The U.S. Department of Labor has recently issued a document (Administrator’s Interpretation No. 2015-1) that offers business owners additional guidance for properly classifying an “employee” vs. an “independent contractor.” The historic “economic realities” test, widely used by courts when determining a worker’s classification, consists of a number of factors that have over time been applied inconsistently and with certain factors given substantial weight over the others. The Administrator’s Interpretation does not change or reject the economic realities test, but rather sheds light on proper application of the test based on the circumstances. 

In my previous blog, Part II – Decanting, I addressed the option where a trustee exercises his or her discretion in making distributions for the benefit of a beneficiary and, rather than distribute the property from the trust outright, the trustee distributes property in further trust. This modification provides an alternative when the results intended by the original trust instrument cannot be successfully achieved as the trust is actually administered.

As a further safeguard to ensure a grantor’s intent is fully and faithfully executed, we now move to the top step in our ascending staircase of Trust Modification options: modification by Trust Protectors. 

In Part I of this blog series on Trust Modification, I addressed the first three (the simplest) modification options: Reformation, Procedural Modification and Equitable Deviation. Let’s continue up the stair steps to Part II and the more complex option of decanting.