Q: Does trustee (older brother) have full discretion at his whim whether other siblings have qualified needs for withdrawl?
clause: "If, at any time in the discretion of the Trustee, any child should be in need of funds for his or her proper care, health, support, maintenance ad education, the Trustee may...pay to or apply for the benefit of such child such amounts from the principal of his or her Trust Estate, up to the whole thereof, as the Trustee may from time to time deem advisable." further "In exercising discretionary authority...Trustee shall not be required to take into consideration any income or other means of care, maintenance, support, or education available to such beneficiary from sources outside the Trust."
At issue: I'm in debt (loans and credit cards) due to ongoing family law case. My siblings and I don't get along. I don't trust my brother to agree to disbursements of principal for me. I have to continue the family law case given complexity and concerns for child abuse. Thus, are there criteria the Trustee must follow re: appropriate decisions?
A:
In Ohio, the trustee must act reasonably and in good faith when exercising a power that has an ascertainable standard, such as the trust you have. Here is the Ohio statute:
5808.14 Judicial standard of review for discretionary trusts.
(A) The judicial standard of review for discretionary trusts is that the trustee shall exercise a discretionary power reasonably, in good faith, and in accordance with the terms and purposes of the trust and the interests of the beneficiaries, except that with respect to distribution decisions a reasonableness standard shall not be applied to the exercise of discretion by the trustee of a wholly discretionary trust. The greater the grant of discretion by the settlor to the trustee, the broader the range of permissible conduct by the trustee in exercising it....
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