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HomeMy WebLinkAbout02-0500 r .. , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: HOWARD K. HANSEN, III aIkIa TIP HANSEN An Alleged Incapacitated Person No: 2002- .!S DO PETITION FOR APPROVAL OF AMENDMENT OF IRREVOCABLE TRUST AGREEMENT Filed on behalf of Petitioners, Howard K. Hansen, Jr. and Rosann Hansen, Parents and Natural Guardians of Howard K. Hansen, III, aIkIa Tip Hansen. Counsel of record for Petitioners: HANFT & KNIGHT, P.C. Michael J. Hanft, Esquire Attorney LD. No. 57976 Lindsay Gingrich Maclay, Esquire Attorney LD. No. 87954 19 Brookwood Avenue, Suite 106 Carlisle, Pennsylvania 17013-9142 (717) 249-5373 PETITION FOR APPROVAL OF AMENDMENT OF IRREVOCABLE UST AGREEMENT AND NOW, this J)J1!tday of , 2002, come Petitioners, HOWARD K. HANSEN, JR. and ROSANN HANSEN, Parents and Natural Guardians of Howard K. Hansen, III, alkla Tip Hansen, Trustees of the Irrevocable Trust Agreement for the Benefit of Howard Hansen, III, and respectfully represent as follows: I. Petitioners, HOWARD K. HANSEN, JR. and ROSANN HANSEN, are the parents and natural guardians of Howard K. Hansen, III, aIkIa Tip Hansen, who was born April 21,1969. 2. According to Edward A. Franco, Ph.D's May 2,2000 Psychological Evaluation attached hereto as Exhibit "A", Howard K. Hansen, III, aIkIa Tip Hansen, is mildly retarded; "needs some level of supervision in his living arrangements, due to limited intelligence, medical needs (making sure he takes his medicine/monitoring seizure activity), transportation needs (cannot drive), behavior and judgment issues"; and "if you look at Tip more in line with his maturation and intelligence levels, it is obvious that he needs some form of guardianship to ensure his safety and manage his affairs in his best interest." Therefore, Tip is not now and will never be capable of managing the funds provided in the settlement brought pursuant to the National Childhood Vaccine Injury Act of 1986, United States Claims Court Office of the Special Masters, Number 90-2043V. 3. As a result of the settlement referenced in Paragraph 2, above, Howard K. Hansen, III, aIkIa Tip Hansen received the sum of Fifty-one Thousand Nine Hundred Ninety-six ($51,996.00) Dollars which was placed in an Irrevocable Trust for his benefit pursuant to the Irrevocable Trust Agreement for the Benefit of Howard Hansen, III which was established pursuant to Court Order dated May 15, 1992. A copy of said Irrevocable Trust Agreement which was entered into on December I, 1992, is attached hereto as Exhibit "B" and by reference incorporated herein and made a part hereof. 4. Proposed Successor Co-Trustees, ROBERT BRETT HANSEN, and DOUGLAS KEITH HANSEN, both biological brothers of the alleged incapacitated Howard K. Hansen, III, a/kJa Tip Hansen, have reached the age of majority and are willing and capable of acting as Successor Co-Trustees for the Irrevocable Trust Agreement for the Benefit of Howard Hansen, III. The Consents of Robert Brett Hansen, and Douglas Keith Hansen to Amend the Irrevocable Trust Agreement and act as Successor Co-Trustees are attached hereto as Exhibit "c" and by reference incorporated herein and made a part hereof. WHEREAS, the Petitioners desire to amend Paragraph E.II (i) of said Irrevocable Trust Agreement, which paragraph relates to the appointment of Successor Trustees. NOW THEREFORE, the Petitioners hereto, intending to be legally bound hereby, agree as follows: I. Article VI, Paragraph E.II(i) of the Irrevocable Trust Agreement dated December I, 1992 is hereby revoked, and the following is inserted in its place: "(i) If the last surviving individual Trustee dies or becomes disabled without naming a Successor Trustee pursuant to Article Sixth, Paragraph E, Subparagraph II (d) of this Irrevocable Trust Agreement, then DOUGLAS KEITH HANSEN and ROBERT BRETT HANSEN are to be named as Co-Trustees of said Irrevocable Trust. It is hoped that at all times, if possible, at lease one Trustee shall be a relative, friend, or have a personal relation to HOWARD K. HANSEN, III, a/kJa TIP HANSEN. Ifno other person is available to serve as Trustee, then a Bank or any other corporation authorized to act in a fiduciary capacity (and having a capital and surplus of not less than $25,000.00) can be appointed by an instrument declaring such appointment, assented to by such Successor Trustee. In the event a Residential Trustee is required, the Trustees shall appoint someone to serve as such Resident Trustee." 2. In all other respects, the terms and conditions of the Irrevocable Trust Agreement dated December I, 1992 shall continue to be in effect, and the same are ratified except as amended herein. WHEREFORE, Petitioners request that this Court enter an Order approving said Amendment to the Irrevocable Trust Agreement for the Benefit of Howard K. Hansen, III. Respectfully Submitted, HANFT & KNIGHT, P.C. ~ ~. ~ . !. AJ~ '~-Ll L.Mic ael J. Han , E qUi~ ~ Attorney I.D. No. 57976 Lindsay Gingrich Maclay, Esquire Attorney I.D. No. 87954 19 Brookwood Avenue, Suite 106 Carlisle, Pennsylvania 17013-9142 (717) 249-5373 Attorneys for Petitioners F:\User Folder\Finn Docs\WillsI1492-6.petition.2.amend,trusLwpd Franco Psychological Associates 26 State Avenue Carlisle, PA 17013 (717) 243-1896 Fax (717) 243-5297 Licensed Psychologists Margery Andrews M.Ed. lohn-Paul Checkett, Ph.D. Linda Chalk, Ph.D. Kathryn Ellis, Ed.D. Kenneth France, Ph.D. Edward Franco, Ph.D. Lori 1. Hogg, M.S. Davis e. Tracy, Ph.D. Licensed Social Workers Nancy M. Small, A.C.S.W., CAe. Susan McGraw, A.e.S.W. Joanne Chambers, A.C.S. W. Certified Professionals Kay Balcziunas, M.S.N., R.N., C.s. Certified Psychiatric MH Nurse Jo Ann Coslett, Ed.D Certified School Psychologist May 2, 2000 Psvcholoaical Evaluation Howard K. Hansen, III D.0.B.4/21/69 Identifvine- Information: Howard K. Hansen m, who goes by the nickname Tip Hansen is a 30-year-old never married man who has always lived at home with his parents Howard and Roseanne. Tip is the oldest of three boys who suffered a seizure disorder and organic brain syndrome due to an adverse reaction to a DPT shot as an infant. Tip continues to take Dilantin and Tegratol as prescribed by his primary care physician Dr. Albright. Tip completed high school in the special education program and has consistently scored just above the mild mentally retarded range on intelligence tests (scores typically have been in the low to mid 70's throughout his life). Tip has worked full time at McDonalds Restaurant for the past 8 years. Relevant Psvch-Social Historv: Tip's earlier life was spent primarily in northern Virginia due to his father having been a military officer. Despite Tip's brain injury he functioned well in the structured environment of special education and has been reliable and productive in his job at McDonalds. A major frustration for Tip is his seizure disorder, which rules out his driving at this time. He therefore is dependent on his parents to provide transportation to and from work. Tip has two younger brothers, Bobby age 25 a college graduate who is now living at home and will be getting married in July and Douglas age 23 who is finishing college and1iving in Philadelphia. Tip has found very positive social outlets with a small group of friends and through active