The protections described in Subsection 75B-1-302(1) may apply to an asset protection trust even if: (1) the settlor serves as a cotrustee or as an advisor to the trustee, except that the settlor may not determine whether a discretionary distribution will be made; (2) the settlor participates in a determination regarding whether a discretionary distribution is made to the settlor by: (a) requesting a distribution from the trust; (b) consulting with the trustees regarding whether a discretionary distribution will be made; (c) exercising a right to consent to or veto the distribution under a power described in Subsection (5)(a); (d) signing documentation in the settlor's capacity as a cotrustee that implements a distribution when the other trustees use discretionary power to independently authorize a distribution; or (e) participating in an action authorizing a distribution if the other trustees can authorize the distribution without the settlor's participation; (3) the settlor has the authority under the terms of the trust instrument to appoint a nonsubordinate advisor or a trust protector who can remove and appoint trustees and who can direct, consent to, or disapprove distributions; (4) the settlor has the power under the terms of the trust instrument to serve as an investment director or to appoint an investment director under Section 75B-2-906; (5) the trust instrument gives the settlor: (a) the power to consent to or veto a distribution from the trust; (b) an inter vivos or a testamentary nongeneral power of appointment or similar power; or (c) the right to receive the following types of distributions: (i) income, principal, or both in the discretion of a person, including a trustee other than the settlor; (ii) principal, subject to an ascertainable standard set forth in the trust; (iii) income or principal from a charitable remainder annuity trust or charitable remainder unitrust, as defined in 26 U.S.C. Sec. 664; (iv) a percentage of the value of the trust each year as determined under the trust instrument, but not exceeding the amount that may be defined as income under 26 U.S.C. Sec. 643(b); (v) the transferor's potential or actual use of real property held under a qualified personal residence trust, or potential or actual possession of a qualified annuity interest, within the meaning of 26 U.S.C. Sec. 2702 and the accompanying regulations; (vi) income or principal from a grantor retained annuity trust or grantor retained unitrust that is allowed under 26 U.S.C. Sec. 2702; and (vii) income from a trust intended to qualify for the federal estate tax or gift tax marital deduction under 26 U.S.C. Sec. 2056(b)(7) or 2523(f); (6) the trust instrument authorizes the settlor, as a beneficiary, to use real or personal property owned by the trust; or (7) with respect to the property held in the trust, the settlor may: (a) give a personal guarantee on a debt or obligation secured by the property; (b) make payments, directly or indirectly, on a debt or obligation secured by the property; (c) pay property taxes, casualty and liability insurance premiums, homeowner association dues, maintenance expenses, or other similar expenses on the property; or (d) pay income tax on income attributable to the portion of property held in the trust, of which the settlor is considered to be the owner under 26 U.S.C. Secs. 671 through 678, which payments will not be considered additional transfers to the trust for purposes of this part.
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