC par. 1382c(a)(3) (hereinafter
referred to as"Bene�ciary"}, whose primary residence is 305�-B �inden Stree�,
- Bethlehem, PA 18017.
It is Settlors' intent, by this ins#rument, #o create an irrevo�able inter vivos trust
whereby the property placed in trust sha11 be managed for the benefit of Bene�ciary
during Bene€iciary's lifetime and distributed #o the remainder beneficiaries named herein
upon Beneficiary's death.
The !n'rtia!Trustees under this instrc�ment.shall �e Jc�hn Augus#ine and Steven
Augustine, or the survivor befinreen them.
SECTlON 1. NAME t�F TRUST
1.�. The trust created in ��tis instrumen� may be referred to as the
AMANDA KATHERINE AUGUSTINE SPECIAL NEEQS TRUST.
SEGT�ON Z. TRUST FUND[NG
2.1. Initial Trust Funding -This Trust shall be initially funded with#he
assets, if any, listed an Schedule"A"attached hereto.
2.2. Additia�s to Trust- �ther prape�ty, real or personal, may be
transferred to #he Trustees by anyane, with the consent af the Trustees. The Trustees,
in their sc�le discretion, may refuse to accept any property int�a the Trust Estate, All
property held by#he Trustees shall constitu#e the "Trus# Estate". e
SECTIt3N 3. ADMINISTRATIOw ,
3.1• All properky subject ta this instrument fram time to time is referre�d
to as the"Trust Estate" and snall be held, adrninistered, �nd dis#ributed according to this
instrument.
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SECTION 4. DISTRIBUTION OF INCOME AND PRINCIPAL
4.1. Distributions During the Life of Beneficiary- During the lifetime of
the Beneficiary, the Trustees may distribute from the principal or income, or both, of this
Trust, such amounts that, in the Trustees' sole and unfettered discretion, may from time
to time be deemed reasonable or advisable.
The Trustees' discretion in making a disbursement as provided for in this instrument is
final as to all interested parties, even if the Trustees elect to make no disbursement at
all. No court or any other persons should substitute its or their judgment for the
discretionary decision or decisions of the Trustees. Any income of the Trust not so
distributed shall be added annually to principal. The Trustees may provide income in-
kind from the Trust pursuant to its specific distribution provisions in order to provide for
the special needs of the Beneficiary by furnishing those items of need not provided by
government entitlements. As used herein, the term "special needs" included, but is not
limited to, disbursements for the following: medical, dental, and diagnostic work and
treatment for which there are not private or public funds otherwise available; medical
procedures that are desirable, in the discretion of the Trustees, even though the
procedures may not be necessary or life-saving; special nursing care and rehabilitative
services; differentials in cost befinreen housing and shelter for a shared or private room
in an institutional setting; expenditures for travel and transportation, companionship,
entertainment, and cultural and educational experiences; and retaining the services of a
Care Manager and the services of such providers as may be sefected by the Care
� Manager from a Primary Care Agency. This list is not meant to be exhaustive but,
rather, illustrative of the kind of special needs that this Trust is designed to meet.
Additional examples of special needs are as follows: appliances, attendant care, cable
television, case management and oversight of programs for the beneficiary, computer
hardware, software, programs, concerts, conferences, counseling, courses, accounting
services, legal services, court costs, dry cleaning or laundry services, electronic
equipment, evaluations, fitness equipment, prepaid funeral expense, furniture,
haircuts/salon services, hobbies/crafts, holiday cards, housecleaning, insurance, internet
service, pets, pet supplies, linens, massage therapy, non-food grocery items, personal
hygiene products, over-the-counter medications, physician specialist not covered by
insurance or Medicaid, postage, repair services, psychological services, stationery,
storage units, telephone service/cell phone service and equipment, tickets to
entertainment/sporting events, toiletries, transportation, and visits to family and friends.
4.2. Distribution Provisions - In making distributions from this Trust, the
Trustees are authorized to consider, in the Trustees' sole discretion, the reasonableness
or advisability of making distributions in satisfaction of the Beneficiary's special needs.