involvement in the Special Olympics. His parents contacted me to begin family therapy following a number of outbursts that Tip had. These outbursts have typically been precipitated in part by Tip wanting more freedom and independence and Psychological Evaluation May 2, 2000 RE: Howard K. Hansen, III Page 2 becoming very angry with his parents when they have expressed their concerns to him. His involvement in a romantic relationship with a young woman named Jennifer who lives in a supervised apartment program has added to Tip's level of frustration, impulsivity and emotional confusion. This pattern reached a crisis level on February 2, 2000 when Tip left his parents' house and went to a local grocery store to call his friends to come and pick him up. Tip's father reports that Tip assaulted him when he tried to convince Tip to return home. Tip was later evaluated at Crisis Intervention but was not hospitalized at that point in time. Through our family therapy sessions Tip was able to take on some new responsibilities regarding opening his own bank account, managing his own paycheck, and attempting to make better judgments about how he spent his time and money. Unfortunately, Tip again became overwhehned with the emotional turmoil created by his relationship with Jennifer and the related conflict with his parents. Due to his increasing level of anger and impulsivity, he was hospitalized for five days at Philhaven Hospital . While at Philhaven Tip was given Zyprexa and experienced a significant reduction in his level of agitation. He has been maintained on a lowered dose of Zyprexa since his return home on April 4, 2000 and has been able to return to his job. While he continues a friendship with Jennifer, Tip states that they are no longer dating. Referral for Psvcholol!ical Evaluation: Given that Tip had not received a Psychological Evaluation in the past ten years and to further clarifY his diagnosis, he was administered a comprehensive battery of psychological tests. The results are as follows: Intelligence Testing: Wechsler Adult Intelligence Scale - III - 3/20/2000 Verbal IQ 76 Performance IQ 74 Full Scale IQ 73 Verbal Comprehension Index 82 Perceptual Organization Index 72 Verbal Subtests Vocabulary Similarities Arithmetic Digit Span Information Comprehension Scaled Score 4 7 6 6 9 4 PerfOlmance Subtests Picture Completion 6 Digit Symbol-Coding 7 Block Design 6 Matrix Reasoning 4 Picture Arrangement 6 Psychological Eva]uation May 2, 2000 RE: Howard K. Hansen, III Page 3 Results ofthe intelligence testing continue to suggest intellectual ability in the mildly deficient or retarded range. Verbal and performance skills appeared to be evenly distributed suggesting a fairly well rounded intellectua] pattern. These results are consistent with intelligence testing administered in ]988 (W AIS-R full scale IQ 79) and in ]978 (WISC-R full scale IQ 72). Achievement Testing: Woodcock Johnson Tests of Achievement, Form B - 3/27/2000 Word Identification Passage Comprehension Calculation App]ied Problems Dictation Broad Reading Broad Math Proofing Punctuation/Capi ta]ization Spelling Usage Math Reasoning Basic Writing Skills Standard Score 76 76 69 77 71 77 71 76 67 77 79 77 72 Grade Equiva]ent 6.6 6.6 4.2 5.4 4.2 6.5 4.7 4.2 2.7 4.8 4.7 4.2 4.2 Results of the intelligence testing suggest that reading is a relative strength for Tip (approximate]y sixth grade level). Math areas were found to be in the fourth to fifth grade levels while writing was basically around a beginning fourth grade level. All achievement standard scores were found to be commensurate with tested ability. Adaptive Behavior: Vine]and Adaptive Behavior Scale: Interview Edition Expanded From Communication Domain Receptive Expressive " Written Daily Living Skills Personal Domestic Community Standard Score 70 55 Age Equivalent ]2-0 7-10 7-11 13-6 8-6 6-4 6-4 13-6 Psychological Evaluation May 2, 2000 RE: Howard K. Hansen, III Page 4 Standard Score Age Equivalent Socialization Interpersonal Relationships Play & Leisure Time Coping Skills Adaptive Behavior Composite Maladaptive Behavior Domain 57 10-0 14-9 14-3 6-1 56 Significant Mrs. Hansen rated Tip on the Vineland Adaptive Behavior Scale. His overall Adaptive Behavior Composite of 56 was lower than expected based on his intelligence. This suggests that he does not always function to his ability. According to Mrs. Hansen, Tip's relative strengths were in written communication (age 13-6), community skills (age 13-6) as well as interpersonal relationships (age 14-9) and play/leisure time (age 14-3). Relative weaknesses were noted in personal and domestic skills (age 6-4) as well as in coping skills (age 6-1) followed by receptive communication (7-10) and expressive communication (age 7-11). This suggests that Tip may have difficulty living alone as well as dealing with day to day stressors. In addition, his ability to understand what is said to him and effectively express himself was found to be somewhat limited. Relative to other mentally retarded adults (not in residential programs), Tip's adaptive levels were all in the average to above average range. Proiective Measurement The Thematic Apperception Test was also administered. Many of Tip's stories were about someone being upset or depressed. Death was a theme noted in several of the stories. His stories were as follows: 6GF - "She....he's sneaking up behind her and she's stunned" (Q) - no further response 3BM - "He's sitting in room crying" (Q) "because no one likes him or cares about him" (Q) "He'll hang himself." 3GF - "She's upset, crying because shelher husband just left her - she'll walk inside and slam the door." 9GF' - "They're running down the beach and they're trying to find out who can run the fastest. " 7GF - "She's talking to her daughter while she cares for the baby and then she'll go upstairs and put her baby to rest." Psychological Evaluation May 2, 2000 RE: Howard K. Hansen, III Page 5 18GF - "Ilhelher daughter is dying and she just holding and saying his final words to her." 2 - "She/walking down the field while headed home from school and she'll go inside and start her homework." 12M - "He's just standing above the dead body, putting hands on forehead hoping to bring him back from the dead." Generally Tip's responses suggest a moderately high degree of emotionality and emotional reactivity. Nevertheless, the thematic content is very appropriate given the card materials. Tip's abstract limitations were noted by his moderately concrete responses. Results of Previous Testinf!: Dr. Peter Lichtenfeld, M.D., F.A.A.N., Neurologist - 8/30/1991 Mild degree of mental retardation "Employable if tasks are menial and do not require much in the way of sophisticated judgment" "Can function in a semi-independent manner but will always need some degree of supervision although he does not require constant observation." "Will never be totally independent" "Somebody has to be certain that he is taking his medications properly" "Will need transportation provided to him as he is unable to drive" Robert McGee, Vocational Evaluation, 5/4/90 Needed to work on attentiveness, slow work rhythm, initiative, cooperativeness, punctuality, quality of work, wok attitude and behavior Recommended him for Personal Work Adjustment Training Summarv and