Hecker v. Stark County Social Service Board , 527 N.W.2d 226 ( 1995 )

VANDE WALLE, Chief Justice,

dissenting.

In a dissent in Nielsen v. Cass County Social Services Bd., 395 N.W.2d 157, 162 (N.D.1986), I stated that “I am not yet willing to concede that our society, at least in North Dakota, is at a place where we should assume that decedents would cast them relatives on the welfare roles to reserve their estate for other family members.” The majority, relying on cases from other jurisdictions, takes a big step in reforming what I believe to be the North Dakota ethos.

Relying on Bohac v. Graham, 424 N.W.2d 144 (N.D.1988), the majority holds the administrative regulation which defines eligibility for medical assistance benefits is void because it “supersedes our case law holding that the settlor’s intent determines whether a trust is a support or a discretionary trust.” But we did not decide the issue of whether the department policy was valid in Bohac. Rather, the only issue was whether the trust was a discretionary trust or a support trust. I agree with the majority that the trust in this case is a discretionary trust and that this particular trustor intended to have the taxpayers pay for the basic care for her developmentally disabled son, notwithstanding assets she left for his care. I do not agree that the Department has superseded our case law by its regulation. It is given specific authority by section 54-24.1-02(3), NDCC, to enact rules and regulations for eligibility for medical assistance for needy persons. The issue of what the trustor intended, which we decided in Bohac, is a different issue than that of whether the intent of the trustor makes the beneficiary eligible or ineligible for medical assistance for the needy under the Department regulations. A trustor may have an intent to create a trust contrary to law. Bo-hac did not decide that the trust, although contrary to law, would be valid because of the trustor’s intent.

I dissent consistent with the reasons set forth in my dissent in Nielsen v. Cass County Social Services Bd., supra.

SANDSTROM, J., concur.