As used in this instrument, "special needs" refers to the requisites for maintaining the
Beneficiary's good health, safety, and welfare when, in the discretion of the Trustees,
such requisites are not being provided by any government agency, office, or
department; nonprofit organizations; or any other public or private source. Although the
Trustees are authorized to consider these other sources and, where appropriate and to
the extent possible, endeavor to maximize the collection of such benefits and to facilitate
distribution of such benefits for the benefit of the Beneficiary, the Trustees may also, in
the exercise of the Trustees' discretion, disregard these other sources when making
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distributions to or for the benefit of the Beneficiary. Distributions may be made from the
Trust Estate without securing prior court approval.
4.3. Intent Regarding Distributions - It is the intention of the Settlors to create
a supplemental fund for the benefit of the Beneficiary and not to displace or supplant
public assistance or other sources of support that may otherwise be available to the
Beneficiary.
It is important to the Settlors that the Beneficiary maintains a level of human
dignity and humane care. The Trustees should bear this in mind when making
distributions from the Trust, while simultaneously considering that the Trust is not to be
invaded by creditors, subjected to any liens or encumbrances, or administered in such a
way as �o cause public benefits not to be initiated or to be terminated.
To the extent reasonable or advisable, the Trustees may deplete the Trust
corpus prior to the Beneficiary's death, thereby giving preference to the interests of the
Beneficiary over that of the remainder beneficiaries. In considering the interests of the
remainder beneficiaries, the Trustees are required to refrain from distributing property of
the Trust to or on behalf of the Beneficiary that will then be retitled in the name of any
remainder beneficiary. The Trustees shall hold title to all property comprising the Trust
even when that property is distributed to the Beneficiary for her use. The Trustees may
liquidate property of the Trust at any time, and such property need not be held in the
name of the Beneficiary.
No part of the Trust shall be used to supplant or replace benefits due from any
insurance carrier under an�r insurance policy covering the Beneficiary. ,
Prior to the death of the Beneficiary, the Trustees shall give special
consideration to paying any outstanding expenses of administration related to the Trust,
including reasonable attorney's fees, and should further consider purchasing a
reasonable burial plan to pay expenses relating to the funeral and burial of the
Beneficiary, if such burial plan has not been established.
4.4. Public Assistance Programs -The Trustees may, in the exercise of the
Trustees' best judgment and fiduciary duty, seek support and maintenance for the
Beneficiary from all available public resources. The Trustees shall take into
consideration the applicable resource and income limitations of any public assistance
program for which the Beneficiary is eligible. The Trustees are hereby granted full and
complete discretion to initiate rendering the Beneficiary eligible for any such program of
. public benefit and is hereby granted full and complete discretion to initiate either
administrative or judicial proceedings, or both, for the purpose of determining eligibility.
All costs relating thereto, including reasonable attorneys' fees, shall be a proper charge
to the Trust. It is the intention of the Grantors that no part of the corpus of the Trust
created herein shall be used to supplant or replace public assistance benefits of any
county, state, federal, or other government agency that has a legal responsibility to
persons with disabilities that are the same or similar to those that the Beneficiary may
be experiencing. For purposes of determining the Beneficiary's public assistance
eligibility, no part of the principal or undistributed income of the Trust shall be
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considered availabie to the Beneficiary. The Beneficiary does not have the power to
assign, encumber, direct, distribute, or authorize distributions from this Trust.
In the event the Trustees are required to release principal or income of the Trust
to or on behalf of the Beneficiary to pay for benefits or services that such public
assistance is authorized to provide were it not for the existence of this Trust, or in the
event the Trustees are requested to petition the court or any other administrative agency
for the release of trust principal or income for this purpose, the Trustees are authorized
to deny such request and is authorized, in the Trustees' discretion, to take whatever
administrative or judicial steps may be necessary to continue the public assistance
program eligibility of the Beneficiary, including obtaining instructions from a court of
competent jurisdiction ruling that the Trust corpus is not available to the Beneficiary for
such eligibility purposes. Any expenses of the Trustees in this regard, including
reasonable attorneys'fees, shall be a proper charge to the Trust, No Trustees shall be
liable for any loss of Trust assets, except for any loss caused by the Trustees' bad faith,
wanton conduct, or negligence.
The Trustees are entitled to terminate this Trust at any time, at the Trustees'
sole discretion; in which event, distribution shall be made in accordance with Section
4.5. of this Section.
4.5. Distributions -
4.5.1. After Death of the Beneficiary- On the death of
Beneficiary, the remaining principal and accrued income, if any, shall be distributed in
the following order: costs af Beneficiary's funeral and burial; costs of estate
administration; the residue shall be paid to Beneficiary`s brother, JEREMY AUGUSTINE,
thereafter to his issue, but if no issue survive him, then to a charitable organization, the
purpose of which is to benefit people with autism, to be chosen by the Trustees.