Recommendations While Tip may not be eligible for the supervised apartment program through MH/MR, it is obvious that he needs some level of supervision in his living arrangements due to limited intelligence, medical needs (making sure he takes his medicine/monitoring seizure activity), transportation needs (cannot drive), behavior, and judgment issues. In many ways, Tip vacillates between child-like and early adolescent types of behaviors. Due to Tip's adolescent emotional adjustment, it may be important for him to gain greater Psychological Evaluation May 2, 2000 RE: Howard K. Hansen, III Page 6 independence from his parents while monitoring this support. Tip may be more receptive to "coaching" from adults other than his parents. In terms of training needs, Tip continues to need reminders/assistance in many areas working towards independent living including: money management, hygiene, medical areas, making appropriate choices/judgment, being able to identifY and express his needs, personal and community daily issues as well as many other day-to-day living areas. In addition, Tip would benefit from coping strategies/anger management to deal with frustrations that he will experience. Further training could take place while he is living at home as well as in a supervised living program. Many training programs do their own entry assessments to determine exactly which areas he would need. While Tip may not qualifY for the supervised apartment program through mental health/mental retardation, he certainly is far from capable of residing on his own. One of the first concerns, would be based on medical needs, as he continues to experience seizure activity. Secondly, Tip tends to be somewhat impulsive and limited in his decision making often responding more like an early adolescent than an adult (refer to above need areas). We certainly would question the appropriateness of a 13-year-old living on their own. If you look at Tip more in line with his maturation and intelligence levels, it is obvious that he needs some form of guardianship to ensure his safety and manage his affairs in his best interest. A supervised living program would be ideal for him at this time. 9 .(? Ji1~ J Ann Coslett, Ed. ., N.C.S.P. Certified School Psychologist ~ IRREVOCABLE TRUST AGREEMENT . FOR THE BENEFIT OF HOWARD HANSEN, IIIIJ ~ THIS TRUST AGREEMENT made this /~ day Of~~~~ , 1992, is established as recommended by HOWARD K. SEN, JR., as his natural father and Petitioner for HOWARD K. HANSEN, III, in a litigation brought pursuant to the National Childhood Vaccine Injury Act of 1986, United States Claims Court Office of the Special Masters, Number 90-2043V. Said Trust Agreement, as ' provided for by the Court in the aforementioned lawsuit in said Case Number, appoints HOWARD HANSEN, JR. and ROSANN HANSEN, as Trustees, or the survivor, all of whose duties, obligations and authorities are set forth below. WIT N E SSE T H : WHEREAS HOWARD K. HANSEN, III, is severely disabled, unable to attend to many of his own needs, is not expected to experience any significant improvement in his condition in the future, is expected to require full-time custodial, habilitative, educational support, supervision, care and assistance for the remainder of his life, and is not now and will never be capable of managing the funds provided in the settlement referred to above; WHEREAS the funds provided by this settlement may not be sufficient to provide for the full extent of all such lifetime care needed by HOWARD K. HANSEN, III; WHEREAS it is the purpose and intent of the Court and the parties herein to provide a system for fund handling, fiscal management, investment, disbursement, personal and attendant care services, advocacy, social and educational development services, habilitation, care, management and guidance for HOWARD K. HANSEN, III, for his entire lifetime; WHEREAS it is also the purpose and intent of the Court and parties hereto to provide for continuing conservation and enhancement of the funds provided in the settlement in order to supplement all other financial services, benefits and entitlements to which HOWARD K. HANSEN, III, might be eligible as a result of his disability, now or in the future, from any federal, state, county or local agency, or through any public or private profit or nonprofit corporations or agencies; WHEREAS it is not the intention of this Trust that the funds provided by this settlement be used to replace, interfere with or reduce any such public or private assistance or benefits to HOWARD K. HANSEN, III, including but not limited to the State of Pennsylvania Medical assistance or Medicaid program or its successor agencies or the United States Social Security Administration. Therefore, all such payments from this Trust shall be supplemental to said benefits and assistance and shall not now or in the future supplant same, but rather shall make maximum use of said benefits and assistance; WHEREAS the Court and the parties hereto desire to place in trust the assets listed in Schedule "A" attached hereto and made a part hereof upon the terms and provisions hereinafter set forth. . WHEREAS the Court and parties hereto may hereafter designate the Trustees as the recipients of other funds which may become payable from any source and at any time, and shall include the, periodic payments set forth in the Court approved settlement to be paid pursuant to the Court Order dated May 1, 1992; and the Court and parties hereto desire that when and as any funds shall be received by the Trustees they shall hold them in trust together with all other property which may be added to the trust estate by any Will, gift, or bequest from HOWARD K. HANSEN, Ill's, family and friends, or in any other manner. NOW THEREFORE, in consideration of the mutual covenants herein contained, the Court and parties hereto do hereby assign, transfer and set over unto the Trustees all of right, title and interest in and to the assets described on said Schedule "A", said assets and all additions thereto being herein referred to as the "trust estate". TO HAVE AND TO HOLD unto the Trustees and their successors in trust for the following purposes and subject to the following terms and conditions: ORIGINAL CORPUS OF TRUST ARTICLE FIRST: Pursuant to the intent of the Court and parties to this Trust instrument, all sums remaining after payment of approved attorney's fees, costs and other obli ations shall be delivered to the Trustees. This sum of $ referred to on the attached Schedule "A", shall const"tute the original corpus of this Trust. These funds shall at no time become available to HOWARD K. HANSEN, III, or be placed in his possession, or corne within the control of his Guardian, except as otherwise provided within this Trust Agreement. ARTICLE SECOND: This Trust is to be irrevocable except as otherwise provided in Article Fifth Paragraph G, or Article Seventh Paragraph E subparagraph 16, and as set forth below, PROVIDED HOWEVER, that the Trustees, as appropriate, shall have the authority to amend the terms hereof without Court approval to carry out the intentions of the Court and the parties hereto in the event that the laws or regulations concerning resources, assets or benefit programs change hereafter. ARTICLE THIRD: The Court and parties hereto intend that