4.5.2. After Termination by Trustees - Upon termination of this
trust by the Trustees, the remaining principal and accrued income, if any, shall be
distributed as follows: to Beneficiary's brother, JEREMY AUGUSTINE, thereafter to his
issue, but if no issue survive him, then to a charitable organization, the purpose of which
is to benefit people with autism, to be chosen by the Trustees.
4.6. Distributions to Minors -With regard to those beneficiaries
specified in Section 4.5., if any one of these beneficiaries is under the age of finrenty-one
(21)years or is, in the opinion of the Trustees, under any disability that renders such
beneficiary unable to administer distributions properly when the distribution is to be
made, the Trustees shall continue to hold such beneficiary's share as a custodian and
manage such share pursuant to the Uniform Transfer to Minors Act until he or she
reaches the age of finrenty-one (21)years or overcomes the disability, when the
Trustees shall distribute such beneficiary's share to her. On the death of such
beneficiary prior to complete distribution, the Trustees shall distribute the Trust,
including any accrued and undistributed income, to the estate of such beneficiary.
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SECTION 5. POWERS OF TRUSTEE
5:1. General Powers -The Trustees shall have all powers,
authorities, and discretions granted by common law or statue so as to confer the
broadest possibie powers available. In addition, the Trustees are expressly authorized
and empowered, in the Trustees' sole and absolute discretion, to exercise the power set
forth below.
5.1.1. Non-Income-Producing Property- The Trustees may
invest in non-income-producing assets and may invest in housing owned jointly or solely
by the Trust.
5.1.2. Investments -The Trustees may invest and reinvest in
such stocks, bonds, or other property, real or personal, including the purchase or sale of
private annuities, life estate, and remainder interests, options on securities, any
uninsured money market funds, as the Trustees may consider advisable or proper,
without application to or the approval of any court and without being restricted as to the
character of any investment of Trust funds.
5.1.3. Nominee Name -The Trustees may hold investments in
the name of a nominee.
5.1.4. Distribution in Cash or in Kind -The Trustees may make
distribution of the assets of the Trust in money or in kind, or partly in money and partly in
kind, and the judgment and any determination of the Trustees in connection therewith,
including values assigned to various assets and decisions to make non-pro rata
distributions in kind, shall be binding and conclusive on all persons interested therein.
5.1.5. Retain Property-The Trustees may retain any property
(whether or not income-producing)that may be transferred to the Trust until such time
as the Trustees may deem it desirable to dispose thereof. However, the Trustees may
not distribute income-producing property to the Beneficiary.
5.1.6. Borrow Money-The Trustees may borrow money, with
the payment of no interest or such interest as is deemed appropriate by the Trustees,
for any purpose connected with the protection, preservation, or improvement of the
Trust or the enhancement of the benefits to the beneficiaries hereof, and may create
one or more mortgages on, or pledges of, any part or all of the property held by the
Trustees, whenever the Trustees shall deem the same advisable.
5.1.7. Compromise Claims -The Trustees may pay,
compromise, or adjust any claims of the Trust against others or of others against the
Trust, as the Trustees shall deem advisable.
5.1.8. Execute Instruments �The Trustees may execute,
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acknowiedge, and deliver any and ali instruments in writing that the Trustees may deem
advisable to carry out any of the foregoing powers. .
5.1.9. Professional Care Manager- The Trustees are
encouraged to consider.retaining the services of a professional Care Manager to assist
in providing the required care for Beneficiary. The purpose of the Care Manager would
be to coordinate other agencies or professionals or home-health aides or personal-care
providers or homemakers or any other services that the Care Manager and the Trustees
feel are in the best interests of Beneficiary. The Trustees shall pay all costs in
connection with the Care Manager.
5.1.10. Residence -The Trustees may acquire, hold, and
maintain any residence.(whether held as real property, condominium, or cooperative
apartment)for investment or for the use and benefit of Beneficiary(which the Trustees
may title in the Beneficiary's name)of this trust, as the Trustees, in the exercise of sole
and absolute discretion, shall determine. If the Trustees, in the exercise of sole and
absolute discretion, shall determine that it would be in the best interests of the
Bene�ciary to maintain a residence for the use of the Beneficiary but that the residence
owned by the Trustees should not be used for such purpose, the Trustees shall be
authorized to sell said residence and to apply the net proceeds of sale to the purchase
of such other residence or residences or to make such other arrangements as the
Trustees, in the exercise of sole and absolute discretion, shall deem suitable for the
purpose. Any proceeds of sale not needed for reinvestment in a residence as provided
above are to be added to the principal of the trust and thereafter held, administered, and
disposed of as a part thereof. The Trustees shall use the proceeds to pay all carrying
charges of such residence, including but not limited to any taxes, assessments, and
maintenance thereon, and all expenses of the repair and operation thereof, including the
employment of domestic servants and other expenses incident to the maintenance of a
household for the benefit of the Beneficiary of the trust, to expend such amounts as the
Trustees, in the exercise of sole and absolute discretion, shall determine to be
necessary to maintain the current life style of the Beneficiary, including, but not limited
to, providing for the personal care and comfort of the Beneficiary in any manner
whatsoever.
5.1.11. Elections -The Trustees may make such elections
under the tax laws as the Trustees, in the exercise of sole and absolute discretion, may
determine to be appropriate, regardless of the effect thereof on any interests in any trust
created under this Trust, and may determine whether or not any adjustment of such
interests shall be made by reason of any such election.
5.1.12. Life Insurance -The Trustees may purchase life
insurance on the life of any individual in which any beneficiary hereunder may have an
insurable interest; may enter into any form of split-dollar arrangement with respect to
such insurance, including a split-dollar arrangement with another trust of which any
Trustee hereunder is acting as a Trustee, notwithstanding that such arrangement may
constitute an act of self-dealing; may pay any premiums on any such life-insurance
policy held hereunder from trust income and/or principal; may exercise with respect to
said insurance policies held hereunder, from time to time, all options, rights, elections,
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and privileges exercisable with respect to said policies, including, but not limited to, the
right to demand and collect from the company or companies issuing said policies all
such proceeds as shall be payable to the Trustees; may designate and change the
beneficiaries thereunder, may modify, exchange, surrender, or cancel any such policies
of insurance; may borrow on and pledge any such policy in connection with a loan; may
assign and distribute any and all of the rights thereunder to or for the benefit of any
beneficiary of the trust; may direct the disposition of dividends or surplus; may convert
said policies into different forms of insurance; and may elect methods of settlement with
respect thereto.
5.2. Limitations - Notwithstanding any of the powers conferred
on Trustees, no individual acting as Trustees hereunder shall exercise or join in the
exercise of discretionary powers over income, principal, or termination of any Trust: (1)
for his or her own benefit or(2)to discharge his or her legal obligation to support the
Beneficiary, if any.
5.3. Delegation - From time to time, any Trustee may delegate
to any other Trustee acting under this instrument the exercise of any powers,
discretionary or otherwise, and may revoke any such delegation. Such delegation and �
revocation shall be evidenced by a writing delivered to such Trustee. While such
delegation is in effect, any of the powers, discretionary or otherwise, so delegated may
be exercised and action may be taken with the same force and effect as if the
delegating Trustee had personally joined in the exercise of such power and the taking of
such action. Anyone dealing with the Trustee shall be absolutely protected in relying on
their written statements relative to the fact and extent of such delegation.
5.4. Release of Powers - Any Trustee may release, in whole
or in part, temporarily or irrevocably, any power, authority, or discretion conferred by this
Trust by a writing delivered to any Trustee(s)and to the Beneficiary then eligible to
receive income distributions from any Trust. Such renunciation or release shall not
affect the grant of power, authority, or discretion renounced or released to the Trustees
then acting.
SECTION 6. INALIENABIUTY
6.1. The Beneficiary shall not have any right to anticipate, sell,
assign, mortgage, pledge, or otherwise dispose of or encumber all or any part of the
Trust Estate; nor shall any part of the Trust Estate, including income, be liable for the
debts or obligations of the Beneficiary or Beneficiary's estate or be subject to
attachment, garnishment, execution, creditor's bill, or other legal or equitable process.
SECTION 7. SUCCESSOR TRUSTEE AND TRUST PROTECTORS; GENERAL
ADMINISTRATION
7.1. Successor Trustee - If John Augustine and Steven
Augustine should die, resign, or otherwise fail to act or qualify as Trustees, then a
successor Trustee shall be appointed by the Court of Common Pleas of Cumberland
County, Pennsylvania.