whenever "beneficiary" is referred to in this Agreement, it shall mean HOWARD K. HANSEN, III, unless HOWARD K. HANSEN, III, is deceased, or the Trustees, without Court approval, decide to terminate the Trust for the benefit of HOWARD K. HANSEN, III, pursuant to Article Fifth Paragraph G, or Article Seventh Paragraph E subparagraph 16 in which case the reference to - 2 - "beneficiary" means remainder or residual beneficiaries, as appropriate. . GENERAL DIRECTIONS FOR MANAGEMENT OF TRUST ARTICLE FOURTH: Accounting from the date hereof, the Trustees shall collect the income, rents and profits from the trust estate as then constituted, and after the payment of all taxes and expenses, shall authorize the distribution of the n~t income and principal thereof in the following manner: A. It is the Court and parties intention that the extent to which the beneficiary will benefit from this Trust will be determined solely by the Trustees serving as such hereunder, and not by any other person, agent or public authority, regardless of the capacity in which any other person or entity seeks to act. It is the intention that this Trust be a "discretionary trust" and a "spendthrift trust" as the same presently is construed under the laws of the State of Pennsylvania, to the end that no person or entity shall have the right to direct (or to participate in any decision regarding) any payment from this Trust to or on behalf of the beneficiary. In addition, the extent to which the beneficiary will receive the benefits of this Trust will be determined solely by the Trustees serving as such hereunder, and not by any other person, agency or public authority, regardless of the capacity in which any other person or entity seeks to act. This Trust is being established pursuant to the Court Order dated May 15, 1992 and as authorized at 20 C.F.R. Section 416.1246(e), and thereafter the assets directed to this Trust by the Court or other sources should not be deemed to have been or to be available to the beneficiary. This Trust is established under the jurisdiction, and with the specific approval of the Court prior to the transfer of settlement proceeds to HOWARD K. HANSEN, III, or his legal Guardians. Accordingly, it cannot be considered a "Medicaid qualifying trust" as that term has been defined at P. L. 99-272, Section 9506 (42 U.S.C. Section 1396k (a)) ; B. In exerc~s~ng in favor of the beneficiary any discretion herein conferred upon the Trustees, they (in consultation with the beneficiary's Guardians, if any) shall first inquire into the availability of any other public or private funds to cover the cost of making any expenditure that they may contemplate making. It is the parties specific intention that the beneficiary receive the fullest benefits available under any public or private programs providing benefits to which he might be entitled. For the purposes of determining the beneficiary's eligibility for such benefits, no part of the principal or income of this Irrevocable Trust shall be considered available to him. income C. The Trustees shall payor apply so much of the net (and of the principal if necessary in their sole and - 3 - absolute discretion even to the complete exhaustion thereof) of this Trust for the benefit of the beneficiary as they may deem appropriate so as to result in the highest quality of life possible for the beneficiary. No expenditures shall be made for any property, service or expense that could, in the absence of such expenditure, be paid, reimbursed or provided by government or private programs, benefits or insurance, unless the Trustees in their sole discretion determine that the adverse effect resulting from said distribution, such as the loss of eligibi11ty for particular program benefits, is outweighed by the benefit of the distribution for the beneficiary. Such funds should not be used to provide basic food, clothing and shelter, nor be available to the beneficiary for conversion for such items, unless all local, state and federal benefits for which the beneficiary is eligible have been applied for those purposes. Expenditures made under this Article may include, but are not limited to: 1. Expenses necessary to maintain the beneficiary in an appropriate residence, including a private residential facility, as well as to pay for the associated or incidental costs relating to his happiness and well-being. It is desired that the beneficiary be maintained in his home, an apartment or other private residential and/or medical facility, other than a state institution, if such a facility is the most appropriate facility and if the expenditure of funds for such a facility does not conflict with the primary responsibility of administering this Trust in such manner as to result in the highest quality of life possible for the beneficiary. 2. The provision of personal property including but not limited to such items as toilet articles, grooming aids, books, household furnishings, color television, video and related electronic equipment, home computer and related supplies and equipment, stereo and related electronic equipment, records, tapes, hobby supplies, art supplies, toys, musical instruments, educational and therapeutic aids and devices, pets and other personal property as deemed appropriate by the Trustees (in consultation with the beneficiary's Guardians, if any). 3. Reasonable expenses including travel and related expenses incurred in permitting the beneficiary to go to a day program; visit relatives and friends; go on vacation, day trips, field trips, overnight camping trips, summer camps, outings including, but not limited to, movies, the theater, the circus, carnivals, fairs, restaurants, concerts, sporting events, museums, galleries; and participation in programs which provide (a) recreational opportunities including, but not limited to, horseback riding, swimming, sailing, Special Olympics, drama, art; (b) therapeutic opportunities including, but not limited to, physical therapy, speech therapy, occupational therapy or counseling, and (c) vocational and related training opportunities that enhance his ability to be or to remain employed. - 4 - . 4. The payment for services such as medical services including, but not limited to, elective and cosmetic surgery, glasses, contact lenses; dental services including, but not limited to, teeth cleaning, all aspects of cosmetic dentistry, teeth sealing to prevent cavities, treatment (including preventive treatment for periodontal and related gum disease, braces, and crowns); supplemental counseling, behavioral therapy, supplemental occupational therapy, supplemental physical therapy and supplemental speech therapy; services that will ' improve his personal appearance such as diagnosis and treatment for skin disorders (including dermatitis), hair styling, manicure; and any other service which will enhance the beneficiary's dignity, self-image and his sense of well being. . D. In the sole and absolute discretion of the Trustees, they shall be permitted to reimburse themselves or others for such expenses as they (or others including specifically whomever is serving as Guardian of the beneficiary) may incur in connection with the provision of comforts, facilities and services to meet the needs of the beneficiary, including travel and related expenses