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� Successor Trustees hereunder shall have the rights, powers,
discretions, duties, responsibilities, and limitations granted to or imposed on the original
. Trustees. No fiduciary need examine the accounts, records, and acts of any previous
fiduciary or any allocation of the Trust Estate, nor be responsible for any act or omission
to act on the part of any previous fiduciary.
7.2. Accounting -The Trustees shall be excused from filing any -
account with any court; however, the Trustees shall render an annual account and may,
at any other time, incl�Suding at the time of the death, resignation, or removal of any
Trustees, render an intermediate account, to those p�sons then having a right(whether
discretionary or absolute)to the distribution of income who are then of sound mind ar�
over the age of eighteen (1 S)years. The Trustees shall provide a beneficiary's parent
or guardian with any annual or intermediate account if a beneficiary is a minor or is
incapacitated. The failure to object in writing within 60 days of receipt of such account
shall,constitute a binding and conclusive acceptance of such account by and on behalf
of all persons then having any interest in this Trust, and shall be a complete discharge
to the Trustees and all successor Trustees with respect to all matters contained in the
account to the same extent as though the account had been judicially settled and
allowed by decree or judgment of a court of competent jurisdiction in an action or
proceeding in which all persons ever having, acquiring, or claiming any interest were
duly made parties and were duly represented.
7.3. Dealing With Trust Assets - No power enumerated in this
instrument shall be construed to enable any person to purchase, exchange, or otherwise
deal with or dispose of the principal or income of this Trust for less than adequate and
full consideration in money or monies'worth.
7.4. Bond -Any Trustee shall at all times serve as such without bond.
7.5. Additional Transfers of Property-Any additional transfer of
property to this Trust shall be absolute; provided, however, that the duties of the
" Trustees shall not be increased by virtue of any such transfer without the consent of the
Trustees.
7.6. Resignation - Any Trustee may resign by giving thirty(30)days'
written notice to the Beneficiary. If the Beneficiary is legally incapacitated, the notice
shall be delivered to the Beneficiary's legal representative.
7.7. Compensation of Fiduciary-Any Trustee shall be entitled, without
court approval, to reasonable compensation commensurate with the services actually
performed and to reimbursement for expenses property incurred.
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t ;
7.8. Gustody-At any time there is a corporate Trustee acting, such
c�rporate Trustee shall be the custadian of the Trust Estate and of th� boaks and
records of the Trust and may perform all ministerial acts necessary far the acquisition
and transfer of persanal praperty and maney, including the signing and endorsement of
checks, receipts, stock certificates, and other instruments, and no persan need inquire
into the propriety of any such act.
7.9. Government Benefits Advisor-The Trustees shall have the power
ta retain legal and professionai assistance in administering this Trust and fulfilling its
purpases. In particular, in makir�g a determinatiofl whether#t�distribut income or
principal to or for a beneficiary under the provisions of this Trust, Trustees may engage
a professionaC advisor, knowledgeable on the subject of the availability of funds or
benef#s from government or other sources on account of a beneficiary's mental ar
physical disability or handicap, to advise Trustees concerning the availability of such
funds or benefi#s. The Trustees sha[I be entitled to rely an the advice and informa#ion
obtained from such advisor and shall not be {iable for any act or omission an the part of
the Trustees attributable thereta.
The reasonable costs and expenses of administering the Trust, including
the retention of legal and professional assistance, shall be paid first out of the Trust's
income, and then aut af principaL
SECTION 8, MISCE��ANEOUS PRC)VISIONS
8.1. Ta�c Provision - .
8.1.1. Payment of Tax-The Trustees hereunder shall pay any
incame tax liability of the Beneficiary that resulfs from income received by the Trust but
properly reported on the incc�me tax return of the Beneficiary. The funds used to pay
any such income tax liability shall be paid directly to the apprapriate tax authority and
shall not be available to the Beneficiary. The Beneficiary shall nc�t have any right tc� or
interest in any such funds paid by the Trustees. Any such funds are not a resource of
the Beneficiary and should not be#reated as a distribution of income for purposes of
Medicaid quali�catiQn.
8.1.2. Refiund - In the event of a�ax refund, any amoun#s
refunded shall be paid directly to the Trustees to the extent such refund is attributable to
amaunts previously paid by the Trustee. For purposes of de#ermining whether an
amaun# is attributable to such prior paymen#s, any refund {ir�cl�ding interes##hereon}
shall be afitributed to amounts previausly paid by the Trustees to the extent the Trustees
made any tax payment for the relevant#ax year tha#has not been previously refunded.