incurred by relatives, family friends and friends of the beneficiary for the purpose of making periodic visits to the beneficiary; and expenses incurred by relatives, family friends, and friends of the beneficiary in accompanying the beneficiary to work or place of employment, or vacation, day trips, field trips, overnight camping trips, summer camps, outings, or to programs, or for any other activity where in the view of the Trustees, (in consultation with the beneficiary's Guardians, if any) the participation of such relative or friend would be instrumental for the beneficiary's participation in, benefiting from, and enjoyment of such activity. E. The Trustees (in consultation with the beneficiary's Guardians, if any) may,' in their sole and absolute discretion, authorize a periodic evaluation by an independent and appropriately qualified individ~al,or organization of the quality of care received by the beneficiary and appropriateness of other activities engaged in by the beneficiary, including but not limited to, physical condition, determined by an independent physician; appropriateness of educational training programs; opportunities for work and earnings therefrom; participation in recreational, leisure time and social activities; and appropriateness of existing residential environment and program services. It is the parties wish and desire that the Trustees, to the extent necessary and appropriate, authorize such an evaluation on an annual basis. The evaluation shall be based on personal observation of HOWARD K. HANSEN, III as well as contacts with the individuals serving as Guardian, Trustee, caretakers in the beneficiary's residential facility and day program, governmental social work or case management staff, and other related persons or organizations such as, the Personal Support Network, Planned Lifetime Assistance Network (PLAN) or the Association for Retarded Citizens, Association for Children and Adults with Autism, or similar or successor entities, as may be - 5 - appropriate or advisable. The Trustees (and Guardians, if any,) shall take whatever action is necessary and proper to enforce the beneficiary's right to programs and services to which she is entitled by law as well as to ensure the beneficiary's legal rights to education, treatment, privacy, minimum or fair wages for work performed and other civil rights. . F. The Trustees are directed to be aware of any limitations of Subpart K of the Social Security Act or other applicable resource, asset, or income limitations of any public assistance programs for which the beneficiary is eligible, which may affect distributions authorized by the Trustees in the exercise of their discretion hereunder. Accordingly, if in the opinion of the Trustees, a distribution herein would not achieve its full economic benefit as intended, the Trustees are empowered to withhold such distribution(s) or portions thereof until such time as the Trustees determine that the intended benefit would be accomplished by the distribution. G. In the event of a lawful determination by a court or agency of competent authority that the income or principal of this Trust is liable for basic maintenance, support, medical and/or dental care for the beneficiary, which would otherwise be provided by local, state, or federal government or any agency or department thereof, or that the existence of the Trust renders the beneficiary ineligible to receive some or all of his government benefits, or if the Trustees determine that notwithstanding the spendthrift provision, it is likely that or there is a serious risk that this Trust will be subject to invasion, garnishment or attachment, and in addition if the Trustees in their discretion (after consultation with the beneficiary's Guardians, if any) determine that it is not in the beneficiary's best interest to continue this Trust for his benefit, the Trustees, without Court approval, can immediately terminate this Trust. Upon termination of the Trust under this provision, the principal and any accrued and undistributed income of the Trust shall be held, administered and distributed pursuant to the terms of the FAMILY RESIDUAL TRUST as hereinafter provided in Article Fifth of this Trust Agreement. In determining whether the existence of this Trust has the effect of rendering the beneficiary ineligible to receive any governmental assistance benefits to which the beneficiary would otherwise be entitled, the Trustees are hereby granted full and complete discretion to initiate administrative and/or judicial proceedings for the purpose of determining eligibility, and to defend the trust corpus from invasion by any public or private entity, including the initiation or defense of any action at law or chancery, and all necessary and reasonable costs and expenses related thereto, including attorney's fees, shall be a proper charge to the trust estate. - 6 - H. Upon the death of the beneficiary, the Trustees shall distribute the principal of this Trust, including any accrued and undistributed income, as follows: . 1. The Trustees shall be required to expend so much of the trust estate as, in their sole and absolute discretion, is reasonable and necessary to provide for the funeral and burial expenses of HOWARD K. HANSEN, III in " accordance with the desires of his family or Guardians, if any, unless the beneficiary has other resources available for such purpose. 2. The balance of the trust estate shall be distributed as follows: (~ a. One equal share for each other sibling of HOWARD K. HANSEN, III per stirpes and not per capita. The siblings of the beneficiary are ROBERT BRETT HANSEN and DOUGLAS KEITH HANSEN. If any sibling is deceased and is not survived by desyendants, that deceased sibling's share shall go to the other ',siblings or his descendants per stirpes and not per capita. '---" FAMILY RESIDUAL TRUST ARTICLE FIFTH: In the event the Trustees terminate this Trust for the benefit of HOWARD K. HANSEN, III pursuant to Article Fourth Paragraph G of this Irrevocable Trust Agreement, then the principal and any accrued and undistributed income therefrom shall be retained in trust for the benefit of ROBERT BRETT HANSEN and DOUGLAS KEITH HANSEN, during the course of their lifetime. The Trustees shall from time to time pay the above named persons so much of the net income and principal of this FAMILY RESIDUAL TRUST as the Trustees in their absolute discretion deem appropriate to compensate the above named persons or otherwise provide for HOWARD K. HANSEN, III in the manner described in Article Fourth of this Trust Agreement. In making this decision, the Trustees shall take into consideration the extraord~nary needs of the above named persons and the support they have provided to HOWARD K. HANSEN, III during the previous year. It is the parties' intention that the above named persons will insure that HOWARD K. HANSEN, III is taken care of in the manne~ PFovided in Article Fourth of this Trust Agreement. \ _./ B. This FAMILY RESIDUAL TRUST shall terminate upon the death of HOWARD K. HANSEN, III and the principal, including any accrued and undistributed income shall be distributed pursuant to Article Fourth Paragraph H of this Trust Agreement. POWERS AND ADMINISTRATIVE PROVISIONS ARTICLE SIXTH: In the absence of specific restrictions to