For purposes of determining whether an amou�# previously paid has been previously
refunded, any interest inc{uded as part af a refund shaii not be used ta offset a previous
payment by the Trustees.
8.1.3. Dc�cuments -The Beneficiary or his guardian shall execute
any letters, powers af attorney, or other documents required or requested by the taxing
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authority in order to allow payment of any refund to the Trustees, provided that he is sui
juris and has not been adjudicated incapacitated.
8.1.4. Prior Payment- In the event that any tax refund
attributable in whole or part to a prior payment by the Trustees is paid directly to the
Beneficiary or his guardian or other representative, the recipient of such refund or part
thereof shall have no interest in or right to such refund or part thereof and shall hold the
�
amount attributable to a prior payment by the Trustees as an agent of and for the
Trustees and shall immediately turn over such amount to the Trustees.
8.2. Choice of Law-This Trust is to be governed, construed,
and administered according to the Laws of the Commonwealth of Pennsylvania.
� 8.3. Definition of"Issue" -The issue of a person means all his or
her lineal descendants of all generations, with the relationship of a parent and child at
each generation.
8.4. Irrevocability- This Trust is irrevocable.
8.5. Execution in Counterparts-This document may be
executed in any number of counterpart signature pages, all of which together will
constitute the entire, original documents. �
8.6. AMENDMENT
8.6.1. Amendment by Trustees -
8.6.1.1. If, in the opinion of the trustees, this Trust
disqualified Beneficiary for any public assistance benefits, including Medicaid and
Supplemental Security Income (SSI), to which he would otherwise be entitled, the
Trustees are authorized, by written instrument filed with the trust records, to amend this
trust to preserve the Beneficiary's eligibility for such public assistance benefits and to
protect the trust.
8.6.1.2. The Trustees may also amend this trust,
in writing from time to time, to expressly state any such additional power or authority,
and also to limit or grant powers, as are deemed reasonably necessary to obtain or
preserve favorable tax treatment; to address new laws or regulations which affect the
Beneficiary; or as the Trustees determine, in their sole and absolute discretion, is in the
best interest of the Beneficiary and will preserve his eligibility for public assistance
benefits, including Medicaid and SS1.
8.6.1.3. In exercising these powers, the Trustees
shall observe the general fiduciary duties of loyalty, good faith, fairness and due care.
8.6.1.4. The Trustees may exercise this power
from time to time, and may release this power in whole or in part.
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8.6.1.5. Any expense, including attorney's fees,
incurred by the Trustees in connection with these matters shall be paid from the Trust.
I hereby certify that I have read the foregoing Trust Agreement and that it
correctly states the terms and conditions under which the trust estate is to be held,
managed, and disposed of by the Trustees. I approve the trust agreement in all
particulars.
IN WITNESS WHEREOF, John Augustine and Steven Augustine, the Settlors
herein, have hereunto subscribed their names this day of ,
2013.
WITNESS: SETTLORS:
JOHN AUGUSTINE
STEVEN AUGUSTINE
COMMONWEALTH OF PENNSYLVANIA )
) SS:
� COUNTY OF CUMBERLAND )
On this day of , 2013, before me personally
appeared John Augustine and Steven Augustine, known to me known to be the persons
described in and who executed the foregoing instrument in their capacities as Settlors,
and acknowledged that they executed the same as their free act and deed.
Notary Public
My commission expires:
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3
IN WITNE�S WHEREt�F, the pravisions of this trust sha11 bind John Augustine
and Steven Augustine as Trustees, and the beneficiaries of this Trust, as well as their
heirs, executors, personal representatives, successors and assigns on this
day of , 2013 . �
Witness: ACCEPTED:
� JONN AUGUSTINE
Trustee
STEVEN AUGUSTINE
Trustee
COMMC�NWEALTH OF PENNSYLVANIA )
} SS:
COUNTY OF CUMBERLAND �
On this day af , 2013, befare me personally
appeared John Augustine and Steven Augus#ine, known to be#he persons described in
and who executed #he foregoing ins#rumen# in their capacity as Trustees, and
acknowledged that they executed the same as their free act and deed.
Notary Public
My commission expires:
_��_