the contrary, the following provisions shall apply to any Trust created under this Trust Agreement: - 7 - A. All Trusts are intended to be "discretionary trusts" and "spendthrift trusts" and no creditors, including any state or federal agencies furnishing services, benefits or payments to the beneficiary, shall have any right to the income or principal of any such Trust. . B. Protective Clause. The interest of the beneficiary in the trust estate shall not be subject to assignment, sale or transfer in any manner. Such interest shall not be made liable for his debts, contracts or torts or be taken in execution by attachment, garnishment or other proceeding while in the hands of the Trustees. Neither HOWARD K. HANSEN, III nor anyone acting on his behalf, including any Guardian or Conservator of his property, if any, acting in such capacity shall have any interest in either the principal or income of this Trust. C. Facility of Payment. The Trustees, in their sole reasonable discretion, may make any distribution to be made to a beneficiary under this Trust Agreement, in any of the following ways when the beneficiary is a minor or a person who is incapacitated, in the absolute and uncontrolled judgment of the Trustees, by reason of legal incapacity or physical or mental illness or infirmity: 1) to the beneficiary directly; 2) to the Guardian of the beneficiary's person or estate; 3) by utilizing the same directly without interposition of any Guardian for the beneficiary; 4) to a person or financial institution serving as Custodian for the minor beneficiary; or 5) by reimbursing the person who is actually taking care of the beneficiary (even though such person is not the legal guardian) for expenditures made by such person for the benefit of the beneficiary; and the written receipts of the persons receiving such distributions shall be full and complete acquittances to the Trustees. D. Powers of Trustees. The Trustees may exercise all powers conferred by the laws of the State of Pennsylvania, as now enacted and as may be hereafter amended, (incorporated herein by reference). The Trustees shall also have the following specific powers, and the exercise of discretion in the application thereof, which are by way of extension of the general powers incorporated herein, and not in limitation thereof. The Trustees may authorize any action for the benefit and protection of the trust estate which they might take if they were the absolute owners thereof including, but not limited to, the following: 1. To retain any asset if in their sole judgment such retention does not appear detrimental to the trust estate and the beneficiaries thereof, regardless of whether that particular property so retained is of a kind and quality which the Trustees would ordinarily purchase for trust accounts, and regardless of whether such property if retained should constitute a larger portion of the trust estate than the Trustees would ordinarily deem advisable or prudent, so long as such property is used to meet the "special needs" of the beneficiary; - 8 - 2. To invest funds in various assets, including preferred and common stocks, without being restricted by statute, rule of law or court, or practice governing the diversification or investment of trust funds; . 3. To make investment decisions which protect the interests of the current beneficiary. While investment decisions, generally, are made in a manner which takes into account the interests of remainder beneficiaries, the primary concern is for the protection of the current beneficiary (including a beneficiary where payment or income is subject to the discretion of the Trustees). Purchase of a home or other primary place of residence for the beneficiary, or expenditure for any other single item purchase, where the cost of the item to be purchased exceeds twenty-five percent (25%) of the then fair market value of the Trust, shall be considered an investment by the Trustees and not a disbursement. Title to or ownership of such asset shall be maintained by the Trust unless otherwise unanimously agreed to by the Trustees. The Trustees shall have the discretion to allow the primary beneficiary of this Trust to reside in any such home purchased or held by the Trust without payment of rent: Provided, that the primary beneficiary is not eligible for any rent subsidy or housing assistance programs as a result of his disability, or that purchase of such home and residence therein without paying rent does not disqualify the primary beneficiary from receiving otherwise available benefits, or that notwithstanding such benefits or programs, it is in the overall best interest of the primary beneficiary to purchase or reside in such home. 4. To sell, at public or private sale, and otherwise dispose of any asset at such times and upon such terms as they shall deem advisable; to extend the time of payment of any obligation; to foreclose mortgages and bid in property under foreclosure and to hold, lease and manage the same; to continue mortgage investments after maturity either with or without renewal or extension; to partition real estate which may be held jointly or in common with others; and to execute and deliver or to join in the execution and delivery of any options, deeds, leases, including leases extending beyond the duration of the trust estate or other instruments which may be necessary. 5. To compromise, settle or submit to arbitration any claim in favor of or against the trust estate. 6. To borrow money and to pledge or mortgage assets as security for the repayment thereof. 7. To vote in person or by general or limited proxy; to execute guarantees and indemnity agreements; to join ~n, consent to or oppose any deposit agreement, reorganization proceedings, merger, dissolution or other corporate adjustment; to pay any assessment levied thereon; to exercise any option or - 9 - rights given in connection therewith and to hold investments in the name of a nominee. . 8. To distribute in cash or in kind without making pro rata distribution of specific assets and to value assets for any purpose whatsoever, such distribution and valuation to be conclusive against all interested persons. 9. To employ and compensate attorneys and oth~r agents without any liability for default by any such party selected with reasonable care. 10. To sign, execute and deliver all accountings, reports, tax returns or other instruments on behalf of the Trust. 11. To purchase and maintain insurance against such hazards as the Trustees deem appropriate. 12. To receive from any source, including family or friends of HOWARD K. HANSEN, III, other property real or personal, which may be devised, bequeathed, assigned, granted or made payable to the Trustees. All such property shall be added to principal and administered in accordance with the applicable terms of this Trust Agreement. 13. Out of the net annual income of the Trust, the Trustees shall pay to the Personal Support Network, or a similar or successor entity, if utilized, at least annually the fees agreed to under a Personal Care Plan entered into with the Personal Support Network, or a similar or successor entity, for services to and the care of HOWARD K. HANSEN, III. E. Administrative Provisions. In addition to all other powers conferred, the Trustees are authorized to take any action for the purpose of administering the trust estate which they might take if they were the absolute owners thereof including, but not limited to, the following: 1. To retain property in trust without making any charge or other deduction from income at any time and without creating any reserve for depreciation. 2. Court Supervision. To administer the trust estate without Court supervision and without being under its jurisdiction. In the event that application is made to any Court for any purpose in connection with the trust estate or the provisions of this Trust Agreement, it is the parties desire that such Court shall not retain jurisdiction over the trust estate unless requested to do so by the Trustees. 3. To Determine Ouestions. If any question should arise concerning the construction and administration of this Trust, or any clause, matter or things therein contained or with relation thereto, the Trustees acting either on their own judgment or under professional advice, and upon such evidence as - 10 - they shall think fit, may determine such questions, and such determination shall be final and binding on all persons interested thereunder. . 4. To Determine Questions. If, at any time during the continuance of this Trust, any difference of opinion shall at any time arise among the then acting Trustees as to any matter regarding the exercise of any trust, power or discretiqn under this Trust Agreement, the unanimous decision of the . Trustees shall be required. If the Trustees cannot reach unanimous agreement as to any matter regarding the exercise of any trust, power or discretion under this Trust Agreement, an impartial third party or arbitrator will be chosen by the Trustees (or, if they are unable to agree on such third party or arbitrator, by the Court having jurisdiction over the Trust). After being fully informed of the pertinent facts and circumstances, that third party or arbitrator will make the final decision as to the action(s) to be taken on the disputed exercise of power hereunder. 5. Compensation of Trustees. The Trustees shall be entitled to receive commissions and allowances as from time to time provided or permitted by law, so long as such fees are reasonable and customary and generally in accord with practice in the community at that time, for each separate Trust created by this Trust Agreement. All commissions shall be charged against principal except that portion thereof which represents commissions on income which shall be charged against income. It is not anticipated that the original Trustees will receive commissions. However, they are permitted to do so. 6. Similar Trusts. To combine this Trust with any other Trust(s) created for the benefit of the beneficiary which are being administered under similar terms and conditions. 7. Transfer of Situs of Trust. With respect to the Trusts established under this Trust Agreement, the individual Trustees may transfer the situs of the Trust to any jurisdiction they deem proper except that such situs shall not be transferred in the event the Trust would become liable for the cost of care for the beneficiary. 8. Like Powers to Successor Trustees. All powers, duties and responsibilities herein bestowed upon the Trustees are hereby bestowed upon the Trustee or Trustees acting hereunder from time to time. 9. To Retain Counsel and Professional Advisors. Whenever the Trustees shall require expert advice or assistance, in carrying out the Trust or exercising any power, in any matter arising under this Trust Agreement, they shall be permitted to consult and employ such professional experts as they may require, at such fees as they may deem reasonable, and the said fees shall constitute an expense of the administration of the Trust. - 11 - 10. To Resiqn. Any Trustee, who may be acting hereunder from time to time, is hereby given the right at any time, by sending notice by registered or certified mail, to the last known address or addresses of the other known Trustees, to resign at the expiration of the period of thirty (30) days from the date of such mailing. Such resignation shall become full and effective, and thereafter the Trustee so resigning shall be discharged from any further duties or obligations hereunder. , Such right of resignation shall be a continuing one and any Trustee acting hereunder from time to time shall have a like right to resign. Upon the resignation's becoming full and effective, the Trustee so resigning shall transfer, pay over and deliver the trust property then in his hands to the remaining Trustee or Trustees, and the receipt of such remaining Trustees, shall be a full acquittance and discharge to the Trustee so resigning. . 11. Co-Trustee. Successor Trustee. (a) Appointment of Co-Trustee. The Trustees (acting jointly if more than one) may appoint (or remove) one or more Co-Trustees. (b) Who may be appointed. A successor or Co-Trustee may be an individual or corporate Trustee, and may be domiciled anywhere. (c) Procedure for Appointment. Appointment shall be made by written instrument filed with the trust records. (d) Appointment of Successor Trustee by Trustee. At any time after qualifying as Trustee, any Trustee may appoint a successor Trustee to act in his place, either immediately or in the future upon any stated contingency, with the consent and approval of the other Co-Trustee(s). If an original Trustee dies, becomes disabled, or resigns without naming a successor Trustee, then the last surviving original Trustee shall have the power to appoint additional successor Trustees. (e) In so far as such powers and duties are capable of being legally assigned or delegated, a Co-Trustee may assign and delegate any part or all of the rights, powers, titles, duties, discretions and immunities granted to or imposed upon such Co-Trustee to any other Co-Trustee(s) with the consent of the latter. Such assignment or consent by a Co-Trustee shall be done by an instrument in writing sent by registered or certified mail return receipt requested to the other Co-Trustee(s). Any such assignment or delegation may be either for a specified time or until such assignment or delegation is revoked by a similar written instrument sent by registered or certified mail return receipt requested to the other Co- Trustee(s), and acknowledged by the other Co-Trustee(s) through the same written procedure. - 12 - . (f) The Co-Trustees may execute any instrument or document in connection with the investment, administration, or distribution of the property of such Trust by signing one instrument or document or concurrent instruments or documents. . (g) The corporate Trustee, if any, may have custody of the trust property and may handle the ministerial~cts advisable for the acquisition and transfer of personal property and money, including the signing and endorsement of checks, receipts, stock certificates, and other instruments. (h) Removal of a corporate Co-Trustee. In the event that the individual Trustees shall nominate and appoint a corporate Trustee as Co-Trustee, the parties hereby expressly provide that the individual Trustee or Trustee(s), acting hereunder from time to time, shall have the right of removal of the corporate Trustee, and that said right of removal shall be continuing one. In the event that the removal of the corporate Trustee shall be determined upon by the individual Trustees, who may be acting hereunder, the said individual Trustees shall do so by an instrument in writing, duly signed, sealed, acknowledged and delivered to the corporate Trustee, and upon receipt thereof, the corporate Trustee then acting shall no longer act under the Trust herein created, and shall transfer over and deliver the trust property then in its hands to the remaining Trustees. (i) If the last surviving individual Trustee dies or becomes disabled without naming a successor Trustee pursuant to Article Sixth Paragraph E subparagraph lId of this Irrevocable Trust Agreement, then first, ROBERT BRETT HANSEN and second, DOUGLAS KEITH HANSEN, when of legal age. It is hoped that at all times, if possible, at least one Trustee shall be a relative, friend, or have a persona~,relation to HOWARD K. HANSEN, III. If no other person is available to serve as Trustee, then a Bank or any other corporation authorized to act in a fiduciary capacity (and having a capital and surplus of not less than $25,000,000) can be appointed by an instrument declaring such appointment, assented to by such successor Trustee. In the event a resident Trustee is required, the Trustees shall appoint someone to serve as such resident Trustee. (j) All powers and discretions conferred upon the original Trustees shall pass to and devolve upon its successors and wherever the Trustee is referred to it shall be construed to refer to whoever may from time to time be acting as Trustee. 12. Provisions for Bank Accounts. The Trustees shall maintain such checking, savings, brokerage, mutual funds and/or savings and loan accounts for this Trust which, in the sole judgment and discretion of the Trustees, shall be necessary or advisable. - 13 - . 13. To the extent that there is no other individual or entity assisting the beneficiary, or his Guardians, if any, in identifying or obtaining governmental benefits, the beneficiary or his Guardians may seek whatever assistance they may desire or require from the Trustees in obtail~ing these benefits, including the collection and expenditure thereof. If the beneficiary is disabled and unable to support herself independently, the Trustees shall, in the exercise of their best judgment and fiduciary duty, seek support and maintenance for' said beneficiary from all available public resources. Accounts shall be maintained for the receipt and expenditure of all such government benefits, which shall be kept separate at all times from the Trust assets, shall be expended prior to Trust assets, and shall not be commingled with Trust funds. . 14. The Trustees may, at any time, but in any event periodically, shall render an account of their transactions with respect to the trust estate to the surviving parent, of HOWARD K. HANSEN, III or to his Guardian(s), if any, or to the Personal Support Network, or a similar or successor entity, if utilized. The approval of such account shall be final and binding upon all persons as to all matters and transactions shown in the account. 15. Out of the net annual income of the Trust, the Trustees shall pay to the Personal Support Network, or a similar or successor entity, if utilized, at least annually the fees agreed to under a Personal Care Plan entered into between the parties and the Personal Support Network for services to and The care of HOWARD K. HANSEN, III. 16. Discretionarv Termination. This Trust may be terminated by the Trustees, without court approval, whenever, in their sole and absolute discretion, the Trust properties are insufficient to justify its continuance. Upon termination of the Trust under this paragraph the Trustees shall distribute the remaining Trust properties pursuant to Article Fourth, Paragraph H of this Trust Agreement. G. Additional Miscellaneous Provisions. 1. Captions. Captions used in this Trust instrument are reading aids only and shall not be deemed to affect the interpretation or application of any provision of the trust instrument. 2. Severability Clause. If any provision of this trust instrument is unenforceable, the remaining provisions shall nevertheless be carried into effect. IN WITNESS WHEREOF, the Trustees ~e nder, havA0~xec~ this Irrevocable Trust Agreement this / day of ~ ' 1992. - 14 - WITNESS: . ~~--- - .' - _.- ---= / ~~~~ :::::Y O:F ~~~ ?~7a:~0- , to-wit: (SEAL) TRUSTEE (S~AL) On this 1st day of [)&.eMber , 1992, before me, the subscriber, a Notary Public in and for the State and aforesaid, personally appeared HOWARD K. HANSEN, JR. and made oath in due form of law that he executed the foregoing instrument for the purposes therein contained, and acknowledged the same to be his act. My Commission expires: ~ tJ4/--4 J I !,W, , l~~9~1 i,'errt:er; Penns'ltJam1Association ofNotaris-s STATE OF fJ~/lS\J1v4n ia. / COUNTY OF r:uNlj,~rI4I'1J , to-wit: On this 1st: day of D~ceWlj,er , 1992, before me, the subscriber, a Notary Public in and for the State and aforesaid, personally appeared ROSANN HANSEN and made oath in due form of law that she executed the foregoing instrument for the purposes therein contained, and acknowledged the same to be her act. ~~~-fd~~ NOj.".RY PlJB:b*G Nota.a! Seal Warm K Huna:. NotYy Plblo ! L~,~,~~~ My Commission expires: , .,:'rrb:?r. Pfnrtsvt/?...Il':J As.soc:::i.tion of Not~r<:,::. - 15 - , . AGREEMENT I, Douglas Keith Hansen, hereby concur with the Petition for Approval of Amendment of Irrevocable Trust Agreement for the Benefit of Howard K. Hansen, III, aJk/a Tip Hansen, on behalf of Howard K. Hansen, Jr. and Rosann Hansen. Furthermore, I consent to be named as a Successor Trustee for the Irrevocable Trust Agreement for the Benefit of Howard Hansen, III, alkla Tip Hansen, which Trust is dated December I, 1992. I understand that I may choose to refuse to act as a Trustee at a later date. WITNESS: '-...../' // ~.. \- ./ ->'0 /"\----" . '. ,'C.) ~\ L. _ Keit~ansen F\User FolderlFirm Docs\Wills\1492-6.dkh,agreewpd , , . AGREEMENT I, Robert Brett Hansen, hereby concur with the Petition for Approval of Amendment of Irrevocable Trust Agreement for the Benefit of Howard K. Hansen, III, alk/a Tip Hansen, on behalf of Howard K. Hansen, Ir. and Rosann Hansen. Furthermore, I consent to be named as a Successor Trustee for the Irrevocable Trust Agreement for the Benefit of Howard Hansen, III, alk/a Tip Hansen, which Trust is dated December I, 1992. I understand that I may choose to refuse to act as a Trustee at a later date. WITNESS: /...) // ;/;:~ .'. /\~ ~( (/.- / "'-L ,/ .-;-: ';/0" ----//~~._'_e_<-' ]~- " i /..---Jl..'l:> \ L- ~;(~~ -- Robert Brett Hansen F,\User Folder\Firm Docs\Wil1s\1492-6.rbh.agree.wpd , , l- MAY 2 1 tOO? ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: HOWARD K. HANSEN, III, a/k/a TIP HANSEN, An Alleged Incapacitated Person No: 2002- 50 0 ROF AND NOW, to wit, this 1i: day of , 2002, upon consideration of the foregoing Petition for Approval of Amendment of Irre ble Trust Agreement, IT IS HEREBY ORDERED AND DECREED that the 2002 Amendment to the Irrevocable Trust Agreement for the Benefit of Howard K. Hansen, III, a/k/a Tip Hansen, is hereby approved, and Petitioners are authorized and directed to execute said Amendment. BY THE COURT: J. "'\J ",'O',^, ,C) F:\User Folder\Firm DlX:sIWj]]s\1492-6amend,trust.order.wpd